Constitution and Colonialism
As a document, the constitution usually means institutionalising the Government structure and regulating the relations among the state institutions.[409] However, the modern concept of the constitution cannot be separated from the principle of constitutionalism influenced by the liberal political philosophy that focuses on limiting government power in favour of the individual.[410] For instance, Charles McIlwain argues that the objective of the constitution ‘is a legal limitation on government; it is the antithesis of arbitrary rule; its opposite is despotic government, the government of will instead of law’.[411] Bui Ngoc Son proposes that the nature of the constitution as the antithesis of absolutism and arbitrary government can encourage the emergence of an anti-colonial constitution only if the colonial government acts predatorily and abusively towards its colony.
This action could prompt newly independent states to borrow the terminology and ideas of constitutionalism to oppose the arbitrariness arising from the colonial period.[412]However, a constitution can also embody colonial characteristics. As Jose Maria Monzon argues, that is especially the case if such a constitution ‘recognizes the political dominance of a foreign state, placing the supreme normative power outside its frontiers’.[413] These colonial characteristics are present in the constitutions formed by colonial states to regulate their colonies, such as the Government Regulation of 1854 or the Constitution of the Netherlands Indies, which the Dutch Government formed to regulate its colonies in what is now known as Indonesia. In addition to the constitutions that the colonial government formed, many constitutions of post-colonial states in Asia and Africa often were drafted by imitating the constitutions of their former colonisers.[414] Usually, these constitutions follow the constitution of their former colonial masters when regulating the relationship between the executive and the legislature.[415] For example, countries that previously were part of the British colony tend to adopt the Westminster style of government, which places the Prime Minister as the head of the Government and who is responsible to Parliament. Meanwhile, former French colonies usually chose to adopt a presidential system in their constitution, similar to the Constitution of France’s Fifth Republic, which - despite using a hybrid government system - provides a strong position for the President.[416]
So, many post-colonial states adopt elements of their colonisers’ constitutions into their own for various reasons.
For instance, many constitutional drafting processes in post-colonial states resulted from the active involvement of their colonisers. This is especially prevalent in countries that achieved independence without conflict and war. In most post-colonial states, elites who received their education from the educational system of their former colonial master are more likely to adopt the constitutional system of their former colonisers because of their familiarity with the system.[417]In the case of Indonesia, the 1945 Constitution drafters claimed it embodies a solid anti-colonial character. The first sentence in the Preamble of this Constitution even goes so far as to state that ‘independence is truly the right of all nations and therefore colonization in the world shall be abolished, as it is not following humanity and justice’. However, as I will show in this chapter’s following sections, this Constitution also imitates some provisions from the Constitution of Indonesia’s former colonial master. It has likewise adopted some principles previously used by Indonesia’s colonisers to maintain their colonial hegemony. The following section will specifically discuss how the drafting process of this Constitution - which the colonialists heavily influenced - played a significant role in leading the drafters to adopt colonial values.
III.