Implementation: The Rise of the Authoritarian Constitution

By concentrating state power in the hands of the President, the 1945 Constitution often resulted in an authoritarian government - from Soekarno and his Guided Democracy regime (1959-1966) to Suharto and his New Order regime.⁶² When applied, the 1945 Constitution gives too much discretion to the executive branch of the Government to regulate the organisational structure of other state institu­tions.

This was evident through the works of the MPR during the two periods mentioned above. On paper, the 1945 Constitution posited that the institution is to function as the highest state institution, supervising the President. It requires the MPR to consist of DPR members plus the representatives from the regions and interest groups. Regarding how the members of the MPR are appointed, the 1945 Constitution required such a mechanism to be regulated in the legislation made by the President. This condition provided the ability for the President to be able to appoint members that were loyal to his government. During the reign of President Soekarno, for example, out of 609 members of the MPR, more than half consisted of regional and interest group representatives (326) appointed by the President. As a result, Soekarno succeeded in overwhelming the MPR with supporters, who later appointed him as President for life.⁶³

The author specifically allocated one of the chapters of the book to Soekarno’s view about the ‘Ratu Adi! (Just King). See Tjantrik Mataram, Peranan Ramalan Djojobojo dalam Revolusi Kita (Fourth Edition) (NV Masa Baru, 1966) 47-50.

⁶⁰ Thomas Anton Reuter, ‘Once and Future King: Utopianism as Political Practice in Indonesia’ in Pablo Guerra (ed), Utopia: 500 ahos (Ediciones Universidad Cooperativa de Colombia, 2016) 302.

⁶¹ ibid 303.

⁶²See Tim Lindsey, ‘Indonesian Constitutional Reform: Muddling towards Democracy’ (2002) 6 Singapore Journal of International & Comparative Law 244, 245.

⁶³ Kawamura (n 23) 67.

Meanwhile, after Suharto overthrew Soekarno’s regime with support from the military in 1966, the New Order government continued its predecessor’s policy of filling the MPR with their loyalists. Through Law No 16 of 1969 on ‘the MPR, DPR, and the Regional Parliament (DPRD)’, Suharto made half of the MPR member positions (460 from 920) filled with regional and interest group representatives, of which 155 seats were allocated for representatives from the armed forces.^[457] Suharto also weakened then-existing political parties by limiting campaign activi­ties, especially at the village level, while strengthening the role of the Government’s Party, Golongan Karya (The Functional Group or Golkar).^[458] As a result, Suharto also managed to fill the MPR with his supporters, which appointed him as President for eight consecutive periods before finally falling from power in 1998.

The 1945 Constitution also encourages the Government to restrict the judi­ciary since Article 24 of the 1945 Constitution gives the Government - as the leading lawmaker - the power to regulate the organisational structure of the judiciary. During the Guided Democracy period, President Soekarno used this authority to excessively restrict the judiciary. Through Law No 19 of 1964, he gave the President the authority to intervene in any stage of the judicial process for the reason of ‘revolutionary interests’.^[459] Soekarno’s regime also positioned the judici­ary as subordinate to the executive. In 1962, President Soekarno appointed Chief Justice of the Supreme Court, Wirjono Prodjodikoro, a Minister in his cabinet, while maintaining Wirjono’s position as Chief Justice. Symbolically, in 1963, his Government, through the Ministerial Decree, also forced the judges to strip off their traditional black robes and replace them with brown suit uniforms used by the Indonesian civil servants.^[460]

The policy to subordinate the judiciary under the executive continued during the Soeharto New Order regime, even though this regime abolished the President’s authority to intervene directly in the judicial process.^[461] In Law No 14 of 1970, the Suharto Government positioned the Department of Justice (located under the Ministry of Justice) as an institution that could regulate the court’s administrative matters, including the transfer and promotion of judges.

Besides providing a platform for the Government to run its authoritarian regime, the absence of human rights norms in the 1945 Constitution enabled these two regimes to commit many human rights violations. In the Guided Democracy regime, the Soekarno Government forbade political parties that opposed his regime to conduct activities as they were considered counter-revolutionary actions.^[464] Meanwhile, during the New Order era, the absence of human rights guarantees allowed the Government to perform violent actions against its people without the worry of being sanctioned by the court, such as the mass killing of the Indonesian Communist Party members in 1965, the Tanjung Priok massa­cre in 1984, and the sacking of the Indonesian Democratic Party headquarters in 1996.^[465]

Many colonial values in the 1945 Constitution had contributed to cultivat­ing oppression in an independent Indonesia. In the colonial era, the principle of concentration and responsibility upon the executive aimed at ‘the maintenance of colonial political power and domination’.^[466] The colonial powers reasoned that Indonesians, especially those belonging to the indigenous population - repre­sented in the Volksraad - were not ready to perform self-government. In the 1945 Constitution, native autocrats used this principle in the same way as their former colonisers. The goal was to maintain their political dominance over the general population since they believed that the Indonesian society was not ready to imple­ment a liberal democracy that allowed people to participate in political activities. In their view, democracy would only lead to social division and conflict.^[467]

VI.