Introduction
The 1945 Constitution was enacted on 18 August 1945 - one day after Indonesia declared independence. So far, it is the longest-serving and the most resilient constitution in Indonesia.
However, two other constitutions in the 1950s briefly replaced it, both of which possess far more democratic substance.2 Many Indonesians regard the 1945 Constitution not only as the supreme law of the land but also as a symbol of the manifestation of Indonesia’s struggle for independence from colonialism.3 The document is often hailed as having prominent anti-colonial characteristics, especially against the colonialism carried out by Western countries towards Asian nations.4 The anti-colonial nature of this Constitution refers back to the process of its formation. Soekarno - one of its drafters and, later, Indonesia’s1 Andrew Ellis, ‘The Indonesian Constitutional Transition: Conservatism or Fundamental Change’ (2002) 6 Singapore Journal of International & Comparative Law 116, 117.
2Indonesia used two other constitutions in 1949 to 1959, the Federal Republic of Indonesia Constitution 1949, which served until 1950, and then the Provisional Constitution of Indonesia 1950, that served from 1950 until 1959.
3 See Ellis (n 1) 116-17.
4See Abdurrachman Satrio, Constitutionalizing the Family State Ideology in Southeast Asia: The Case of Indonesia and Singapore (LLM Thesis, Central European University, 2021) 8-9, available at www.etd. ceu.edu/2021/pratomo_abdurrachman.pdf.
first president - firmly believed that the Constitution should not abide by Western Liberal Philosophy because it prioritises individual rights. Soekarno claimed that such a principle would encourage the emergence of economic liberalism - a notion that triggered many Western countries to colonise Asian people.[402]
Soepomo, the primary drafter of the 1945 Constitution, further rejected this liberalism.
He decided not to adopt into the Constitution several doctrines related to liberalism, such as separation of power and human rights protection. In Soepomo's view, these doctrines - based on liberal thinking that prioritises individual interest - are not in line with the traditional Indonesian society culture, which prioritises communal interest above the individual and, therefore, emphasises trust toward the ruler.[403] For this reason, Soepomo then initiated the integralist concept (also known as the family state or negara kekeluargaan), which he believed resulted from the political tradition of Indonesian indigenous society and became the basis for creating the 1945 Constitution. According to this concept, the state is analogous to a large family, where the ruler acts as the parent or head of the family, and the people act as their children.[404] This led many Indonesian scholars to conclude that the 1945 Constitution was an anti-colonial constitution because, apart from being formed to counteract Western colonisation, it embodied traditional values essentially free from Western influence.[405]The belief that the 1945 Constitution symbolises the struggle against colonialism also made this document sacred to many. This sentiment is evident in how the document was treated during its servitude from 1959 to 1999. During the period, there was a common myth among the public that the 1945 Constitution was a document that could not be changed at all.[406] Even when Indonesia transitioned to democracy in 1998 - followed by public demands to democratise the constitutional order - this belief survived among some Indonesian politicians, many of whom argued that replacing the 1945 Constitution with a new constitution was equal to dissolving Indonesia as a nation.[407] This prevailing sentiment led the People's Consultative Assembly (MPR) - the institution authorised to amend the Constitution - to decide only to amend the 1945 Constitution rather than replace it as Indonesia transitioned to democracy from 1999 to 2002.
Moreover, despite the amendment’s success in democratising the contents of the Constitution, a sentiment opposing the final results and the entire amendment process has remained in some fractions of the MPR.[408]Furthermore, the belief that the 1945 Constitution has a solid anti-colonial character seems deeply rooted in most Indonesians’ minds, including its scholars. However, by focusing on the process of its formation, I will argue that the Constitution still embodies a powerful colonial influence. Despite being hailed otherwise, evidence has shown that Soepomos’ integralist concept - a concept claimed to result from traditional Indonesian culture and to be the ultimate basis of the 1945 Constitution - was designed based on colonial logic. Of course, the influence of colonial values on the 1945 Constitution partially resulted from Japan’s heavy involvement throughout its formation. Japan, at that time, was still colonising Indonesia. Besides, the existing disagreements between the framers of the 1945 Constitution concerning the position of Islam also strengthened the cause for the drafters to adopt provisions that originated from the colonial era. I will also explain in this chapter why despite its strong colonial influence, the 1945 Constitution can still symbolise a strong anti-colonial character obtaining a sacred status in the eyes of many Indonesian people.
II.