The Making of the 1945 Constitution
The drafting process of the 1945 Constitution took place in a short time near the end of the Japanese colonial rule in Indonesia, from May until August 1945. Two institutions primarily conducted it: The Investigating Committee for the Preparation of Independence (BPUPKI) and the Committee for the Preparation of Independence (PPKI).
The Japanese Colonial Administration formed these two institutions to fulfil Japan’s promise to give independence to Indonesia, in exchange for Japan’s demands on Indonesian people to help them fight the Allied forces, with the BPUPKI founded on 29 April 1945,[418] and the PPKI on 12 August 1945.[419] These two institutions played different roles during the creation of the 1945 Constitution. While the BPUPKI - which worked from 29 May to 17 July - was tasked with the duty to write the text of the Constitution, the PPKI - which convened only on the 18th of August 1945 - was in charge of correcting the draft that BPUPKI had formed and ratifying the final product.Although one Japanese observer argued that the Japanese colonial administration had chosen a non-intervention policy during the drafting process of the 1945 Constitution by the BPUPKI,[420] a more careful observation reveals that Japan’s involvement was robust. It is especially evident in the selection of BPUPKI members; most had come from Javanese backgrounds (the biggest ethnic group in Indonesia) or had previous experience working with the Japanese 16th Army stationed on Java.[421] Besides, even though some local scholars naively claim this institution represents every group in Indonesian pluralist society, including ethnic minorities such as the Arabs and the Chinese,[422] their number was minimal. In fact, this institution also had only two female members. Meanwhile, some political groups that were playing an active role against the Japanese occupation - such as the leftists and the youth - were excluded from this process.[423] The Japanese influence during the BPUPKI session provoked strong anti-colonial narratives in this process directed explicitly against the Dutch, leaving Japan to receive praise for ‘helping’ to end Western colonialism in Asia.[424]
The desire to form a constitution free from Western colonial influences prompted the framers of the 1945 Constitution to expressly reject a constitution based on liberal thinking.
In his speech at the BPUPKI session on 15 July 1945, Soekarno pointed out that liberal thinking - characterised by the inclusion of individual rights in the constitutions - is the root of Western colonialism and imperialism against Asian nations.[425] He believes that the existence of individual rights is a symbol of individualist values, which will then give rise to capitalism. According to Soekarno, capitalism emphasises economic competition that triggers Western nations to compete, thus colonising other nations in Asia and Africa to exploit their people and natural resources in the name of such competition.[426]Based on that perspective, the BPUPKI members forcefully searched for other concepts outside liberalism to serve as the basis for the constitution they would form. During such a process, the main architect of the 1945 Constitution, Professor Soepomo, was an expert on adat (indigenous) law, and he was also Indonesia’s most respected legal scholar at the time. He argued that the constitution they were about to create should be based on ‘Indonesia’s indigenous constitutional tradition’ (sifat tatanegara Indonesia asli),[427] which he termed the integralist concept. In Soepomo’s view, Indonesian society results from the unity between the people and its leader (manunggalingkawulogusti). The concept implies that government leaders must be willing to unite their souls with the people under the spirit of kinship. This means that in such a society, the government leaders will perform their role like the head of the family (parents) who are tasked with the duty to guide their children (the people).[428]
To equate a government-people relationship with a familial relation bore consequence; believing that the government leader - the community’s ‘parent’ - could not act in bad faith towards their ‘children, the integralist concept rejected the existence of human rights. In Soepomo’s view, the guarantee of human rights ultimately embodies a liberal mindset that perpetually suspects the government’s goodwill.
Thus, in a country based on the principle of kinship, Soepomo believed that ‘the attitude of citizens is not an attitude that always asks “what are my rights?” but the attitude that asks: what are my obligations as a member of a large family, in this Indonesian state?’[429] Likewise, Soepomo considered that in the constitution they formed, there was no need to adopt the separation of power doctrine similar to the constitutions of Western countries since it was also a manifestation of liberal values which emphasised suspicion towards the government.[430]Furthermore, Soepomo was adamant that their constitution did not need to adopt a judicial review mechanism; he viewed such a mechanism as the manifestation of the separation of power doctrine they had already rejected.[431] In addition to emphasising the concentration of state power in the hands of the President, Soepomo and another author of the Constitution, Muhammad Yamin, wanted to establish an institution that could embody people's sovereignty and perform particular functions such as appointing the President or amending the Constitution. This institution - which they named the People's Consultative Assembly (MPR), would consist of the People's Representative Council (DPR) - the legislature, and representatives from regions and interest groups.[432]
The influence of the integralist concept creates an impression that the 1945 Constitution possesses a distinct character from that of the constitutions of Western countries, especially when viewed from how this Constitution regulates the relations between the state institutions. The 1945 Constitution, for example, used the ‘division of power' system (pembagian kekuasaan) that positioned the MPR as the highest state institution that reflects people's sovereignty.[433] As such, the MPR has the power to appoint the President every five years, and the President is a mandatory (mandataris) of the MPR. This system bestows great power on the President.
It places him as the primary legislator and does not limit the times the president can seek re-election. The substance of this Constitution is also very short (consisting of only 1393 words and 37 provisions)[434] and often delegates the regulations of the organisational structure of the state to derivative legislation, which makes the power of the President as the primary legislator almost limitless, especially in the absence of a judicial review mechanism. Besides, the Constitution also has almost no human rights guarantees. If there is any implementation of such a right, it shall depend on the goodwill of the Government as the legislator.[435]The modern concept of the Constitution dictates that the formation of a constitution is to limit the power of the government. However, it is clear from the previous assessment that the drafters did not have such intentions when drafting the 1945 Constitution. This Constitution - as Pranoto Iskandar said - was created to legitimise the government ‘to freely “maneuver” without constitutional bounds in regards to “maintaining or creating public order or interests”’.[436]
IV.