The Paradox of Anti-Colonialism
The rich and complex history of the events that led to the formation of the 1945 Constitution begs the question: does adapting values strictly from traditional cultures automatically make a constitution anti-colonial?
Curiously, even though Soepomo's integralist concept claimed to derive from Indonesian indigenous traditions, a closer inspection shows that this concept developed from the constitutional practices of the Netherland Indies regime during the Dutch colonisation of Indonesia.
The choice of the 1945 Constitution to give the President the primary legislative power serves as a perfect example. This idea referred back to the constitutional practices of the Netherlands Indie, which gave the Governor-General - the head of the executive - the central regulatory power in the colony even though the People's Council (Volksraad) was the legislative institution.[437] During the colonial period, this authority was given to the executive because the Dutch colonial Government wanted to prevent the People’s Council - which had some native representatives - from playing a substantial role in colonial politics. The Dutch regarded the Native populations as not educated enough ‘to partake in self-government’[438]In addition to the similarities of how these two constitutions give great legislative power to the executive, members of BPUPKI have also adopted the institutions contained in the Constitution of the Netherlands Indie.[439] For example, DPR was formulated by taking notes from Volksraad.4 They also formed the Supreme Advisory Council - an institution formed to provide advice to the President - by following the Council of Netherlands Indie, which was mandated to advise the Governor-General. Lastly, the Indonesian Supreme Court was modelled after the Hooggerechtshof van Nederlands Indie (the highest court in the Netherland Indies judicial system).[440] [441] The only institution considered not to have resulted from imitating the institutions that existed in the Dutch colonial period is the MPR,[442] often seen as an embodiment of Indonesia’s traditional decision-making process, which emphasises the principle of Deliberation and Consensus (musyawarah-mufakat).[443] However, even the idea of MPR was not void of Dutch colonialist influences: its position as the highest state institution reflecting people’s sovereignty, coupled with its power to appoint the head of the executive, actually resembled the position of the Dutch Crown in the Constitution of the Netherlands Indie.
The Crown positioned itself as the holder of sovereignty and had the power to appoint the Governor-General.[444]Besides the Dutch influence, the 1945 Constitution was also influenced by Indonesia’s other coloniser, the Japanese Empire.[445] This influence can be found in Soepomo’s speech when he first proposed using the integralist concept as the basis of the 1945 Constitution. At that time, in addition to claiming that the integralist concept resulted from Indonesia’s indigenous tradition, Soepomo also emphasised that the concept of the family state - which was the basis for the operation of the Japanese Imperial Government and its Meiji Constitution - had similarities to the culture of the Indonesian people.[446] This is evident in the following quote:[447]
We are now observing the Asian country, the Dai Nippon (the Japanese Imperial Government). The Dai Nippon state is based on the eternal and inner unity of the Noble Tennoo Heika (the Emperor), the nation, and the nation of Nippon in all. Tennoo is the centre of people's spiritual belief. The state is based on a family. The Tennoo family or ‘Koshitu is the main family. The basis of unity and family principles is very compatible with the culture of Indonesian society.
In reality, the framers of the 1945 Constitution not only recognised the similarities between the culture of the Indonesian people and Japanese cultures but also directly borrowed several provisions from the Meiji Constitution into the text of the 1945 Constitution. The table below reveals the similarities between several provisions in the 1945 Constitution and the Meiji Constitution, especially concerning the provisions governing the role of the President and the Emperor as the head of state in both documents.
Table 1 Similarities between the 1945 Constitution and the Meiji Constitution
| The 1945 Constitution | The Meiji Constitution |
| The President exercises the legislative power with the consent of the People's Representative Council (Art 5). | The Emperor exercises the legislative power with the consent of the Imperial Diet (Art V). |
| The President is the supreme commander of the Army, Navy and the Air Force (Art 10). | The Emperor is the supreme commander of the Army and Navy (Art XI). |
| The President, with the agreement of the People's Representative Council, declares war, makes peace and concludes treaties with other states (Art 11). | The Emperor declares war, makes peace, and concludes treaties (Art XIII). |
| The President declares a state of emergency. The conditions for such declaration and its effect shall be determined by law (Art 12). | The Emperor declares a state of emergency. The condition and effects of a state of siege shall be determined by law (Art XIV). |
| The President grants clemency, amnesty, abolitions, and rehabilitation (Art 14). | The Emperor order amnesty, pardon, commutation of punishments and rehabilitation (Art XVI). |
| The President confers ranks, orders and other marks of honour (Art 15). | The Emperor confers the title of nobility, rank, orders and other marks of honour (Art XV). |
Source: Table was developed from DD Agusman, Treaties Under Indonesian Law (Rosda, 2014) 214.
The facts above display a paradox about the 1945 Constitution. On the one hand, the founders claimed the document embodies anti-colonial ideas. On the other hand, it is heavily inspired by many norms taken from colonial practices and the constitution of the coloniser. Even the main principle of the integralist concept, requiring the concentration of power in the hands of the President as the head of the executive, resulted from the constitutional practice of the Dutch colonial period, for it concentrated the state power in the hands of the Governor-General as the highest government official in the Netherlands Indie.
Several reasons may have prompted the BPUPKI members to adopt many colonial norms in the 1945 Constitution. One possibility is that figures who graduated from the colonial educational system, such as Soepomo, Soekarno, Muhammad Yamin, and Mohammad Hatta, dominated during the Constitution’s drafting process.[448] If they had decided to adopt many constitutional practices from the Dutch colonial period, it is not surprising that the educational system created by the Dutch colonial Government for native people, such as law schools, logically aimed at making them work as judges or administrators, helping the colonial Government.[449] Meanwhile, their choice to ‘borrow’ many norms contained in the Meiji Constitution into the 1945 Constitution resulted from the involvement of the Japanese colonial administration in BPUPKI.
Most of the members were experienced in cooperating with the Japanese colonial administration. Additionally, eight Japanese members held a unique position in the BPUPKI. Despite not having voting rights in the organisation’s decision-making process, the eight members’ presence was enough to signal that the Japanese occupation government would only accept the Constitution if it did not contradict the ideology of the Japanese Empire.[450]Beyond these two reasons, another reason that led BPUPKI members to borrow many colonial practices is likely related to the objective of the 1945 Constitution itself, which was initially designed only to function as a temporary constitution for Indonesia. This temporary character was acknowledged by Soekarno in his speech on 18 August 1945, at the PPKI session:[451]
Gentlemen, all of you must have known that the Constitution we are making now is a provisional constitution. If I may use the terms: this is a Lightning Constitution. Later, when we already have a more peaceful state, we will certainly reassemble the People’s Consultative Assembly to make a more complete and perfect Constitution.
The 1945 Constitution, then, had a provisional character because it was created within a very short timeframe, which the Japanese colonial administration had set. Its framers did not have enough time to properly deliberate its substances, which may have forced them to borrow many provisions and bureaucratic designs from the constitution of their coloniser, given its intended temporary purpose. It is also worth noting that when the 1945 Constitution was formulated, there was a sharp division among its drafters regarding the position of Islam in the new Constitution. Several members of BPUPKI had a background as Islamic organisational leaders
(known as the Islamist group) - such as Ki Bagus Hadikusumo, Wachid Hasyim, KH Maskoer, and AK Muzakkir. They wanted to make Islam the state religion,[452] and several vital positions, such as the President, reserved only for Muslims.[453]
Meanwhile, other members such as Yamin, Soekarno, Maramis, and Muhammad Hatta (known as the nationalist group) wanted the constitution they created to not give a special position for one particular religion to ensure holistic unity among the people and prevent possible conflict.
Even though Islam is the majority religion of the Indonesian people, there are also many non-Muslim populations in the Eastern part of Indonesia, and during the constitution-making process some of these areas also threatened to break away from the project to create Indonesia if Islam became the state religion.[454] This sequence resulted in a compromise in the form of the Indonesian national ideology of Pancasila in the Preamble of the 1945 Constitution, where its first principle ‘Belief in One God' manifested pan-religious values, that still allowed religions (such as Islam) to influence public life without giving special status to one specific religion.[455]Amid such a threat, coupled with the short timeframe, the drafters had little choice other than adopting many norms and institutions derived from colonial practices rather than formulating an entirely new norm. The latter demanded more effort and could deepen the division between the nationalist and Islamic camps, which ultimately could threaten Indonesia’s effort to achieve independence. Interestingly, it was this complex situation that prompted its drafters to adopt colonial values that made the 1945 Constitution a sacred document in the eyes of many Indonesians.
For the Javanese people (the biggest ethnic group in Indonesia), there is a popular myth about the prophecy of Jayabaya, a 12th-century King from Kediri (a region in Eastern Java) who has been compared with Nostradamus in the West. In his prophecies that have been embraced by many Indonesians including Soekarno, the drafter of the 1945 Constitution,[456] there is a belief that Java -
Indonesia’s most populous island - would be freed from foreign occupation followed by the appearance of a ‘Ratu Adi! (Just King).60 According to Soekarno, the figure of the Just King in this prophecy does not refer to a specific person but to a new nation that resulted from the struggle towards colonialism.61 Since the 1945 Constitution is widely regarded as a symbol of the struggle against colonialism as it allowed Indonesia to achieve independence in the midst of a threat of division within Indonesian society, it is understandable that this Constitution easily got the status of a sacred document for many Indonesians even though its contents adopt many colonial values.
V.