Indonesian constitutional reform 1999-2002: an evaluation of constitution-making in transition

Abstract

In 1999, the MPR (Majelis Permusyawaratan Rakyat, the People's Consultative Assembly) enacted the First Amendment to the 1945 Constitution of Indonesia. Over each of the next three years, it passed a further amendment. Despite their important contribution to Indonesia's transition from Soeharto's authoritarian regime, no comprehensive study has been made of these four amendments, and the process by which they were produced. This thesis is an attempt to fill this gap, by critically evaluating the process and outcomes of these amendments, in the context of constitutional theory and the experience of other countries, in particular, South Africa and Thailand.

This thesis argues that the 1999-2002 constitutional amendments lacked what have widely been accepted as key features of a democratic constitution-making process: (i) there was no clear plan for determining the key elements of the process, such as when the amendment would occur, how it would be conducted, and what the outcomes would be; (ii) the MPR failed to win the people's trust in its capacity as a constitution-making body; and (iii) public participation was limited and badly organized.

Many of these problems with the reform process, however, related to fundamental issues within the Constitution itself. It contained two aspects seen as crucial to the identity and survival of the country by most nationalists, including the military: the rejection of an Islamic state and the imposition in its place of a nationalist state ideology, the Pancasila, contained in the preamble to the Constitution. Many nationalists feared that opening the Constitution to real change would jeopardize these positions, which they saw, and still see, as non-negotiable. The result was a slow, patchy and tentative process marked by constant negotiation and deal-making as most stakeholders sought a way to dismantle Soeharto's dictatorship without disturbing these twin nationalist principles.

Despite these problems, at the end of the process, the Constitution was more democratic in form. In particular, the amendments established a clearer separation of powers between the executive, legislature and judiciary; and more impressive human rights protections. This is because the euphoric transitional period provided a setting that encouraged open constitutional debates in the MPR and allowed public participation in these debates, despite the flaws in the MPR's system for public engagement.

The amended Constitution remains, however, far from perfect. This thesis recommends further amendments to, first, strengthen the system of checks and balances introduced between 1999 - 2002; and, second, to entrench the preamble and guarantee the difficult relationship between Islam and state in their current form.