The articles of the 1945 Constitution are considered to contain weaknesses in their formulation which open up opportunities for practices that deviate from the ideals and spirit of the Pancasila state.[7] The spirit of the Pancasila state which upholds people's sovereignty is buried with the idea of “Guided Democracy” which is advertised by the government based on mutual cooperation. The application of this idea has implications for the dissolution of the party system which results in the democratization of the state only having the outer skin.[8] If traced back to its roots, it will be found that the unclear direction of the legal politics of the 1945 Constitution and its very high level of flexibility open up too much room for interpretation imposed by the government.

Among the ambiguities in the legal politics of the 1945 Constitution is the presidential term which does not limit how many times they can be re-elected.[9] The absence of articles regulating the direction of state policy such as election regulations, protection of human rights, and relations between the center and regions is also a factor that indicates constitutional flexibility, if not to say a form of negligence. This practice then continued to the next government, namely the New Order (Orba), which also advertised that it would implement the 1945 Constitution purely.

The pure application of the constitution was in reality the Orba government's strategy to perpetuate its power just like the previous regime. For more than 30 years, the Orba government with its authority interpreted the flexible constitution with pollical will which was desired and deviated greatly from the spirit of the Pancasila state in accordance with the Preamble to the 1945 Constitution.[10] In order for the basis of legitimacy of government policy to remain firm, namely the 1945 Constitution, the government sought to make the 1945 Constitution very difficult to change.

The concrete form of the government's efforts is contained in Law Number 5 of 1985 concerning Referendums. The Referendum Law is based on the Decree (TAP) of the MPR Number IV/MPR/1983 which states that the 1945 Constitution will not be changed. However, in order to appear democratic, the Law opens a small door for efforts to amend the 1945 Constitution, namely by means of a referendum. In terms of norms alone, the implementation of the amendment is very difficult to do considering that collecting and processing the votes of the Indonesian people simultaneously in one day is very difficult, if not impossible.[11] Thus it can be said that the Orba government did not want the 1945 Constitution to be amended because it would undermine the basis of legitimacy of its power, but the Law was enacted so that this intention would still look democratic.

The Indonesian people who were fed up with the application of democracy in a formal-procedural manner and ignored the material-substantial demanded reform. One of the demands for reform was the enforcement of law and democracy in a substantial manner. Responding to this, the MPR then held an Annual Session which then gave birth to TAP MPR Number IV/MPR/1999 and Law Number 25 of 2000. This agenda was continued with amendments to the 1945 Constitution by means of substantial changes, apart from the Preamble, which was accompanied by an addendum system, namely the original text was maintained by attaching the results of the changes.

The amendment successfully changed the political direction of law, constitutional law, and the adopted system of government. Before the amendment, the 1945 Constitution adhered to executive heavy which was balanced by the sovereignty of the MPR. The application of this system reduced the principle of check and balances and this system was abolished with constitutional changes. The President no longer has superior authority and the people's sovereignty is no longer represented by the MPR. From this explanation, it is clear that the constitutional amendment agenda successfully changed fundamental aspects that, in the pre-reform era, received little or no attention from the state.

Koklusi

The constitution has a central position in the life of the state because the formation of government organs, guarantees of human rights, and the application of people's sovereignty are highly dependent on the constitution. A good constitution is one that accommodates the principles of constitutionalism that are not too flexible so that they can be tarnished by government interpretations and not too rigid so that they do not open the probability of adjusting to the dynamics of the times. Indonesia has experienced dark constitutional dynamics because the constitution was only used as a stamp for rulers in carrying out political interests without paying attention to the voice of the people. This dark history must be a note that is always underlined so that it is not repeated in the current reform era.

 

[1] Titon Slamet Kurnia, Constitutional Human Rights: The 1945 Constitution of the Republic of Indonesia and the Constitutional Court of the Republic of Indonesia (Yogyakarta: Pustaka Pelajar, 2014) p. 5

[2]            Ibid, p. 6

[3] Charles McIlwain, Constitutionalism: Ancient and Modern (Liberty Fund, 1947) p. 2

[4] Moh. Mahfud MD, Politik Hukum di Indonesia (Depok: Rajawali Pers, 2023) p. 27

[5] Dennis C. Muller, Constitutional Democracy (New York: Oxford University, 1996) p. 43

[6] Mahfud, Political Law…, op.cit. pp, 133 - 137

[7] Palguna, The Constitutional Court and the Dynamics of Legal Politics in Indonesia (Depok: Rajawali Pers, 2020) p. 147

[8] Mahfud, Political Law…, op.cit. pp, 147

[9] See Article 7 of the 1945 Constitution

[10] Palguna, loc. cit

[11] See Law Number 5 of 1985 concerning Referendum, especially Articles 3, 5, 7