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Constitutional Justice Arief Hidayat speaking at a webinar organized by the Student Executive Body (BEM) of the Law Faculty of Diponegoro University, Saturday (7/11/2020). Photo by Humas MK/Hamdi.

JAKARTA, Public Relations of the Constitutional Court—The Student Executive Body (BEM) of the Law Faculty of Diponegoro University organized a webinar on “The Discourse about the Fifth Amendment to the 1945 Constitution” on Saturday noon, November 7, 2020.

“Is the fifth amendment to the 1945 Constitution urgent at the moment? Has the timing been reviewed from all aspects? the 1945 Constitution indeed has weaknesses, albeit not fundamental. By the Constitutional Court, those weaknesses can be overcome by the living Constitution,” explained Constitutional Justice Arief Hidayat, who spoke at the webinar.

He said that the Constitutional Court was given a mandate as the guardian of the Constitution and is functioned as the highest interpreter of the Constitution. “The Constitutional Court is even the guardian of the state ideology. So, I think [the amendment to the 1945 Constitution] is not urgent,” he said.

He advised law academia in Diponegoro University to read the work of law expert Prof. Satjipto Rahardjo on the 1945 Constitution from the general legal perspective. He added that even in liberal societies it is not easy to amend the constitution.

Justice Arief believed legal products haven’t been amended to appropriately comply with under the 1945 Constitution. He added that frequent amendment to the Constitution might lead to legal uncertainty and injustice due to lack of legal certainty. He urged the public to petition laws to the Constitutional Court so that the laws could keep with the times.

He said that amending the constitution requires the nation to have a shared vision and mission following the Preamble to the 1945 Constitution. “Studies found that the social cohesion of Indonesia is very weak, due to many factors, both external and internal. Especially amid this COVID-19 pandemic, solidarity is needed for the nation to amend the constitution. I fear a constitutional deadlock if the 1945 Constitution is amended. This is dangerous; the state will be critical,” he said expressing his concerns. He added that today both left- and right-wing transnational ideologies are trying to interfere with the nation. He didn’t see the practicality of amending the Constitution in the current situation.

He also talked about these issues from the perspective of progressive law. “Prof. Satjipto Rahardjo, in his works on progressive law, talked a lot about the implementation of the law,” he said. The professor said that amid undemocratic situations, the law enforcement must enforce the law while thinking out of the box. Judges as law enforcement must apply the law according to their conscience, their awareness of the law, and to the law that is developing in sociey.

Economic and Sociopolitical Forces 

Meanwhile, Constitutional Justice of 2003-2008 and 2015-2020 I Dewa Gede Palguna said that the constitution is a result of various political, economic, and social forces when it is formulated. “Do we need to re-amend the 1945 Constitution today? While can the Constitution and should it be amended? The Constitution is not and will never be complete. We have amended the 1945 Constitution in 1999-2002. Factually, the amendment occurred once in four stages in 1999, 2000, 2001, and 2002,” he explained.

Justice Palguna said a United States law expert Jed Rubenfeld said it would be scandalous that a centuries-old norm, formed in the conditions of the past claim supremacy over the current legal system.

“A written constitution will never be complete, leaving room for improvement. There are three ways to improve a constitution. First, through a formal amendment. Second, through interpretation by judges or a court. Third, through customs and convention. The convention in this case is in the constitutional context, not in the international law context,” he said.

As constitutional amendment is not the only way of improving the constitution, he said, the courts in the United States play an important role. “Moreover, the way of interpreting the Constitution in the United States is applied through concrete cases known as case or controversy. Therefore, we can see that concrete issues are directly linked to the Constitution. This then resolves the problem and changes to the Constitution can occur. This means that the text of the Constitution does not change, but the interpretation of the Constitution follows the interpretation of the court,” he stressed.

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/14/2020 10:03 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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