Professor of political science of the University of Chicago Tom Ginsburg speaking at the Constitutional Law Forum 2022, Thursday (8/18/2021) at the Constitutional Court. Photo by Humas MK/Ifa.
Thursday, August 18, 2022 | 15:21 WIB
JAKARTA (MKRI)—The Constitutional Court of the Republic of Indonesia (MKRI) cannot guard constitutional democracy alone, as this responsibility falls on the all state institutions, said Tom Ginsburg, a professor of political science of the University of Chicago, at the Constitutional Law Forum 2022 (ConLaf 2022) on Thursday, August 18, 2022. The event, which celebrated the anniversary of the Constitutional Court, was collaboration between the Court, the Center for Constitutional Studies of Andalas University (PUSaKO Unand), and the International Institute for Democracy and Electoral Assistance (International IDEA). Unand constitutional law lecturer Feri Amsari hosted the event, which Unand rector Yuliandri attended.
Ginsburg made the statement when talking about democracy in South Africa. President Jacob Zuma was accused of corruption, he said. The South African parliament filed an impeachment case to the Constitutional Court of South Africa. However, Zuma’s impeachment case was not immediately dismissed. The Constitutional Court also asked for information from various parties, including the South African Anti-Corruption Commission. Finally, Zuma resigned from his position as president on February 14, 2018 due to a no-confidence motion by the parliament.
“The South African Constitutional Court asserted that it must hear the investigation results by the Anti-Corruption Commission. This shows that democracy could be saved not only because of the Constitutional Court, but also because the Constitutional Court cooperated with the Anti-Corruption Commission, the district courts, the tax agency, and its entire network. It couldn’t have done it alone. It must cooperate with other institutions to protect constitutional democracy,” Ginsburg said.
Beware of Populists
Ginsburg also emphasized awareness of populists (adherents of populism, which recognizes and upholds the rights, wisdom, and virtues of the little people). Populists, he said, will take extra steps, such as extending their term of office, in order to control the courts. He revealed charismatic populists in the United States.
“Sometimes populists are good. We need them to run an election, especially to collect votes. But leadership by populists can be dangerous. We have observed in a number of countries that populists hate institutions. A populist leader tends to think that they know what is best for the people, so they only speak for the people without regard to other parties. They are anti-pluralists and Donald Trump is one,” he said.
Ginsburg emphasized that populists do not like institutions, including the Constitutional Court, which, based on his research, would compel populists to do three things. First, they will replace the personnel in the institution. Then, they will change its authority.
“Finally, they will change the procedure. Changing the authority or procedural law of the courts would prevent cases related to them going to court or even making a case they want to go to court,” he explained.
Former constitutional justice of 2003-2008 and 2015-2020 I Dewa Gede Palguna, lecturer at the Jentera Indonesian Law School (STHI-Jentera) Bivitri Susanti, and Constitutional Justice Saldi Isra attended the event as keynote speakers. Justice Saldi said Tom Ginsburg’s expertise was a very broad. Many scholars have cited his views in Judicial Review in New Democracies: Constitutional Courts in Asian Cases. Justice Saldi hoped after this event, Ginsburg would write about the development of the constitution, the development of constitutional law, and the development of the Constitutional Court in Indonesia.
“In the book I mentioned earlier, for example, Ginsburg wrote about Mongolia, the dynamics of constitutional law in Indonesia. The development of the Constitution of Indonesia is much more dynamic than that of Mongolia, Singapore, and Malaysia. He paved the way for us, the Constitutional Court researchers and scholars, to write articles about Indonesia. The Indonesian Constitution issue is not only dominated by experts from Australia. We also want to hear from experts from the US, Europe, on the development of the Constitution and constitutional law in Indonesia, at least in the last 20 years,” he said.
Justice Saldi also hoped Ginsburg could talk about several countries that had moved from authoritarianism to democracy and how to maintain a much more democratic constitution for a longer period of time.
Amendment of the Constitution
Bivitri Susanti began her presentation with a question: should a constitution be evaluated? She came to wonder about it after reading Assessing Constitutional Performance, edited by Tom Ginsburg and Aziz Huq. Several countries had done it either in the chapters or separately. This question was often disregarded due to a tendency for the Constitution to be seen as a political statement following a significant political change. As such, there are various theories on the formation of the constitution. There is an assumption that a constitutional amendment follows an important political event.
“On the other hand, when there is a great desire from the political elite to change the constitution despite no major political events, we must look at it with suspicion: what is the interest behind this? This simple logic is also what I often use lately to highlight the discourse on constitutional amendment that has entered the formal political area at least since 2021 (although this discussion has been around since 2016). Moreover, there is the phenomenon autocratic legalism. Its final part that is important to highlight is the constitutional amendment aimed at removing restrictions on the president’s power,” she said.
Bivitri emphasized that any idea of constitutional amendment requires deliberation as the 1945 Constitution is the crossroad to three directions. First, a desire to amend the Constitution to make necessary improvements. The DPD (Regional Representatives Council), for example, has studied the possibility of the fifth amendment since 2008. The MPR (People’s Consultative Assembly) Speaker in 2021 also expressed the desire to include the state policy outlines (PPHN) in the 1945 Constitution, which was then changed to a ‘state administrative convention,’ as stated in her speech on August 16, 2022.
“This desire has not subsided. Second, there is a desire to return to the original text of the 1945 Constitution as stipulated on August 18, 1945. This desire is mainly supported by political groups who consider the constitutional amendment in 1999-2002 a result of encouragement by foreign countries, thus leading to liberal democracy, even though many literatures that explain ‘liberal democracy’ versus ‘illiberal democracy’ can [dispel] excessive fear of liberal democracy and calm this misguided nationalism,” Bivitri said.
The third, Bivitri said, is in the middle. They think now is not the right moment to make changes because there is no urgency. “Meanwhile, returning to the original text of the 1945 Constitution is also not an option because it contained a lot of leeway for the authorities and a high dependence on the political elite. This dependence can be understood in the context of independence in 1945, where Indonesia’s nascent democracy was still not being institutionalized. However, it is no longer relevant to the growing number of political actors and pluralism. I’m in this third group,” she said.
Inevitable Constitutional Amendment
Meanwhile, I Dewa Gede Palguna emphasized that the amendment to the 1945 Constitution is inevitable and requires a fundamental reason. “What is the reason? It is said the current amendment has betrayed the nation’s ideals. Which ideals have been betrayed? As far as I remember, the amendment was actually a derivative of the Preamble to the 1945 Constitution. We don’t need to make changes to the 1945 Constitution,” he said.
He added that the constitutional amendment was a continuation of the proclamation of independence. “Pay attention to the fourth paragraph. ‘And then to form a Government of the State of Indonesia that protects all Indonesian people and the entire land of Indonesia and to develop the welfare of the people, the life of the nation, and participate in the world orderliness based on freedom, eternal peace and social justice, National Freedom of Indonesia is prepared in a Constitution of the State of Indonesia.’ What does it refer to? ‘National Freedom of Indonesia is prepared’ refers to the August 17, 1945 proclamation in a Constitution with people sovereignty,” he said.
He added that the Constitution would come alive when it met philosopher justices who were able to interpret the spirit within it into living thoughts. “As long as the Constitutional Court can still be maintained, I still believe that Indonesia can still be saved,” he said.
Constitution Month
Next, Secretary General of the Constitutional Court M. Guntur Hamzah said that every August is the “constitution month” and there are three historic dates related to the Indonesian Constitution.
“First, on August 13, 2022, the Constitutional Court celebrated its 19th anniversary. In accordance with the constitutional mandate it received, the Court functions as the guardian of the Constitution. Secondly, last Wednesday, August 17 was the date of the proclamation of Indonesian independence. We just celebrated the 77th anniversary of the Republic of Indonesia. Thirdly, today, August 18, we are celebrating Constitution Day,” he said.
Guntur said the Constitution Day was determined based on Presidential Decree No. 18 of 2008 to commemorate the stipulation of the 1945 Constitution as the Constitution of the Unitary State of the Republic of Indonesia by the Preparatory Committee for Indonesian Independence (PPKI) on August 18, 1945. The Constitution has undergone ups and downs. After its ratification on August 18, 1945, it was replaced by the Republic of the United States of Indonesia (RIS) Constitution of 1949 and subsequently the Provisional Constitution of 1950.
Then, he added, efforts to draft a more representative constitution through the Constitutional Assembly through the 1955 General Elections also failed, so we returned to the 1945 Constitution after the issuance of the Presidential Decree of 1959. “The 1945 Constitution only found its political momentum for change after the Reform movement in 1998. It was ultimately amended through four stages from 1999 to 2022. Many fundamental changes were made to the 1945 Constitution, particularly on the authorities of state institutions, the improvement of the general election system, and the strengthening and guarantee of the citizens’ constitutional rights,” he explained.
Guntur added that the Conlaf was a collaboration between the Constitutional Court, IDEA International, and PUSaKo of Andalas University. “Thank you for [your] cooperation with the Constitutional Court, of course with the hope that academic activities of this kind continue in the future. The Court is highly committed to maintaining and developing an academic atmosphere by through various seminars, conferences, symposiums, research collaborations and internships, to publishing various scientific publications, both books and journals,” he explained.
"On behalf of the Constitutional Court, I’d like to thank all who have provided support for today’s event. Hopefully our discussion later can provide great benefits and add to our shared knowledge in improving the state administration system and increasing the citizens’ constitution awareness,” he said.
The Indonesian Constitution Day is commemorated the day after the Independence Day. According to the MPR’s website, it was established based on Presidential Decree No. 18 of 2008. It is a historic moment in the Indonesian constitutional system.
On August 18, 1945, the 1945 Constitution (UUD 1945) was ratified by the PPKI. Then, to carry out the mandate of Article IV of the Transitional Provisions of the Constitution, on August 29, 1945 the Central National Committee was formed as a representative body and forerunner to the formation of the MPR (People’s Consultative Assembly). The two historic events after the proclamation of Independence are always commemorated as Constitution Day and the anniversary of the MPR.
Writer : Utami Argawati/LA
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/12/2022 15:06 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, August 18, 2022 | 15:21 WIB 233