Title of book: The “Architecture of Constitutional Amendment: History, Law, Politics” (The Architecture of Constitutional Amendments: History, Law, Politics)
Author: Richard Albert
Publisher / Year: Bloomsbury Publishing, 2023
The Integrative Model of Constitutional Amendments in Indonesia as Constitutional Communication in Professor Richard Albert’s book: The “Architecture of Constitutional Amendment: History, Law, Politics” (The Architecture of Constitutional Amendments: History, Law, Politics, Richard Albert (Anthology Editor): https://www.bloomsbury.com/us/architecture-of-constitutional-amendments-9781509959082/)
This chapter is about how the amendment of the Republic of Indonesia is written. It is about procedural matter which may be an interesting discussion apart from the substances in the formal amendment. Other countries experience on how the format of the Constitution may be different.
The chapter begin with a short description on constitutional development in Indonesia. The first Indonesian Constitution 1945 was silent on how amendment to the Constitution should be written. Article 37 of the Constitution only stipulates the process of proposing the amendment, the quorum and the voting mechanism for constitutional amendments. It does not stipulate the required amendment model. Our chapter discusses how the amendment model is applied in Indonesia. We refer to the four models introduced by Professor Richard Albert: the appendative model; the integrative model; the invisible model; and the disaggregative model.
As according to the decision of the constitution-maker (the People’s Consultative Assembly (MPR)) during the first Amendment Session of 1999, model of amendment is addendum, by adding new sections. The addendum at this point is addressed as the changes or the appendix without deleting the original provisions. The rationale used in applying the model was taken from the proposal of one of the political parties (the Kesatuan Kebangsaan Indonesia). They pointed out that the Constitution is the fundamental basis of the state and of the national life, and also because the constitutional documentation is of the utmost importance to the nation. To this extent, the addendum for amendments should reflect the purpose of the philosophical values in the Preamble to the Constitution, and the Constitution should be clear, transparent and well documented. Other than that, it cannot be overlooked that the Constitution, in any event, was one of the matters that was passed down by the founding fathers. It is evident that the constitutional-makers intended to protect the historical foundation conveyed in the previous Constitution as a form of appreciation of the work of the Indonesian founding fathers. They want to preserve the historical aspects of the Constitution as part of delivering a message to future generations with the expectation that the historical journey of Indonesia will always be an inspiration for the future of Indonesia as a nation and as a state.
After the adoption of the Indonesia Amended Constitution:
The constitution-makers realized that the appendative model creates difficulties when identifying the amended provisions. They argued that such model would be difficult for people and readers who wish to know whether a provision within the UUD 1945 had already been amended before, hence causing them to resort to checking every amended text from the first to the fourth. To prevent difficulties and to assist public understanding of the UUD NRI 1945, a constitution which comprises both the articles of the UUD 1945 before the amendment and the four amendment texts was thus formulated. As the agreed amendment constitutes an addendum or the appendative model, this consolidated manuscript is not an official text, but instead is treated as a supplementary manuscript. The consolidated manuscript is not only to make easier of the people or readers, but also to clarify which provisions have been changed and are valid. At this context, we may refer to Professor Richard Albert that ‘the supplementary model makes the constitution a public record of the many mistakes of a country, a living history lesson both from past mistakes and times when the extraordinary mobilization of people has tried to correct their failures. Therefore, the supplementary document of amendment constitution may provide such benefit.
This integrative model provides people/ readers with a way to identify and find which part of the provision has been altered, as well as when it was officially amended.
Although the appendative model is the official model when it comes to amending the Indonesian Constitution, the integrative model is more most welcome popular in the society. At the law faculty, the teaching of constitutional law mostly uses constitutional manuscripts that follow the integrative model. Students are directly confronted with the new Constitution to learn how Indonesia’s current constitutional law is structured. Likewise, various civic education teaching materials from elementary schools to high schools contain constitutional material after amendments to the integrative model. This is also often found in the documents of the activities of the state institutions in the context of the dissemination and socialisation of the Constitution to various target groups.
The use of an integrative model may be analysed as follows:
First, the integrative model has the advantage of being a channel of communication to the public. The public at large can more quickly find, recognise and understand the amended provisions. This is also because that the Indonesian Constitution (after the amendment) is a new constitution due to the radical changes that left little of the original Constitution intact and the number of provisions, which increased by up to 300 per cent compared to the number in the earlier version.
This practical reason for communicating basic law is relevant to the sociological context. Indonesia has a population of hundreds of millions, huge territory and hundreds of local languages and different culture, efforts to bring the Constitution to life more quickly have become increasingly relevant.
Second, the integrative model should be a quick way of satisfying the ‘longing’ of some people or groups to return to the past regime under the original Constitution.
Third, the integrative model is important for strengthening the commitment of human rights protection in Indonesia. The 1945 Constitution, before the amendments, guaranteed human rights, but was limited in certain aspects, such as freedom of association, assembly, the right to education, the right to a decent life and legal equality. With the integrative model, the constitution as a document containing enumerated rights can be quickly known to the public.
In the context of the interpretation of the Constitution, particularly by the Constitutional Court in a judicial review, the integrative model does not present any problems in relation to the interpretive approach used by judges. Since many new provisions revoke and replace the old provisions with a new conceptual basis, this does not mean that it is relevant to trace the interpretation of a provision from the previous Constitution. The new provisions which about human rights or constitutional rights of individuals and citizens do not require interpretation by looking at the relationship with the previous provisions.
The integrative model, which was originally intended as a supplementary/complementary text and a model for legal communication, has become more and more popular, not only in society, but also in legal academia and political discussions. It has also acted as a reference for the law-makers in Indonesia. Consequently, the original text has been ignored and remains as a monument.
Lecturer at the Department of Constitutional Law, Faculty of Law, Universitas Airlangga
email : rosa@fh.unair.ac.id
