Indonesia, Shari’a and the Constitution: An Overview

Nadirsyah Hosen. Shari’a and Constitutional Reform in Indonesia. Institute of Southeast Asian Studies, 2007.

I have argued at length in the previous chapter that shari’a is compatible with constitutionalism. However, the question remains: how can shari’a play a role in a constitution? Should it become the primary source by inserting its elements into a constitution? Should it be present only in spirit or as an inspiration? In this chapter, I will show how the Indonesian people have responded to this matter.

The aim of this chapter is to provide the institutional and historical context for the subsequent chapters analysing the influence of shari’a in the three main case studies: human rights, the rule of law, and religion vis-à-vis the state. In order to achieve this goal, it is necessary to discuss the evolution of the struggle for the inclusion of shari’a into the Indonesian Constitution from the Independence era in 1945 until the Reform era in 1999-2002. The political systems and practices during 1945-2002 will also be examined.

In August 1945, at the last moment, seven words from the Preamble to the Constitution (known as the Jakarta Charter) were removed and thus excluded from the Constitution. The seven words involved a requirement for Muslims to observe shari’a. During the last half-century the Indonesian Islamic-based parties have been attempting periodically to have the seven words reinstated, but without success. Under the Soeharto government (1966-1998), support for the Jakarta Charter was considered subversive and could be punished with years of imprisonment.

Prior to President Soeharto’s resignation on 21 May 1998, Indonesians had lived under authoritarian regimes for about forty years. The lack of democratic principles in the 1945 Constitution, such as the separation of powers, checks and balances and guarantees of citizens’ civil and political rights, was an important factor contributing to the rise of authoritarianism in Indonesia, after a brief experiment with parliamentary democracy in the 1950s. Constitutional reform is a critical aspect of Indonesia’s transition, for the original form of the 1945 Constitution was an inadequate foundation for democracy. Constitutional reform was also one of the basic demands of the student movement, which led to President Soeharto’s resignation in 1998, and Indonesian political elites have been struggling with the issue ever since.

Soeharto’s departure has also opened up the opportunity for several Muslim groups and political parties to propose the introduction of shari’a into the Constitution. Although there were Islamic political parties that supported the seven famous words in 1999, in this chapter, I will show the shifting position of the two largest Islamic organizations, in 1955 and in 1999, on the issue of shari’a and Constitution, which led to a polarization by nationalist and Muslim blocs (and modernist-traditionalist blocs) in 1955 to formal and substantive shari’a groups in 1999. While both Muhammadiyah and Nahdlatul Ulama (NU) (with around sixty million members) supported the inclusion of shari’a into the Constitution in 1955 parliamentary debates, both rejected such proposals in 1999-2002.

The chapter will be divided into three parts. The first part will evaluate the debate on the Jakarta Charter in 1945 and in 1955. The second part will examine the issue of shari’a vis-à-vis state ideology under the New Order government. The last part will focus on the process, the debate and the results of the Amendment to the 1945 Constitution following the fall of the Soeharto government. In particular, it will highlight the efforts of several Islamic political parties to propose the inclusion of shari’a into the Constitution.

The Jakarta Charter and the 1945 Constitution

From the beginning of the Japanese occupation, the Japanese military government had to cooperate with the available nationalist leaders against the Dutch and later assign them as intermediaries to rule the country, and to participate in the costly ongoing war against the Allies. During the last phase of the occupation the Japanese military leaders had to give in to the growing demands of the independence movement.

It was also natural that the Japanese occupying power should try to use religion, in this case Islam, for its own wartime ends. M. A. Azis, as quoted by B. J. Boland, explains:

The Japanese considered Islam as one of the most effective means to penetrate into the spiritual recesses of Indonesian life and to infuse the influence of their own ideas and ideals at the bottom of the society. For exactly the same reasons, Christianity was chosen in the Philippines as an important vehicle for ideological penetration.

On 29 April 1945, the Japanese established the BPUPK (the Investigating Committee for the Preparation of Independence) to discuss the foundation of the state and the constitution for the future of Indonesia. The BPUPK consisted of sixty-two members, with Dr Radjiman Wedyodiningrat and R. P. Soeroso as its president and vice-president respectively. With an eye towards facilitating a stable and peaceful transition, the Japanese tried to ensure that the BPUK was composed of men from the older and more experienced generation of leaders associated with the different pre-war nationalist and Islamic movements.

Ideologically, the BPUPK represented the two main groups of thought: the “secular” nationalists, and the Islamic nationalists. This explains why one of the issues during the first session of the BPUPK (19 May – 1 June 1945) was the basic foundation (or ideology) of the state: whether Indonesia would be an Islamic state or a state which would separate religious affairs from state affairs. In this regard, Professor Soepomo, one of members of BPUPK, remarked:

On the one hand (there) is the opinion of the religious experts [ahli agama], who are proposing to establish Indonesia as an Islamic state, and on the other hand (there) is another proposal, as has just been proposed by Mr Mohammad Hatta, that is, a national unitary state which will separate the state from religious affairs.

In order to find a solution, a sub-committee consisting of nine members was formed. The nine members were: Soekarno, Mohammad Hatta, A. A. Maramis, Abikoesno Tjokrosedjoso, Abdul Kahar Muzakkir, H. Agus Salim, Ahmad Soebardjo, Abdul Wahid Hasjim and Muhammad Yamin. After serious discussions, this sub-committee eventually succeeded in reaching a modus vivendi between the Islamic group and the secular group. On the first day of the second session, which was held on 10 July 1945, Soekarno reported on the agreement reached by the nine members. According to him, the five principles known as Pancasila, upon which a free Indonesia would be based, appeared in the preamble of the Constitution. This preamble was signed by the nine-member committee in Jakarta on 22 June 1945, and later came to be known as the Jakarta Charter (Piagam Jakarta). The five principles were: the belief in God with the obligation to implement Islamic shari’a for its adherents; a just and civilized humanity; the unity of Indonesia; a democracy guided by wisdom arising from consultation and representation; and social justice for the whole Indonesian people.

The agreement above reflected a compromise between the two opposing groups. The draft of the Constitution did not state that Indonesia was to be an Islamic state. It went further, stating that either a Muslim or a non-Muslim could be appointed as the Indonesian president. Based on the agreement above, the draft accommodated non-Muslim concerns, stating that Islamic law would be applied only to Muslims. Both Islamic and nationalist groups agreed to reach this “middle position”: the state recognized Muslims as the majority by granting them the right to implement their own law, and at the same time, the draft did not amount to the creation of a Negara Islam or Islamic state. In the words of M. B. Hooker, “While the Charter specifically refers to shari’a, it is vague as to its exact scope and competence, leaving much room for debate over its jurisdiction.” However, politically speaking, the vagueness could be seen as a win-win solution for both parties.

The agreement remained unchanged until 18 August 1945, one day after the proclamation of Indonesian independence, when the PPKI (the Preparatory Committee for Indonesian Independence) was formed. This committee, which consisted of twenty-seven members and was headed by Soekarno and Mohammad Hatta as Chairman and Vice-Chairman respectively, held a meeting on the same day it was formed. Within a short time (between 11.30 a.m. and 1.45 p.m.) the meeting brought about several important changes to the preamble, in which the formulation of Pancasila appeared, and to the body of the Constitution.

A change was made to the first principle by omitting the seven words: dengan kewajiban menjalankan Syariat Islam bagi pemeluknya (with the obligation to carry out Islamic shari’a for its adherents). Therefore, the first principle became: the Belief in One Supreme God. This change surprised the Islamic group. Questions arose as to the reason why the formulation of the Jakarta Charter, which had been achieved with difficulty, could be changed with such ease. It was said that a Japanese officer of the Kaigun (Japanese navy) came to Mohammad Hatta to tell him that a Christian representative from Eastern Indonesia objected to the clause of “shari’a”. He was warned that should it be kept unchanged, he and his people (non-Muslims from Eastern Indonesia) would separate from the Republic of Indonesia. Hatta was influenced by this message and promised to bring the message to the meeting.

Consequently, most of the Muslim leaders agreed to Hatta’s demands that references to the Jakarta Charter be removed from the preamble, that the related clause in the section on religion be excised. These changes were accepted by the PPKI, and Soekarno and Hatta were elected as President and Vice-President, respectively.

However, there was no doubt that several Muslim leaders felt betrayed. They had been involved in a long struggle for independence but when the fruits of their struggle, namely the freedom of Indonesia, had been achieved, their aspirations were neglected. The omission of the seven words meant that the 1945 Constitution did not specifically guarantee Muslims the right to implement their own law (shari’a). Isa Anshary, a prominent Muslim leader, considered this event to be tantamount to dishonest politics.

Others took the view that the omission of the seven words reflected the biggest sacrifice by Muslims for the unity of the nation, which was very crucial at that time. The sacrifice was so great that not even the word “Islam” and “Muslim” or “syari’at” were mentioned in the constitution. Later in 1978, Alamsjah Ratu Perwiranegara (Minister for Religious Affairs) interpreted that moment as “the greatest gift and sacrifice of the humble Indonesian Muslims as a majority population for the sake of Indonesian national unity and integrity”.

Soekarno reminded Muslim leaders that they could try to amend the text at a later date through constitutional procedures. To his credit Soekarno was able to convince even the most ardent opponents of the Jakarta Charter to lend their support, and as a result the draft constitution was unanimously accepted. Soekarno also stressed that the 1945 Constitution was only a “temporary constitution”, a “lightning constitution”, or a “revolutionary constitution”, which, in due course, could be perfected by elected representatives of the people. In Soekarno’s own words:

Gentlemen, all of you realise that the Constitution we decide today [18 August 1945] is a temporary constitution. If I may I would like to use the words “a lighting constitution”. At a later time when the State is in a peaceful and calm situation we would certainly bring together the members of the People’s Assembly to make a more complete and perfect constitution.

In this regard, several Muslim leaders were convinced that when the general elections came the issue could be discussed. As a majority, they believed that their group would achieve the majority vote.

There were some Muslim leaders, such as Ki Bagus Hadikusumo, who believed that, although the seven words were omitted, their goals and struggle were implicitly accepted. Hadikusomo asked Hatta what was meant by the phrase “Belief in One Supreme God”. Hatta answered that it was nothing other than the tawhid of Islamic monotheism.

However, Sidjabat, a Christian scholar, took the view that the first principle of Pancasila is a general and neutral concept of God that gives room for everyone who worships God without becoming indifferent in matters of religions. Thus, the Indonesian term Tuhan is capable of encompassing Christian, Islamic, Buddhist, and Hindu concepts of God. The term is used for “God” in place of the identical Arabic word, Allah, with its stronger Islamic connotations.

J. Boland shares Sidjabat’s view, above, pointing out that:

(the) first principle of Pantjasila is neither a syncretic compromise … nor is it a concept with only one interpretation, so that adherents of one religion could prescribe to others what their belief in God and their worship should be like, in order to be in accordance with the basis of the state. This first principle must be understood as a multi-interpretable formula and must be appreciated as providing a real possibility for people to agree while disagreeing.

The government of the new republic realized that certain concessions would have to be made. One of the most significant of these came in January 1946, with the establishment of an Indonesian Ministry of Religious Affairs. The establishment of this ministry provided proof that the government had implemented the first sila (pillar) of the Pancasila: Indonesia is neither a secular state, nor an Islamic state. In later years, the official structure of the Ministry also came to include separate sections addressing the needs of Indonesia’s various religious communities, although the Muslim section still dominates all others, and generally controls the Ministry itself. For instance, all Ministers of Religious Affairs, since its establishment in 1946, have been Muslims.

However, the missing words of the Piagam Jakarta have never disappeared from the debate on what the state of Indonesia is supposed to represent for Islam, the religion to which the vast majority of the population adhere. The seven words are so central, in fact, that some Muslim groups have persistently called for reinclusion of the Piagam Jakarta in the Constitution, ever since those words were dropped in 1945. The Muslim leaders were basically unable to accept that in a country where Muslims are the majority there can be anything other than Islam as the basis of unity. Ahmad Hassan, for instance, questioned why the 90 per cent Muslim majority must be overlooked because of the 10 per cent non-Muslim minority.

There were more radical attempts to make shari’a the basis of the Indonesian state. Kartosoewirjo declared the Islamic State of Indonesia (Negara Islam Indonesia). Kartosoewirjo’s movement, later known by the name of Darul Islam, developed into a full-blown rival to the Republic, which resisted the return of the Siliwangi division to West Java in 1949, and, after 1950, continued a guerrilla war against the Jakarta government. Kartosoewirjo’s Islamic State had its own Constitution, explicitly based on shari’a, and a judiciary where ulama delivered Islamic justice. The Darul Islam remained a military and political embarrassment to the Jakarta government until Kartosoewirjo’s capture, and the surrender of the other West Javanese leaders in 1962.

Konstituante

Indonesia has been governed by three constitutions since independence: the 1945 Constitution, the 1949 Constitution and the Provisional Constitution of 1950. The 1945 Constitution came into force on 18 August 1945. On 27 December 1949, the colonial government was back, and succeeded in breaking up the Republic of Indonesia (RI), whereupon the new Republic of the United States of Indonesia (Republik Indonesia Serikat, or RIS) came into being. A new constitution, known as the 1949 Constitution, replaced the 1945 Constitution.

The 1949 Constitution did not last long, however, because there were tremendous efforts made within the RIS during its first seven months to transform Indonesia from a union of states (a federation of states) into a unitary state. On 17 August 1950, the Provisional Constitution came into force with the reestablishment of the Republic of Indonesia. The new state did not bring back the 1945 Constitution.

The drive to make Islam the basis of the state was revived in the Constituent Assembly (Konstituante), which was the result of the first national general election in 1954. The debates led to a situation in which no faction had a majority of the vote. The Provisional Constitution of 1950 was enforced until mid-1959, when a decree by President Soekarno replaced it with the old 1945 Constitution, which was originally intended to be a temporary measure before the formal constitution, devised by the popularly elected assembly, was established. I will examine this political situation briefly.

The defeat of the Darul Islam movement transferred the struggle over the religio-political identity of Indonesia to the political sphere. Masyumi (Majelis Syura Muslimin Indonesia, or Consultative Council of Indonesian Muslims) became the Islamic party which played a prominent role in the politics of Parliamentary Democracy between 1950 and 1957. Masyumi was backed by the Muhammadiyah and the NU Islamic associations. Although some 85 per cent of Indonesians described themselves as Muslims, many among them, especially in Java, followed the Nationalist Party, Partai Nasional Indonesia (PNI). From 1950 to 1955 the PNI and Masyumi quarrelled over the role of Islam and of the Communists—who formed another party, Partai Komunis Indonesia (PKI).

In 1952, the NU withdrew from Masyumi and became a separate political party. This situation raised once again the old divide between traditionalist and modernist Muslims. The traditionalist/modernist schism divided Masyumi at its very core and produced a power struggle between Natsir’s religious-socialist faction and the base Nahdlatul Ulama constituency that ultimately produced a mass defection of the traditionalists from Masyumi three years before the general elections. In other words, NU’s withdrawal reduced Masyumi’s popular support considerably.

Mochtar Naim’s study ascribes NU’s decision to two factors—the structure of Masyumi and the dualistic character of Masyumi’s membership. Anwar Harjono mentions another factor, the position of the Minister for Religious Affairs. Whereas the NU proposed that the position be filled from among its ulama, the leaders of Masyumi preferred a person from the Muhammadiyah.

A Congress of Ulama and Islamic Propagators (Kongres Alim-Ulama dan Muballigh Islam), which was attended by no less than 217 ulama from all over Indonesia, was then held in Medan from 11 to 15 April 1953. The Congress eventually issued a fatwa (Islamic legal opinion) and passed a number of resolutions relating to the State ideology which Muslims should support. The fatwa stated:

It is incumbent upon every Indonesian citizen who embraces Islam, women as well as men, and who possesses the right to vote, to go to the polls and elect only the candidates who will fight for the realization of Islamic teaching and law in the State.

The question as to whether the fatwa was effective or not can be answered by looking at the results of the first national election in 1955. The loss of the traditionalists’ organizational networks among the kyai and pesantren of East and Central Java was a tremendous blow to Masyumi’s campaign efforts in 1955. The PNI with 22.3 per cent won the largest share of votes; the Masyumi came in second with 20.9 per cent, closely followed by the NU with 18.4 per cent. The results of the general election led to the formation of the Konstituante. It also confirmed the ideological polarization between the Islamic and non-Islamic parties, known as politik aliran, producing balance between them as well.

These Islamic and non-Islamic factions were divided into three groupings, each advocating a specific state philosophy. Firstly, there was the Pancasila bloc, which upheld the five principles of Pancasila to be the basis of the state. Secondly, there was the socio-economic bloc, which stood for a socialist economy and democracy as the basis of the state; and thirdly, there was the Islamic bloc, which advocated Islam as the basis of the state.

On 1 June 1959, based on the Islamic faction’s proposal, there was voting on whether or not the seven words from the Jakarta Charter were to be restored to the 1945 Constitution. The vote was as follows: 201 votes were cast for the amendment and 265 were cast against. This means that the Islamic bloc lacked the support of a two-thirds majority to restore the Jakarta Charter. Instead of writing a new constitution or making any amendments, the government then proposed to return to the 1945 Constitution. Lacking the support of all Islamic factions, who were disappointed with the rejection of their proposal on the previous day, on 2 June 1959, the return to the 1945 Constitution was rejected by 203 votes. This means that once again the required two-thirds majority (312 votes) could not be achieved.

Unfortunately, while the Konstituante went into recess, Soekarno, backed up by military leaders, dissolved the Konstituante through his Presidential Decree of 5 July 1959, arguing that it could not make any progress in its charter. The Decree abrogated the 1950 Constitution and enforced the 1945 Constitution. In an analysis of these events, Adnan Buyung Nasution suggests that Soekarno and the military leaders played a “game”, by providing the evidence that the Konstituante nearly finished its task, when Soekarno’s decision dissolved it.

The demise of the Konstituante led Indonesia back to the 1945 Constitution, which still remains in force. This means that the Muslims’ hope for later inclusion of their aspirations in a new constitution never materialized in the Soekarno era. Once again, the attempt to include shari’a in the Constitution had failed. Legally speaking, there was no legal basis for Soekarno to issue the Decree which dissolved the parliament (the Konstituante). However, politically speaking, the military and the Prime Minister, Djuanda, supported Soekarno’s decision.

It is particularly interesting to note in the preamble to the President’s Decree the affirmation that the Jakarta Charter “gives life” to, or “influences” (menjiwai) the 1945 Constitution and that it forms an inseparable unit with the Constitution. These considerations were designed to unite two conflicting streams of thought: that of the supporters of the Pancasila in the Jakarta Charter, and that of the supporters of the Pancasila in the preamble to the 1945 Constitution.

With regard to the relationship between the Jakarta Charter and the preamble to the Constitution, in which the two different formulations of the Pancasila are presented, B. J. Boland notes:

It is worth mentioning that on May 5th, the representative of the Catholic Party, B. Mang Reng Say, stressed that for his party the Djakarta Charter was nothing more than “one of the historical documents from Indonesian soil which have occurred in the course of the history of the Indonesian people moving toward the proclamation of their independence”, so that the Djakarta Charter “may not and cannot be a source of law” but may only be considered as a precursor, a draft, for the preamble of the constitution. The same point of view was also expressed by J.C.T Simorangkir, the speaker from the Parkindo (Partai Kristen Indonesia: the Indonesian Christian Party) in his speech at the Assembly on 17 May 1959.

What did Muslim scholars say on this issue? In his Demokrasi Pancasila Professor Hazairin of the Faculty of Law, University of Indonesia, argued for the infusion of an Islamic spirit into the state’s formulation of Pancasila. In presenting his case, he went so far as to argue that the Indonesian phrase “Ketuhanan Yang Maha Esa” was not the mere product of a committee compromise involving Indonesian Christians, Hindus, and Chinese, but rather a translation of the Qur’anic phrase: “The One and only God”. Hazairin also maintained that the 1945 Constitution as a whole could not be separated from the “spirit” which first animated it. Although he was not in favour of the creation of a formally Islamic state, for Hazairin, this spirit was most succinctly expressed in the preamble as originally formulated (the Jakarta Charter). Consequently, although the Charter was not one of the sources of Indonesian law, there should be no law nor government regulation which contradicts the spirit of the 1945 Constitution (i.e., the Jakarta Charter). The controversy on the meaning of the Charter, particularly among legal experts and religious scholars, remains.

Having read all the minutes of the meetings during Konstituante sessions from 10 November 1956 until 2 June 1959, Adnan Buyung Nasution observes that:

In the debate on the return to the 1945 Constitution, the Islamic political parties ultimately demanded only the re-instatement of the “seven wordings” of the Jakarta Charter that had been deleted from the 1945 Constitution on 18 August 1945. In doing so, they manifested an underestimation of the dangers inherent in the 1945 Constitution of development of dictatorial powers, which many of their members had previously criticized vigorously. Thus, in the debate on the Dasar Negara and again in the debate on the return to the 1945 Constitution, the coalition of Islamic parties in fact neglected the concept of constitutional government. The parties opposing the Islamic state did not do so from the point of constitutionalism, but because they objected to a counter-ideology.

In other words, the debate on the ideological foundation of the state was intended to determine the further provisions of the constitution. It was seen as the basic principle, inspiring all articles of the constitution and other organic laws. The great majority of the Konstituante commission clung to this as an item on the agenda requiring thorough discussion. The parties in the Konstituante still remained fixated on ideological concerns. It was unfortunate that the “deadlock” over the state ideologies prevented the Konstituante from creating a constitution which would be based upon constitutionalism. I will explain the characteristic of the 1945 Constitution vis-à-vis constitutionalism in the next section, when dealing with the Soeharto government.

With the defeat of the Muslim aspirations to create an Islamic state and to restore the Jakarta Charter, control of the state was taken over by President Soekarno and the Army. The return to the 1945 Constitution was easily interpreted by Soekarno as an excuse to introduce his “guided democracy” and concentrate most of the power in his hands. In 1960 the Soekarno regime banned the Masyumi Party. It was alleged that several of its leaders had joined the rebels and formed a counter government in 1958. Masyumi opposed Soekarno’s cabinet, because it contained Communists, and also opposed a National Council to represent workers, peasants, youth and regional interest groups.

Meanwhile, the NU maintained close ties with Soekarno. According to Lapidus, “While Masjumi was broken because of its ideological demands, Nahdlatul Ulama was able to retain political and tactical stability.” Even the NU accepted Nasakom, a Soekarno programme which attempted to synthesize nationalism, religion and communism, whereas other ulama condemned it by arguing that religion and communism could not be synthesized in any way. NU leaders believed that they had little choice but to accept Nasakom in order to avoid, firstly, the possible threat of retaliation from Soekarno, and the army, if NU did not support Soekarno’s programme, and, secondly, the potential threat of the Communist party (PKI).

Thus far, I have explained in this section the debate, political compromise, and the struggle for the state ideology during 1945-65. I have not only described political factions between nationalist group and Muslim groups, but have also indicated the internal friction within Muslim groups, such as Masyumi and the NU. In the next section, I will discuss the issues highlighted above in the period of the Soeharto government, particularly the relationship between the Soeharto government (1966-98), the 1945 Constitution and Islam vis-à-vis the state.

Shari’a and the New Order Government

In this section, the characteristics of the Soeharto government will be evaluated in relation to constitutionalism. It will also examine the fluctuating relationship between Muslim communities and the government. Although, at the end of his government, Soeharto took a closer relation with Muslim societies, it is safe to argue that throughout the period of the New Order government, constitutional debate on the Jakarta Charter was forbidden because of the deep-seated suspicions of the government concerning its disruptive potential.

Islam under Soeharto

The alleged attempted Communist coup of 1965 is a watershed in modern Indonesian history. It brought about the fall of Soekarno. The New Order government, as opposed to the Old Order of Soekarno, formally began when, on the evening of 27 March 1968, General Soeharto, aged 46, was formally sworn in as President of Indonesia by a decision of the Provisional People’s Consultative Assembly (MPRS). Soekarno’s regime left several pieces of “homework” for the New Order to contend with, such as the economic crisis, the remnant members of the Communist Party (PKI), which was banned by General Soeharto in 1966, and the disintegration of the Indonesian Armed Forces (ABRI), particularly the split between the Angkatan Darat (army) and the Angkatan Udara (air force). From the beginning, Soeharto opted to solve economic problems as a priority, rather than alter the political system. The Soeharto government continually adopted the line that it could not talk about democracy and discuss the political system, when the people did not have enough food. Put it differently, Soeharto’s New Order government focused mainly on economic development, in order to provide steadily improving standards of living for Indonesians.

Both the political and the legal systems had to support the development strategy of the nation. Therefore, the principles of the rule of law or Negara Hukum were accepted, only as long as they supported development, and Soeharto’s assessment of the national interest. Accordingly, the rule of law seems to have played a very minor role, if any, in the economic development of the nation.

H. Johns describes the New Order government as “a government with the avowed aim of restoring the nation’s confidence in itself and ensuring stability, even if authoritarian methods were needed”.R. William Liddle argues that the political structure of the New Order can be described as a steeply ascending pyramid, in which the heights are thoroughly dominated by a single office, the presidency. According to Liddle, the President commanded the military, which was primus inter pareswithin the bureaucracy, and which in turn held sway over society. In this sense, he was practically the only effective institution in the country.

In the early days of the New Order, Indonesian Muslims hoped that they would have a greater say in the running of the country than during Soekarno’s regime. Throughout 1968 and 1969, the Islamic parties sponsored “Jakarta Charter Commemoration Day” programmes to be held annually on 22 June. Their leaders were involved in discussions about the ideological direction of the state, but from the very beginning they affirmed that they supported Pancasila as the state philosophy. They did not want to establish an Islamic state. Their only real aim was that Islamic law should be implemented, and hence they requested that the Jakarta Charter be given official status. It might be said that Muslims supported the New Order government because of this hope. They went further by attempting to get the Jakarta Charter legalized as the Preamble to the 1945 Constitution, during the session of the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR) in March 1968, but they were to be disappointed.

The New Order government continued Soekarno’s policy of displaying respect for Islam as a private religious practice, but was determined that Islam would not become a powerful political force. Therefore, in the early period of the New Order, Muslims continued to play only a marginal political role. The New Order feared that since Muslims could not accept Pancasila as the ideology of the state at that time, they would continue to be inspired by their aspirations to turn Indonesia into an Islamic state. In other words, at the beginning of New Order era, as Donald K. Emmerson writes, the generals of the ABRI, who formed a powerful element in the New Order, many of them only superficial Muslims, saw in Islam’s cultural strength a distinct political threat.

There were at least two principal views on the Jakarta Charter expressed by Islamic groups during the Soeharto government. Firstly, the statement that the Jakarta Charter “inspires” the 1945 Constitution was accepted without attempting to further define or modify it; Secondly, the Charter should become the Preamble to the 1945 Constitution, and this would be seen as a symbolic victory for the recognition of shari’a by the state. This would require an amendment to the preamble.

The government accepted the first view, since it was based on the 1959 Presidential Decree. The government was worried by the last view. The military felt that Muslims did not want to accept Pancasila (the five principles of the Indonesian state ideology) and aspired to replace it with Islamic ideology. Any effort to link shari’a to the Constitution would be considered as subversive. Many Muslim activists were sent to jail because they rejected the asas tunggal (sole foundation), which was the government’s programme to have Pancasila adopted as the only ideological foundation of all social and religious organizations.

Eventually, however, the NU accepted Pancasila as an ideology of state. In 1985, K. H. Ahmad Siddiq, Ra’is ‘Am (the General Chairman of NU), published a book which stated that the NU accepted Pancasila as the final form of ideology for Indonesia. The Congress of the NU also explained that: “The Pancasila, as the basis of the Republic of Indonesia and the state’s philosophy, is not a religion; neither can it replace religion, nor be referred to as replacing religion.” Once again the NU showed the accommodating position to government policies which it had shown during the period of Soekarno’s Guided Democracy. However, this does not mean that the NU did not rely on religious arguments to support its position. Instead, the basic reason for the acceptance of Pancasila as the sole foundation of the NU was that Pancasila contained basic values which are not contradictory to Islam.

Although Muhammadiyah, the second largest Muslim organization, took the very careful step of adopting Pancasila as its foundation, it affirmed that Pancasila was not a problem for Muhammadiyah since its earlier leaders such as Ki Bagus Hadikusumo, Kahar Muzakkir, and Kasman Singodimedjo had helped to formulate and accepted Pancasila as the state’s basic foundation on 18 August 1945. This argument would mean that Pancasila was not in contradiction with Islam and could be adopted into the statutes of the organization. The effect of the recognition of Pancasila as the sole foundation (asas tunggal) by the NU and the Muhammadiyah was that the government and the military began to regard an Islamic threat more sanguinely. Since then, from the late 1980s to the end of the New Order, the Government and the Muslims had entered a “honeymoon” period.

This “positive” development continued when the government passed Law No. 7 of 1989, which pertains to Islamic courts in Indonesia. Before 1989, the decision of a Religious Court needed the fiat of a District Court. However, based on Law No. 7 of 1989, the position and the decisions of Religious Courts became equal to those of other courts. Religious Courts are under the supervision of the Ministry of Religious Affairs, whereas General Courts fall under the jurisdiction of the Ministry of Justice. Law No. 7 of 1989 defines “religious justice” as the justice system for people following Islam. Therefore, the Religious Courts are for Muslims only, since only they observe Islamic law. However, the authority of Religious Courts is limited to specific areas: marriage, divorce, inheritance, waqf (pious endowment), and hibah (gift).

Shortly afterwards, the Government sponsored the formation of ICMI (the Association of Indonesian Muslim Intellectuals). When Soeharto went to Mecca for the pilgrimage, Indonesian Muslims began to feel reassured. Soeharto subsequently changed his name: Haji Muhammad Soeharto. If we use Geertz’s classification, many Indonesian Muslims believed that Soeharto was no longer abangan, and began to recognize him as santri. He also lead the takbir akbar at the end of Ramadan in 1997.

Before the period of the “honeymoon”, any government involvement in Islamic affairs was interpreted negatively as government intervention. The effect was that many government officials adopted Islamic attributes, and the Government involved itself in some Islamic issues in a much more positive way. For example, Muslim women were allowed to wear the jilbab (veil) at school and at government offices; the Government supported the building of new mosques and prayer houses; many Ministers went to the mosque for the Friday service and to celebrate the Ramadan rituals, and so on.

Not only did relations between Islam and the New Order government improve during the “honeymoon” period, but also the relationship between Islam and the ABRI (Indonesian military) became much closer. According to Marcus Mietzner, in this period ABRI officers became more Islamic. There was a gradual shift in the military top brass, from a Christian and abangan-dominated leadership, to one with a santri background.

Robert W. Hefner believes, however, that in the case of modern Indonesia, Geertz’s categorization of santriabangan and priyayi is no longer relevant. He wrote in 1995 that there is only “Islamization” or “Santrinization” in Indonesia right now. According to him, Indonesia’s public culture today is far more Islamic than it was in the 1950s, and public piety is much greater. As he points out:

cultural Islam has changed Indonesia’s political culture, creating a Muslim middle class with greater initiative and influence than at any time in the New Order era. As Islamization brings more and more people to piety, it is inevitable and, in fact, important that Muslims and non-Muslims reconsider the role of religion in public life.

Whose Islam in Indonesia prevailed under the New Order government? The answer is fairly clear. The ulama, the military and the government were three elements which must be considered. The government, backed by the military, exercised an overarching role in Indonesia. This high level of influence was a result of three factors. Firstly, President Soeharto, a major general when he rose to power, used his personal knowledge of, and influence in, the military to make it the backbone of the New Order. Secondly, two-thirds of the Army’s personnel comprise the “territorial system”, units stationed at all levels of the state administrative system, from the capital down to the village level. This system was used to monitor and coerce the civilian bureaucracy. It remains largely intact to this day, although some of its more intrusive functions have been abandoned. Thirdly, the “dual function” (dwi fungsi) ideology justified not only a traditional defence role, but also a political and social role, for the Indonesian military.

If someone wanted to be the leader of an Islamic organization, that person had to seek the government’s permission. The military also strategically placed representatives in Islamic organizations. For example, the secretary (1995-2000) of the Council of Indonesian Ulama (MUI), Nazri Adlani, is a general of the ABRI. The government and the ABRI allowed any Islamic movement, as long as it did not attempt, nor aspire, to replace Pancasila with Islam as the ideology of the state. This suggests that the fear of an Islamic threat continued to exist. It should be noted that the Minister for Religious Affairs (1993-98), Tarmizi Taher, was an admiral of the ABRI with two stars, which suggests that the military was taking nothing for granted.

It is interesting to note Tarmizi Taher’s sanguine published view on Islam:

Islamic resurgence in Indonesia is not to be suspected, since Indonesian Muslims themselves have firmly accepted Pancasila as the state ideology and as the sole basis for political as well as social organizations. Meanwhile, Indonesian Muslims will never consider whether Pancasila is final, or a springboard for another destination, since Pancasila is able to facilitate their demands. They will never be afraid that Pancasila puts their religion to one side. Three and half years ago, we ratified Bill No. 8, 1985. We also already have a code on education and also on religious jurisprudence. All of these codes conform to the values and spirit of Islam.

Despite Tarmizi Taher stating that Islamic resurgence in Indonesia was not to be suspected, according to Karel Steenbrink, the government remained very wary of importing Middle Eastern frustration and fundamentalism into Indonesia. Students who journeyed to the Middle East on private funds were closely scrutinized after their return home. It was different with students who studied Islamic Studies at Western universities. During the 1980s and 1990s an average of 200 Western graduates in Islamic Studies were planned for each Indonesian Five Year Plan. The New Order government openly patronized students who wanted to undertake Islamic Studies at Western universities, not only for the benefit of those students, but also for its own benefit. It seems that the government believed that Muslim scholars from Western universities would not import the idea of fundamentalism upon their return. The government’s fear of an Islamic threat may have diminished, but it was taking nothing for granted.

The 1945 Constitution and Soeharto

In this section, I will explain how and why Soeharto took the policy not to change nor amend the 1945 Constitution. Not only would such policy stop the debate on Islam vis-à-vis the state, but would also support his authoritarian government. During the Soeharto era, Indonesia had a government but it was not a constitutional government.

Soeharto controlled the legal machinery and the destiny of a nation. Under his government, the Indonesian legal system was marred by flaws. Electoral bodies suffered from the absence of independent and transparent elections. In almost all affairs, effective checks and balances were lacking. Even the formally installed rules, regulations, and laws, were not effective, and weakly enforced in almost all sectors and at all levels of organizations. Informal institutions and the prevailing social norms also suffered from the same predicament. When a very high-profile political or business matter was at stake, the ultimate decision generally was understood to have come from the very top person. Often, that would be Soeharto himself, or a member of his inner circle. In this sense, he was practically the only effective institution in the country.

With regard to the 1945 Constitution vis-a-vis constitutionalism, President Soeharto had “unlimited” powers. Two factors contributed to the powers of the presidency in Indonesia during the New Order government. Firstly, the 1945 Constitution provided for a very strong chief executive. Nine of thirteen articles in the Constitution, dealing with the presidency, provide powers to the President (key executive, legislative, judicial, foreign policy and security powers). Limitations and checks and balances on the presidency are not the main concerns of the 1945 Constitution. It is understood that President Soeharto did not want to change nor make amendments to the 1945 Constitution during his presidency partly for this reason.

In order to maintain its power, the New Order government prevented any political and constitutional change by the de facto abolition of any procedural possibility to alter the 1945 Constitution. This in effect prevented any attempt to restore the Jakarta Charter as the preamble, or to insert the seven words into Article 29 of the 1945 Constitution. The People’s Consultative Assembly (MPR) issued its Decree No. 1/MPR/1983, determining that: (i) the MPR should permanently maintain the 1945 Constitution; (ii) before the MPR uses Article 37 of the 1945 Constitution on the procedure for constitutional change, a referendum must be held to gain the people’s consent. This Decree contradicted Article 37 of the 1945 Constitution, which does not mention any referendum:

  1. In order to alter the Constitution, at least two-thirds of the total members of the Majelis Permusyawaratan Rakyat must be in attendance.
  2. A decision shall be taken with the agreement of at least two-thirds of the total number of members who are in attendance.

Secondly, in accordance with Indonesia’s 1945 Constitution, the President and Vice-President are elected by the country’s highest legislative body, the Peoples’ Consultative Assembly (MPR). This 1,000-member body consisted of the 500 members of parliament and another 500 representatives of different functional groups and of Indonesia’s twenty-seven provinces. The appointment of these 500 delegates, together with that of the hundred appointed members of the military faction of Parliament, was in the hands of the President. In practice, Soeharto controlled the appointment of 60 per cent of the delegates in the assembly which elected him. As a result, every fifth year until 1998, the MPR unanimously re-elected Soeharto to the presidency.

Soeharto allowed only three political parties/interest groups: Partai Persatuan Pembangunan (PPP), Golongan Karya (Golkar), and Partai Demokrasi Indonesia (PDI). In the Soeharto era, Golkar (Soeharto’s party) won more than 60 per cent of the vote in each of six heavily stage-managed elections between 1971 and 1997. For instance, the results of the May 1997 election were that Golkar gained votes and seats, moving from 68 per cent of the votes in 1992 to 74.5 per cent in 1997, and winning 325 out of the 425 seats being contested (the number of seats at stake rose from 400 in 1992 to 425 in 1997, owing to the reduction in the number of seats allocated to the Armed Forces, from 100 to 75, out of the total of 500 seats in the People’s Representative Assembly (Dewan Perwakilan Rakyat, or DPR).

The reservation of seats for the military in the legislative branch is inherently undemocratic for the reason, among others, that military representatives are not elected. Moreover, the military’s participation in Parliament creates serious conceptual difficulties and potential conflicts of interest. By participating in politics in this way, the military seems to become, in effect, another faction or interest group, rather than an institution which acts on behalf of the entire country, given the role expected of the military, so that it would seem untenable for the military to act in Parliament as an opposition.

Why did Golkar win? The Soeharto government did not allow the establishment of an independent supervisory committee for the election. Consequently, it was difficult to have genuine elections during the Soeharto era. The vote-counting process was completely dominated by the government apparatus, while the other two political parties were completely excluded. The Indonesian military (ABRI) and the government bureaucracy were not neutral. Directly or not, they supported Golkar. This could be seen in the existence of the so-called three channels (tiga jalur): A (ABRI), B (the bureaucracy), G (Golkar). The channels had the responsibility to secure the New Order’s political and economic policy.

The legal system simply did not work in the sense that Soeharto controlled its operation. The Government drafted bills and “influenced” the Parliament to accept them. All the Parliament’s substantive discussions took place outside the official meetings. Only when substantive agreement had already been attained would the members of parliament meet in public. This was a concept of “consultation for consent” (musyawarah untuk mufakat) introduced by the Soeharto government. Voting, as a mechanism to reach a decision, was avoided. Members of parliament who dared to speak out would be recalled by their parties. The Government then issued Government Regulations, at its discretion, to interpret laws. With regard to the dependence and the subordinated position of both the judiciary and the legislature, no one could challenge such interpretations or discretions.

From the above discussion, it can safely be stated that during the Soeharto government, the 1945 Constitution, which gave wide scope to official discretion, has been used for justifying all sorts of arbitrary government acts. It is for this reason that constitutional reform became one of the demands for reform by the student movement in 1998. The struggle and demands for reform will be examined below.

Struggle for Reform

It is beyond the scope of this chapter to explain all the factors which led to the Amendment to the 1945 Constitution. Therefore, I will examine only several factors and conditions that relate to the overall argument of this book. On the day following Soeharto’s re-election for another five-year term by the MPR on 10 March 1998, student protests began to spill out of the campuses. They demanded the total eradication of corruption, collusion and nepotism, and since Soeharto was seen as part of the problem, students also asked him to step down. The first serious clashes between university students and security forces took place in the Central Javanese town of Solo and in the East Javanese capital, Surabaya. On 14 March 1998, Soeharto announced his new cabinet, which included his daughter, Mbak Tutut, and his close friend, Bob Hasan. The new cabinet was immediately condemned by students and other critics as a “crony cabinet”.

In April 1998, clashes between security forces and students occurred in many big cities, such as Medan, Jambi, Mataram, Bandung, Yogyakarta, and in East Kalimantan. On 1 May, Interior Minister Hartono informed the press that Soeharto had stated that political reform must wait until after 2003, the year of the next scheduled MPR session.

While Soeharto was in Cairo for a summit conference on 12 May 1998, four university students were shot dead after a peaceful protest outside Jakarta’s Trisakti University. On the following day, the four Trisakti students were buried. Professor Amien Rais of Gadjah Mada University and Chair of Muhammadiyah (the second largest Muslim organization) told the crowd that the military had to choose between defending “a certain family” or the people of Indonesia. Meanwhile, rioting broke out in Jakarta, centred on the districts surrounding the Trisakti campus.

The following day, 14 May 1998, was the worst day of rioting in Jakarta. Jakarta looked like a death city. By the end of the day, in Jakarta and neighbouring cities, two hospitals, two sub-district offices, thirteen markets, forty shopping malls, eleven police stations, more than sixty bank offices, 383 private offices, twenty-four restaurants, twelve hotels, more than one thousand private homes and thousands of shops had gone up in flames, or had been seriously damaged. The police and military could not do much to control the situation. In fact, soldiers were very visibly present in the streets. Some symbols of the Indonesian development under Soeharto were destroyed. On the next day, rioting began to abate in Jakarta and elsewhere. It was reported that many Chinese women were raped during the riots.

However, when Soeharto returned from Cairo, he stated that he was not willing to resign. Instead, he was willing to reshuffle the cabinet. Responding to that statement, Amien Rais announced that Soeharto should step down within the week. The ruling élite began to crumble as Mien Sugandhi, head of the Golkar organization MKGR, called on the President to resign.

Although the word “reform” dominated the demonstrations, in free speech rostrums there were at least seven popular demands. They were:

  1. reform of the 1945 Constitution;
  2. repeal of five notorious laws on politics;
  3. abolition of the army’s involvement in politics;
  4. reduction of the prices of basic foodstuff;
  5. the elimination of corruption, collusion and nepotism;
  6. the resignation of Soeharto; and
  7. the establishment of a court to try Soeharto, his followers and other perpetrators of human rights abuses.

However, the main target was Soeharto. Without his resignation, the other six demands could not possibly be addressed. In other words, substantive reform could not be pursued within the system while Soeharto remained in charge. This explains why Soeharto’s offers to initiate reform were rejected. Soeharto responded to the demands by calling for calm and stressing that he would not seek re-election and by announcing that a general election, based on a new law, was to be held as soon as possible. Students no longer put any trust in him.

In the words of Amien Rais:

My thesis is simple: it is not possible for us to hope for a change in the style of leadership, state management, central or regional government administration, if there is no replacement of the president. So, it’s not possible to change the system without changing the president. As I have repeatedly said, it’s precisely the “person” (sang figur) who influences the system. And the “person” perpetuates the system to maintain the status quo for all time. It is an illusion if people hope that, with his advanced age, Soeharto can carry out fundamental or drastic reform.

Pressure was increased by unremitting student demonstrations, and the constant stream of delegations visiting Parliament. Critics finally made Harmoko and the other chairpersons of Parliament realize that the institutions they headed represented the people and that the time for foot-dragging had passed; they had to do something immediately. On 19 May, Harmoko, Chair of the Parliament, reiterated to a rowdy press conference that the Parliament wanted the President to resign as soon as possible. At the same time, the number of students demonstrating at the DPR increased, and large demonstrations continued elsewhere around the country. People asked the MPR to hold a special session to impeach the President.

General Wiranto responded to Harmoko’s statement above: “Today’s statement by parliamentary leaders was a statement of individual opinions, even though it was presented by a group.” According to Wiranto, for Harmoko’s statement to have a sound legal basis, all members of parliament would first need to be consulted through a regular session of Parliament. Legally speaking, Wiranto was right. There needed to be a lengthy process before the Parliament, as an institution, could ask the President to step down. Because Parliament was not in session, a formal resolution ratified by the full membership could not be produced. This was a legal procedural constraint. However, politically speaking, Wiranto’s statement could be read as indicating that the military remained loyal to Soeharto. This was a clear message from the Commander of the Armed Forces.

On the evening of 20 May 1998, fourteen ministers in the economic, financial and industry fields decided to send their resignation letters to Soeharto. Prior to this, Harmoko announced that the President had to resign by 23 May, or the DPR would initiate a Special Session of the MPR, to unseat him. Soeharto then issued a Presidential Decree which empowered General Wiranto to take emergency measures. However, Wiranto hesitated to follow the order for two main reasons. Firstly, Soeharto whispered to him, “It is up to you whether you follow the decree or not.” Secondly, he was aware that by following the order, he would be declaring martial law, and clashes between the security forces and the people would take place. The situation would become worse. Therefore, he decided not to follow the order.

Three former Vice-Presidents (Umar Wirahadikusumah, Soedharmono and Try Sutrisno) visited Soeharto and they suggested that Soeharto resign for the sake of the nation. Afterwards, Vice-President Habibie himself met the President. Habibie advised Soeharto to retire, but to do so on his own terms, rather than being pushed to do so by others. Soeharto also invited forty-five persons to cooperate with him in the new Cabinet, but forty-two refused. Nor could he find politicians prepared to join his new cabinet. It was the final blow. Unable to compose a cabinet, Soeharto surrendered.

Finally, on 21 May 1998, Soeharto read his resignation speech and, based on the 1945 Constitution, Vice-President, B. J. Habibie was sworn in as his replacement. General Wiranto, of the Indonesian military, announced that the military would protect the former President and his family. This announcement indicated that while Soeharto might have lost power, he retained loyal supporters, particularly in the military and bureaucracy.

Shari’a and Constitution in the Reform Era

This section focuses on three issues: the emergence of Islamic political parties in the post-Soeharto era; the process, results and criticisms of constitutional reform; and an overall evaluation of the debate on shari’a and the Amendment to the 1945 Constitution.

Islamic Political Parties

The resignation of Soeharto has opened a new era for the Indonesian people. As part of its institutional and instrumental reforms, Habibie’s government produced more than fifty statutes. For instance, it repealed Law No. 1 of 1985 on General Elections; Law No. 2 of 1985 on the Structure and Status of the MPR and the DPR, and Law No. 3 of 1985 on Political Parties and Golkar. Three election laws were passed on 1 February 1999 by the Parliament. In general, the laws are significant advances and show the commitment of the administration and major opposition figures in creating a new system, in which free and fair elections are possible. All major parties and political leaders appeared willing to participate in the elections under these new ground rules. The three laws cover the requirements for forming political parties, the election system, and the composition of the national and local representative bodies.

Unlike Soeharto, Habibie allowed a multi-party system. The most significant parties were the PDI-P (Indonesian Democracy Party-Struggle) following former President Soekarno’s nationalist precepts and led by his daughter Megawati Soekarnoputri; the PKB (National Awakening Party), in which long-standing religious leader Abdurrahman Wahid was the most prominent figure, primarily representing the traditionalist Islam of Central and East Java; and the PAN (National Mandate Party), led by prominent reform campaigner Amien Rais, which attempted to appeal to both the modernist Islamic tradition and an urban, liberal vote.

Apart from the PPP (Partai Persatuan Pembangunan), which was established in the Soeharto era, other Islamic political parties were formed during the reform era: Partai Umat Islam (PUI, or Islamic People’s Party), Partai Kebangkitan Umat (PKU, or Islamic People’s Awakening Party), Partai Syarikat Islam Indonesia 1905 (PSII 1905, or 1905 Indonesia Muslim Association Party), Partai Politik Islam Indonesia Masyumi (PPIIM, or Masyumi Indonesian Muslim Political Party), Partai Bulan Bintang (PBB, or Crescent and Star Party), Partai Keadilan (PK, or Justice Party) and Partai Nahdlatul Umat (PNU, or Nahdlatul Umat Party). The reform era is an opportunity for Islamic groups to express their political aspirations, including the aspiration for the inclusion of shari’a into the Constitution.

The PPP, PBB and PK have all declared Islam as their ideology, although Islamists are more prominent in the PBB and PK than in the PPP. PPP leaders now claim that they are committed to making Indonesia an Islamic state, although the party did not campaign on that platform in 1999. Many observers believe that PPP’s Islamism is half-hearted, a political calculation intended to distinguish it from the other big five parties, all of which supported Pancasila as the state doctrine, in the 2004 election campaign.

The PBB did campaign for an Islamic state in 1999. Many of its leaders have family connections with Masyumi leaders of the 1950s (the crescent and star was Masyumi’s ballot symbol). Given its tiny vote, compared to Masyumi’s 21 per cent in 1955, the PBB is considered by most observers to be a party of the past. Yusril Ihza Mahendra, Minister for Law in Megawati’s Cabinet, serves as General Chairman of PBB.

Finally, despite its even smaller size, the PK is the most sophisticated and promising of the Islamist parties. A few of its top leaders were trained in religious studies in the Middle East, but many more have advanced Western-style education, often in foreign universities. Though their basic approach to Islam is modernist, in that they read the Qur’an and Hadith directly without the mediation of medieval scholarship, many PK activists do not have roots in any of the pre-existing modernist organizations, such as Muhammadiyah or the DDII (Indonesian Islamic Proselytizing Council), the main refuge for Islamists in the Soeharto years. PK thus represents something new in Indonesian politics. Most of the party’s voters are urban and are particularly concentrated in the neighborhoods around major universities, where many leaders are lecturers and researchers.

PK campaigners in 1999 stressed not the Islamic state but opposition to official corruption, their professional qualifications to govern, and an egalitarian economic policy, balancing phased industrial development with self-sustaining agricultural growth. Their platform also proposed a sharper separation of executive, legislative, and judicial powers, with a Supreme Court no longer appointed by the president.

On 7 June 1999, forty-eight parties competed in the election, with twenty-one winning at least one of the 462 contested seats in Parliament. The PDI-P party won 34 per cent of the vote and 153 seats in Parliament, whilst the Golkar party, which had run the country for thirty years, won only 22 per cent of the seats. The result was that, in October 1999, for the first time, Indonesian citizens successfully changed their government through an open, transparent democratic process. The People’s Consultative Assembly elected Abdurrahman Wahid (popularly known as Gus Dur) as President ahead of Megawati, although her party won the election (but not the majority of seats) since several Muslim leaders from different political parties (the group known as the Central Axis) united to prevent Megawati from gaining the presidency during the People’s Consultative Assembly meeting of October 1999. This suggests that the existence of Islamic political parties is too important to ignore, particularly when they are united or share similar views. In order to prevent social chaos in several provinces, arising from Megawati’s defeat, Gus Dur’s party nominated Megawati as Vice-President.

Unfortunately, Gus Dur neglected to sustain the support of the coalition force which had made it possible for him to become the President in the first place. He lost the support of the PPP, the third-largest party, when he induced Hamzah Haz, Chairperson of that party, to resign from the cabinet on 26 November 1999, after insinuating that Haz was involved in graft. Gus Dur also fired General Wiranto, the former chief of the Indonesian military, from the Cabinet. As if this was not enough, he then angered the two largest parties, PDI-P and Golkar, by dismissing Laksamana Sukardi (PDI-P member) and Jusuf Kalla (from Golkar) after accusing the two ministers of graft. At that time, Gus Dur’s presidency was in some trouble. He had lost supporters from the Muslim political parties, the Indonesian military, Golkar, and the PDI-P. It was only a matter of time for the Parliament to unseat him.

President Wahid was then alleged to have misappropriated a US$2 million gift from the Sultan of Brunei. The money was given by Sultan Hasanal Bolkiah for humanitarian aid in Aceh, and the gift was handled informally, with no record kept of its disbursement. It was claimed that the money was a “personal gift” from the Sultan to the President for the people of Aceh. The Attorney-General’s office found, in early June 2001, that legally there was no evidence to support claims that the President had been involved in any wrongdoing in relation to this matter. However, politically, this case became one of the reasons why the MPR moved to impeach the President, on 23 July 2001, leading to the replacement of President Wahid by his Vice-President, Megawati Soekarnoputri.

Constitutional Reform

Indonesian reform is expected to meet popular demands in the post-Soeharto era, such as a less powerful presidency, a multi-party system, a more powerful Parliament, and a reduction in, or eradication of, parliamentary seats for the military in the DPR. There are differing opinions regarding the necessary first steps in the reform of Indonesian law. Some scholars suggest a reform of the Mahkamah Agung (Supreme Court) by replacing the Chief Justice and other judges. Some take the view that the 1945 Constitution should be reformed, either by amendment, or by introducing a new constitution. There is another school of thought maintaining that law reform should be initiated by repealing old laws, which are the product of Dutch colonial times. Others believe that law enforcement should be the priority, instead of producing new laws.

Despite such views, it could be argued that reform of the 1945 Constitution has been one of the most important aspects of the transition to democracy in Indonesia, which began in 1998. Despite the weaknesses in the 1945 Constitution as the basis for democracy, it was explicitly or implicitly accepted by most major political forces as the framework for the transition in Indonesia, beginning in 1998. Subsequently, however, many of the most important political parties came to believe that the Constitution must be amended to address weaknesses in the country’s political structure.

The first set of changes was passed during the October 1999 General Session of the MPR, so that the new democratically elected president would be bound by them. These changes affected nine of the Constitution’s thirty-seven articles. The MPR decided to follow the American practice of constitutional amendment, in which the full original text is accompanied by the changes to these nine articles, which, as a whole, are referred to as the first amendment. The first amendment focuses on strengthening the position of the legislative and judicial branches vis-à-vis the executive branch. It also reaffirms the decree passed at the MPR Special Session in November 1998, which limited the president and vice-president to two five-year terms. Nonetheless, the first amendment merely scratched the surface of the serious problems within the 1945 Constitution.

In October 1999, August 2000, November 2001, and August 2002, the MPR passed the first, second, third and fourth amendments, respectively. The MPR is the sole body empowered by the 1945 Constitution to amend it. The MPR consists of 695 members, 500 of whom are national legislators (DPR members); the remainder consisting of 130 regional delegates elected by provincial assemblies, and 65 representatives of social organizations, chosen by the Electoral Commission.

Constitutional reform was an important part of the democratic transition in Indonesia for at least two reasons. First, the amendments have altered the basis of the political game. The four amendments affect the fundamental rules. Among other changes, the amendments have:

  • Established the presidential democratic principles of separation of powers, and checks and balances;
  • Substantially revised the constitutional framework for executive-legislative relations;
  • Reinforced the principle of civilian supremacy over the military;
  • Devolved potentially significant powers to sub-national authorities;
  • Established a second chamber of the national legislature to represent regional interests;
  • Inserted sweeping guarantees of citizens’ civil and political rights into the Constitution; and
  • Established a Constitutional Court.

These amendments have fundamentally altered the rules under which the state relates to its citizens, the three branches of government deal with one another, civilians and the military interact, and the national, provincial, district and village authorities relate to each other. Such fundamental changes, even prior to their full implementation, have already begun to alter the behaviour of political actors.

Second, there were also efforts to include among the amendments the legal basis for the implementation of shari’a. From the perspectives of democracy, this process is important, since it accommodated different and conflicting views in a constitutional way. As has been mentioned earlier, some Muslim leaders felt betrayed when the Jakarta Charter, which had been formulated through an agreement between the nine members of the Preparatory Committee for Indonesian Independence, was changed on 18 August 1945. Owing to the military’s pressure and the issuance of Soekarno’s Decree, which abolished the Konstituante in 1959, Islamic political parties had to face the political reality that the inclusion of their aspirations to restore the Jakarta Charter had not materialized. Again, due to the military’s pressure, the struggle for the Muslim parties in the 1968 MPR session to discuss the legal status of the Jakarta Charter was unsuccessful. In the Soeharto era, no political parties dared to talk about the Jakarta Charter.

In the reform era, when freedom of opinion is guaranteed, the proposal and the discussion on shari’a and the state in the Parliament is no longer restricted. Proposals to amend the Constitution, including inserting the famous seven words, would not be considered tantamount to treason. The agreement or the rejection of any proposal would be based on, and guaranteed by, the constitutional procedure; not based on mass demonstrations, military force nor presidential decree.

The Political and Legal Processes of Constitutional Reform

The MPR authorized a subcommittee of its members, known as the Working Body (Badan Pekerja), to draft and debate further constitutional reforms and report to its next plenary session, which took place in August 2000. This eighty-six-member body, in turn, established a forty-four-member subcommittee, Ad Hoc Committee I (Panitia Ad Hoc I, or PAH I), to be the primary forum for this work. All political forces in the MPR were represented in these bodies. These forces came to an early consensus in November 1999 on three major points:

  1. To leave the Constitution’s preamble untouched, thereby retaining Pancasila as the state ideology;
  2. To maintain the basic structure of the state as unitary, thereby thwarting an emerging debate on federalism; and
  3. To maintain the basic structure of the government as purely presidential, thereby preventing a debate on the re-establishment of parliamentary government.

Apart from these macro-level issues, all other parts of the Constitution were up for debate.

By retaining Pancasila as the state ideology, the MPR has assured the military that it would avoid a debate over an Islamic state. However, this did not stop Islamic political parties proposing to insert the seven famous words into Article 29, not into the preamble. The issue would not be the establishment of an Islamic state but the implementation of shari’a. This is a different issue but a closely related one. At the same time, Islamic political parties could still propose the amendment of other Articles based on their understanding of shari’a. In other words, as long as the preamble to the 1945 Constitution, which consists of the Pancasila, is untouched, other proposals to amend the constitution would be welcome.

Between November 1999 and May 2000, PAH I conducted witness hearings, provincial consultation meetings, and international study missions. After the legislature reconvened in May 2000, PAH I conducted a detailed article-by-article review of the 1945 Constitution, which it completed at the end of June. The PAH I proposals included revisions of the sixteen articles of the existing 1945 Constitution and the draft text for five new articles.

At the MPR annual session in August 2000, the amended text was approved for five new articles of the Constitution: on regional authorities, the national legislature, citizens and residents, defence and security, and national symbols. In addition, two new articles, on human rights and on the national territory, were approved. These amendments, collectively called the second amendment, and the contents of several of the MPR decrees passed at the 2000 annual session, addressed four important issues in Indonesian politics, each of which contained important changes to the Indonesian political system:

  1. Civil-military relations,
  2. The separation of powers, and checks and balances,
  3. Decentralization of power to the regions, and
  4. A bill of rights.

Although the second amendment began to address some of the fundamental weaknesses of the 1945 Constitution, many issues remained on the table. The MPR decided, in August 2000, to give itself a two-year timetable, until the annual session of August 2002, to make further decisions on constitutional amendments. This was the latest annual session at which it was possible to pass major changes to the structure of state institutions, with enough lead time to put the technical arrangements in place to conduct regularly scheduled elections under the new arrangements in 2004.

Some of the primary issues that remained on the table included the relationship of religion and politics; the structure and powers of the national legislature (unicameral or bicameral); the method of election for the president and vice-president; and the establishment of an independent judiciary, with powers of judicial review and constitutional interpretation.

The delays in addressing these issues contributed to the presidential crisis in 2001 and probably retarded the process of democratic consolidation. As mentioned earlier, President Abdurrahman Wahid, who replaced Habibie in October 1999, was impeached by the MPR, following his Presidential Decree to dismiss the MPR and the Golkar party. One of the primary causes of the presidential crisis of 2001 was conflict between the President and legislators, over the weak status of the presidency. This weak status was a result of the rules of the game, contained in not only the original 1945 Constitution, but also the first and second amendments.

Another problem was that the Supreme Court lacked powers of constitutional interpretation and judicial review. Prior to the passage of the third amendment in November 2001, the article on the judiciary was one of the most inadequate parts of the 1945 Constitution. It only said that there are to be a Supreme Court and other judicial bodies whose make-up and powers would be regulated by law. The third amendment made significant progress in resolving many of these issues. It reiterated the power of the Supreme Court to conduct judicial reviews of legal determinations below the level of laws in the hierarchy. It transferred authority over the judicial review of laws from the MPR to the new Constitutional Court. The third amendment also indirectly granted the Constitutional Court the power of constitutional interpretation, by stipulating that the court can “resolve conflicts of authority between state institutions whose powers are established by the Constitution”. Finally, the Constitutional Court is also required to make a legal decision on the validity of the DPR’s articles of impeachment, under the new impeachment rules contained in the third amendment.

Soon after the August 2000 annual session, PAH I formed a thirty-member “Team of Experts” (Tim Ahli) to assist it in its work. During the first half of 2001, much of the time and energy of PAH I was spent studying and debating various proposed amendments with members of this team. In mid-2001, PAH I became preoccupied with helping to prepare for the Special Session in July, which removed President Abdurrahman Wahid and installed President Megawati.

The MPR’s attention then turned to preparing for its next annual session, in November 2001, postponed from August owing to the special session. This session achieved agreement on many of the remaining issues, but decisions continued to be postponed, on several crucial items, until 2002. Most importantly, the third amendment, passed at this session, clarified the presidential nature of the system and continued the process of establishing greater separation of powers, and checks and balances, between the three branches of government. The results were:

  1. It stripped the MPR of its status of having formally unlimited powers;
  2. It inserted a chapter on elections as the basis for legitimate political power;
  3. It established the principle of direct, popular election of the president and vice-president;
  4. It clarified the grounds and procedures for presidential impeachment;
  5. It underscored that the president cannot dissolve the legislature;
  6. It established a second chamber of the national legislature, to represent regional interests;
  7. It strengthened fiscal oversight institutions; and
  8. It created a constitutional court and a judicial commission.

However, agreement could not be reached on several important issues. One of these was the make-up of the MPR. Under one proposal, the MPR would consist strictly of the two chambers of the national legislature. Under the other proposal, in addition to these two chambers, the MPR would also continue to include unelected members representing the military, police and social organizations. The second unresolved issue was the procedures for the second round of the presidential elections. The third amendment states that a ticket which wins a simple majority of the national popular vote, as well as at least 20 per cent of the vote in at least half the provinces, is considered the winning one. If no ticket crosses these thresholds, however, then there must be a second round. Under one proposal, the second round would also be a popular vote between the top two tickets from the first round. Under the other proposal, in the second round the winning ticket would be chosen by the MPR from the top two vote-getters in the first round. Other important unresolved issues included the relationship of religion and the state, and the independence of the central bank.

In August 2002, the MPR convened for another annual session and succeeded, after extended debate, in meeting its self-imposed deadline for completing this round of amendments. Under the amendment to the 1945 Constitution, the MPR is a fully elected body based on the 2004 General Elections, consisting strictly of the two houses of the national legislature. The second round of presidential elections, if necessary, will also be by popular vote. The outcome of the debate on the central bank was less propitious: its independence (or lack thereof) will be regulated by law rather than the Constitution. The MPR also approved retaining the original language of Article 29, on religion, thereby rejecting efforts to establish a constitutional basis for the implementation of shari’a. I will deal with this issue later.

Criticisms

The overall results of the constitutional reform have been highly criticized. First, the process of amending the 1945 Constitution was seen as pragmatic and politically oriented. The main reason is that the MPR acts as a constitutional convention. The MPR did not want to establish an independent constitutional convention. In taking this position, contrasts were drawn with the new constitutions adopted in recent years by Thailand, the Philippines and South Africa, all of which have established this method.

A career politician attending a constitutional convention may choose simply to advance his future political prospects. The constitutional amendment by MPR members would easily result in a patchwork, since it could be affected by party interests. Accordingly, the people should become the best judges about what is and what is not in their own interest. The people should elect persons noted for their integrity as well as their honesty and judgement—qualities not always found in those who choose politics for a career.

By limiting citizen input to the process, the MPR may also unintentionally have limited the popular legitimacy accorded to the amendments. There are many books and even drafts of the constitution produced by scholars, research institutions and political parties. However, this public participation could not influence the formal debate within the MPR unless they were invited as part of the Team of Experts at Badan Pekerja meetings.

Another drawback is that in 1999-2004 the MPR itself was not a fully democratically established body. Although the majority of the members of the MPR (1999-2004) were elected through open and fair general elections, on 7 June 1999, which were held based on electoral reforms, according to R. William Liddle, the electoral system was not substantially changed. “The main argument is that those members of the DPR and the MPR were still chosen by the national party leaders of their respective parties.” This suggests that members of the DPR and the MPR are accountable to their party leaders; not to the people. Representation is nothing without accountability. An accountable political system holds both the government and the elected members of parliament responsible to their constituents to the highest degree possible. To the extent that the democratic legitimacy of the MPR has been called into question, the constitution it has produced may suffer a legitimacy deficit as well.

The MPR solicited citizen input on only a limited basis, preferring to reserve to itself the final decision on amendments. The MPR conducted public hearings across the country, and its plenary sessions were open to the public, but it rejected all calls for a popular referendum on amendments and, until 2002, refused to consider establishing a Constitutional Commission (Komisi Konstitusi). The MPR has retained control of the formation of this commission, has postponed its formation until 2003, and has limited its mandate to “studying” the constitutional amendments that have already been approved.

However, this idea meant very different things to different participants in the debate. At one extreme, the NGO coalition envisaged the Commission as an independent body without membership from the legislature, which would present its report to the MPR on an accept or reject basis. At the other extreme, the detailed concept put forward in debate by PDI-P was essentially an enlargement of external, particularly regional, assistance to the existing constitutional review process taking place under the direction of the Badan Pekerja of MPR. Others rejected it altogether.

This commission will report to the MPR, while the NGO proposal was for an independent body. Several members of the MPR whom I interviewed remind the Commission that amending the Constitution will require a petition by one-third of the members of the MPR and will require the support of over half its total membership with two-thirds of the members present. Therefore, it will not be easy for the Commission to persuade the MPR to agree with its recommendation.

Moreover, 106 members of the Parliament took the view that the MPR has committed constitutional suicide. The amended Article 1(2) in 2001 abolished the status of the MPR as the sole embodiment of popular sovereignty. Popular sovereignty was now to be determined “according to the Constitution”, implying that sovereignty could be subdivided between a number of institutions. This could be interpreted to mean that the MPR could not complete the fourth amendment (2002), since it does not have the legitimacy to do so. Fourteen members of the PDI-P, such as Amin Aryoso, Sadjarwo Sukardiman, Bambang Pranoto, and Imam Mundjiat, went further, by suggesting that the MPR return to the original 1945 Constitution, and abandon the first, second and third amendments. Such interpretation and suggestions were rejected by the PKB and Golkar, since it would lead to a constitutional crisis. The association of retired Indonesian military members (Pepabri) has openly expressed opposition to the constitutional amendments. Their argument is that the process of the constitutional amendment has deviated from its original course, and must therefore be stopped.

Secondly, it argues that, by making partial changes, especially regarding executive-legislative relations, the first and second amendments created as many problems as they solved. The Indonesian Institute of Sciences or LIPI took the position that not only was the process pragmatic and politically oriented, but also the language is used in the amendments is far from normative-legal language, its structure is inconsistent and, more importantly, its paradigm is unclear. For instance, the original Constitution contained numerous vague and incomplete clauses which, in an authoritarian context, allowed Presidents Soekarno and Soeharto to establish dominant presidencies. One prominent theme in the first two amendments was, therefore, to bolster the position of the legislature, and weaken the presidency, in order to strengthen the new democracy by instituting greater checks and balances.

However, as Blair King points out:

The problem—in the absence of amendments to other articles regarding the presidency—is that the balance of power seesawed to the opposite extreme. In a democratic context of political pluralism and competition, the executive branch became severely crippled by its dependence on legislative support, resulting in political paralysis and instability.

The third amendment reversed this trend and strengthened the presidency, primarily by establishing the principle of direct election of the president and vice-president and by tightening the rules and procedures for presidential impeachment. Furthermore, accordingly, despite the changes in the first three amendments that weaken presidential power, the Indonesian president remains comparatively powerful.

The criticisms above are related to the process and method of amending the 1945 Constitution. The third criticism will focus on some aspects of the content of the amendment. For example, the approval of the DPR must be sought for the appointment of ambassadors, the governor of the Indonesian bank, the chief of the national police and the chief of the Indonesian military. It seems that the presidency will not be effective since the president cannot appoint or dismiss any of his/her key office holders without the approval of the Parliament. This also means that any candidate for key offices should persuade members of parliament to endorse her/his candidacy. This would invite political (and economic) bargaining.

Moreover, according to the Amendment of the 1945 Constitution (Article 20.5), the Law shall come into force one month after the Parliament passed it regardless whether the President signs the Law or not. This also could lead to constitutional crisis. For instance, President Megawati did not sign the Law on National Education since her political party was not happy with the process of drafting and the content of the bill. However, the law has come into force. How can one expect the president to follow the law that she/he did not want to sign?

In addition, Article 28I(1) states that “the right not to be prosecuted under retrospective laws are basic human rights that may not be interfered with under any circumstances at all.” This has invited controversy since it did not allow for past human rights offences to be prosecuted in the new human rights court. It was feared that the lack of a retroactive clause might fail to satisfy the international community’s demands that those responsible for gross violations in East Timor should be prosecuted.

Suspicion was intensified as it was exposed that the military had actively lobbied for the insertion of this clause. The clause, in fact, had not been discussed in the PAH I before the annual session. However, the addition of its clause was decided by political manoeuvring of the military against other MPR members during the annual session. Neither did Committee A of the MPR deliberate about it. Thus, it is a procedurally questionable amendment as well.

Without retroactive prosecution of crimes against humanity, it would be extremely difficult to convict those responsible for human rights violations in East Timor and elsewhere, and to show the international community that Indonesia was making a serious effort to hold those responsible for gross violations accountable.

The MPR neglected the fact that actually some human rights can be completely suspended in times of a serious and widespread emergency affecting the very life and existence of the whole country. Such suspension in times of public emergency is called derogation. States can create limitations on the exercise of such human rights, so long as they are reasonably based on one of these grounds, have been created by proper legal procedure, and are accessible, clear, and understandable to the public.

Shari’a and the Constitutional Reform

What about the discourse of shari’a vis-à-vis constitutional reform? It is essential to acknowledge that whilst the modernist (represented by the Masyumi) and traditionalist groups (represented by the NU Party) shared the same views in 1950s, that the Jakarta Charter should be restored, making their views contrary to those of the nationalist group, such polarization in 1999-2002 was no longer extant.

If we accept the classic categorization of Geertz, in the 1955 constitutional debate, the relationship between Islam and politics polarized the Muslim community into santri and abangan socio-religious groupings. While the santri were inclined to direct their political orientation towards Islamic political parties, the abangan were more apt at expressing their political associations within the Nationalist (PNI) or Communist (PKI) parties. Therefore, it is safe to argue that the debate in 1955 was a reflection of the polarization between santri and abangan.

In the 1955 parliamentary elections, two santri political parties, Masyumi and NU, representing 40 per cent of the electorate, favoured replacing Pancasila with Islam as the foundation of the Indonesian state. Muhammadiyah, then and now the pre-eminent modernist organization, provided the core leadership of Masyumi.

However, during constitutional reform in 1999-2002, both Muhammadiyah and NU, as an autonomous social and educational organization, and through their sponsorship of the PAN and PKB parties respectively, strongly oppose the state enforcement of shari’a, as conceived by other Islamic political parties (PPP and PBBB). The NU, still under the guidance of former President Abdurrahman Wahid, is committed to a policy of religious pluralism and opposes the identification of the state with Islam. The Muhammadiyah’s chairman, Ahmad Syafii Ma’arif, has said, “implementing the Jakarta Charter will only add more burden to the country, which is now on the brink of collapse”. At the same time, there are some elements of the modernist group in the PBB and the traditionalist group in the PPP which support the inclusion of shari’a into the Constitution. As can be seen, nowadays the santri group have differing opinions and positions.

Therefore, I offer a suggestion of a new polarization within Muslim groups during 1999-2002: formal versus substantive shari’a groups. The formal shari’a holds the view that all constitutional issues should be based on shari’a practised by the Prophet and the companions, in Medina fifteen centuries ago. They refer to the Qur’an, the tradition of the Prophet and the Medina Constitution. Adherents of Islam constitute around 87 per cent of the country’s population. For the formal shari’a group, this fact alone should function as a constitutional legitimizer for making shari’a an integral part of the Constitution. There should be no single word in the Constitution which is in contradiction with shari’a. The Constitution should, in point of fact, be based on shari’a.

In contrast, the substantive shari’a support group holds that shari’a should be reinterpreted in line with democracy and constitutionalism, in order to choose or to create the best suitable options. They do not oppose shari’a—no Muslim will do so. Instead, they are against the idea that the state should enforce shari’a. They do not refute the concept that the spirit of shari’a might contribute to the amendment of the 1945 Constitution. They take the middle position, between secularism and fundamentalism.

In this regard, the PAN and PKB, supported by Muhammadiyah and the NU respectively, could be classified as the substantive shari’a group, while the PPP and the PBB could be classified as the formal shari’a group. This is a strong indication that, unlike in the 1955 debate, not all Islamic parties now adhere to a single ideological orientation. They seem to have different, often contradictory, political agendas. Of the big seven political parties in 1999, the PBB, which won 2 per cent of the ballot, campaigned in favour of state enforcement of shari’a. If the PBB votes are combined with those for the PPP, the pro-formal shari’a group total vote rises to 12 per cent (71 seats), a 28 per cent decline since 1955.

How can one explain this decline? One of the possible answers is that, as has been highlighted, both Muhammadiyah and the NU stated officially that they do not support the formal shari’a group.

Mujani and Liddle explain further:

The second explanation claims that Sukarno’s and Suharto’s repression of political Islam between 1955 and 1999—and the response of Muslim politicians and intellectuals to that repression—produced a sea change in Muslim political culture. A few turned to violence, but the government crushed them. Many more, notably the Masyumi ideologue Mohammad Natsir and his followers, maintained their pro-shari’a position but retreated into the world of education while awaiting a more favorable political climate. After the fall of Suharto, this group reemerged as PBB, winning only 2 per cent of the 1999 vote. The largest group, however, consisted of young Muslims leaving the schools and universities from the 1970s onward who wanted to make their peace with the secular state. They were led on the modernist side by the religious thinker Nurcholish Madjid and on the traditionalist side by the activist Abdurrahman Wahid. They and their descendants today hold many key positions in government and civil society. They control Golkar, PKB, and PAN, and are responsible for those parties’ opposition to state enforcement of the shari’a.

Another distinct feature is that while Muslim groups paid attention to the restoration of the Jakarta Charter in 1955, all political parties shared similar views against changing or amending the preamble to the 1945 Constitution during the 1999-2002 debate. Therefore, the recent issue was to what extent shari’a can contribute to, or play a role in, the body of the Constitution (not in the preamble). As will be explained through the discussion in the following chapters, the formal shari’a groups took the view that shari’a should play a role mainly by inserting the famous seven words into Article 29, while the substantive shari’a group took the position that shari’a should be used as spiritual inspiration. Thus it was not necessary to put shari’a, in a literal and textual way, into Article 29 nor any other Articles in the Constitution.

What about the Muslim perception on the state enforcement of shari’a? National opinion surveys conducted in 2002 by the PPIM (Center for the Study of Islam and Society) at the State Islamic University in Jakarta appear to show that the majority of Indonesian Muslims favour the Islamic state. Seventy-one per cent of respondents in 2002 agreed “that the state should require all Muslim men and women to abide by the shari’a”. Sixty-seven per cent in 2002 agreed that “Islamic government … under the leadership of Islamic authorities (ulama) is best for a country like ours”. However, this is balanced by low percentages in favour of the state’s enforcement of fasting (12.9 per cent) and of five daily prayers (9.9 per cent).

There are indications in the PPIM results that the popular understanding of shari’a is looser, more abstract, than that by the formal shari’a group. Many Indonesian Muslims may favour the shari’a, without agreeing to its more controversial provisions. This suggests that the meaning of shari’a is varied among Indonesian Muslims. For example, only 33 per cent in 2002 agree “that the law of cutting off the hand of a Muslim thief, as stated in the Qur’an, must be implemented by the government of this country”. This reflects ambiguity of Muslim respondents: they conform on the general idea of adopting shari’a but they dispute over how it should be implemented. The survey has also shown that the support base of formal shari’a is not the majority one and this is confirmed by the fact that the PBB and PPP gained only 12 per cent of the seats in Parliament.

Conclusion

The original 1945 Constitution was an inappropriate foundation on which to erect the superstructure of a democracy. The constitutional supremacy of the MPR did not allow for the checks and balances which typify healthy presidential systems. This was reinforced by the lack of explicit protections for basic human rights in the Constitution. In addition to these philosophical considerations, four decades of authoritarianism, anchored by the 1945 Constitution, served as the proof of the pudding for many Indonesians. Since its reinstatement by President Soekarno on 5 July 1959, the 1945 Constitution has facilitated the establishment of two authoritarian regimes—Guided Democracy under Soekarno and the New Order under President Soeharto, which together lasted for almost four decades. The challenge, as the transition to democracy began in 1998, was what to do about the Constitution. I have outlined briefly in this chapter both the results and the criticisms of the constitutional reform.

I have demonstrated that for more than half a century Indonesia has been unable to conduct an uninterrupted dialogue, concerning the position of shari’a in the Constitution. In 1945 and 1955, efforts were hampered by the pressure of time and political manoeuvrings by Soekarno and the military. Under Soeharto, debate was forbidden, since his government was afraid of its disruptive potential. The moment for free dialogue and debate, through constitutional mechanisms, came after Soeharto’s resignation. I have discussed the emergence of Islamic political parties in the post-Soeharto era. Some of these parties proposed the reinsertion of the famous seven words into the Amendments to the 1945 Constitution, while others took a substantive approach by using shari’a only as an inspiration or “spirit” for debate.

The above discussion will assist our discussion in dealing with the main case studies. In the next chapters, I will examine the role of shari’a in the amendment to the 1945 Constitution concerning human rights provisions, the rule of law, and the relationship between the state and religion.