Presidential Power’s Limitation to Emergency Provisions in Indonesia

Abstract

After the demise of Suharto’s regime, Indonesia’s 1945 Constitution was successfully revised from 1999 to 2002. This period of constitutional revision added emphasis to avoid authoritarian administrations such as those experienced during the times of Sukarno and Suharto; consequently, the constitution was re-designed to limit the powers of the government. This article examines the trajectory of constitutional practices in the post-constitutional revision by taking into account emergency provisions exemplifying the new challenges of democratization in contemporary Indonesia. Currently, emergency provisions are amongst the unamended norms in the 1999-2002 agenda of constitutional revision. As a consequence, authoritarianism threatens the future of liberal democracy in Indonesia, especially the enjoyment of civil and political rights. Hence, this analysis elucidates the extent to which the deficit is inherent to Indonesia’s revised constitution on emergency laws and how this deficit threatens the design of liberal constitutionalism. Selected cases were collected to illustrate how Indonesia’s current constitution is reflected, articulated, debated, and negotiated toward the idea of legally limited powers. The deficits have resulted in two major adverse impacts; first, the ambiguous provisions on emergency laws prevail as they are mentioned in Articles 12 and 22 of the 1945 Constitution; second, the President’s monopoly on the power to issue emergency laws is a result of the absence of limitations outlined in the constitution. While the monopoly of such a power is often utilized by the government under the backdrop of constitutional legitimacy, there is possible effort to eschew potential authoritarianism to add the constitutional restraint to presidential powers in the agenda of constitutional revision.