Model Rekonstruksi Tradisi Bernegara dalam Konstitusi Pascaamandemen UUD 1945

constitutional system. On the other hand, the constitutional amendment recognizes and
preserves customary or adat law at the local or regional structure. However, the recognition
of adat law at the local structure demonstrates more on preservation than a reconstruction of
tradition. Preservation has purpose mainly to maintain the existence of tradition, while the
reconstruction has purpose to apply tradition in a modern state structure.
Generally, it can be concluded that the amendment of the 1945 Constitution does not
have an obvious pattern of reconstruction of tradition. It contradicts with the original meaning
of the founders that obviously believed tradition as a basic to create a national constitutional
system.

BIBLIOGHRAPHY

Anderson, Benedict R. 1990. O’G, Language and Power Exploring Political Cultures in
Indonesia, Ithaca: Cornell University Press.
Austin, J. 1954. The Province of Jurisprudence. (ed. H.L.A. Hart). London: George
Weidenfeld & Nicholson.
Azhari, Aidul Fitriciada. 2010. Tafsir Konstitusi Pergulatan Mewujudkan Demokrasi di
Indonesia. Solo: Jagad Abjad.
Azhari, Aidul Fitriciada. 2011.UUD 1945 sebagai Revolutiegrondwet Tafsir Poskolonial atas
Gagasan-gagasan Revolusioner dalam Wacana Konstitusi Indonesia. Yogyakarta:
Jalasutra.

Budiardjo, Miriam. 1977. Masalah Kenegaraan. Jakarta: Gramedia.
Glenn, H. Patrick. 2000. Legal Tradition of the World. Oxford: Oxford University Press.
Habermas, Jurgen. 1999. The Inclusion of the Other: Studies in Political Theory. Cambridge,
Mass. : The MIT Press.
Hatta, Mohammad. “Ke Arah Indonesia Merdeka” at Miriam Budiardjo. 1977. Masalah
Kenegaraan. Jakarta: Gramedia.

46

Huda, Miftakhul Huda et al. 2010. Naskah Komprehensif Perubahan Undang-Undang Dasar
Negara Republik Indonesia Tahun 1945. Jakarta: Sekretariat MKRI.
Huntington, Samuel P., 1995. Gelombang Demokrasi Ketiga, Jakarta: Pustaka Utama Grafiti.
Kartodirdjo, Sartono. “From Ethno-Nationalism to the “Indonesia Merdeka” Movement
1908-1925”. Sri Kuhnt-Saptodewo, Volker Grabowsky, dan Martin Grosheim (eds.).
1997. Nationalism and Cultural Revival in Southeast Asia: Perspectives from the
Centre and the Region, Wiesbaden : Harrasowitz.
Kelsen, Hans, 1973. General Theory of Law and State. New York: Russel & Russel.
Kusuma, RM. A.B., 2004. Lahirnya Undang-Undang Dasat 1945. Jakarta: BP Fakultas
Hukum Universitas Indonesia.
Lev, Daniel S., “Colonial Law and the Genesis of the Indonesian State.” Indonesia 40

(October 1985): 57-74.
Lukito, Ratno. 1998. Pergumulan Antara Hukum Islam dan Adapt di Indonesia. Jakarta:
INIS.
Popper, Karl. 2002. Conjectures and Refutations. London/New York: Routledge.
Rambe, Safrizal. 2008. Sarekat Islam Pelopor Bangkitnya Nasionalisme Indonesia 19051942. Jakarta: Yayasan Kebangkitan Insan Cendekia.
Rothermund, Dietmar, “Nationalism and the Reconstruction of Traditions in Asia”. Sri
Kuhnt-Saptodewo, Volker Grabowsky, dan Martin Grosheim (eds.). 1997.
Nationalism and Cultural Revival in Southeast Asia: Perspectives from the Centre
and the Region, Wiesbaden : Harrasowitz.
Saptodewo, Sri Kuhnt-, Volker Grabowsky, dan Martin Grosheim (eds.). 1997. Nationalism
and Cultural Revival in Southeast Asia: Perspectives from the Centre and the Region,
Wiesbaden : Harrasowitz.
“SBY: Tak Mungkin Ada Monarki di Indonesia,” Harian Yogya, 26 November 2010.
Soekarno. 1959. Res Publica Sekali Lagi Res Publica. Jakarta: Kementrian Penerangan RI.

47

not use a model of relative-particular to reconstruct the tradition in the constitutional
amendment. Conversely, the constitutional amendment conducts a separated agenda:
adopting the Western constitutional system, but at this same time accept the Islamic tradition

to be applied simultaneously in the Indonesian constitutional system.
Both non-Javanese and Islamic tradition have a same interest to reject authoritarian
interpretation of Javanese tradition so that both traditions adopt Western constitutional
system that considered more democratic. However, because there is no conflict between nonJavanese and Islamic tradition, so there is no resistance to accept Islamic tradition in the
constitutional system of Indonesia. Consequently, although structurally the constitutional
amendment adopts the Western constitutional system, particularly American presidential
system, but Islamic law can be operated as a part of Indonesian constitutional law.

X.

CONCLUSION
Conceptually, tradition cannot be distinguished from modern rationality because
rationality in the Western modern society essentially is a tradition derived from the ancient
Greek civilization. Tradition, similar with law or legislation, has a social function to maintain
social order and certainty. Therefore, in line with development of nationalism and modern
nation state, many countries maintain their tradition by a reconstruction of tradition in each
constitutional system.
However, there is no single pattern of reconstruction of tradition. In history of
Indonesia, there are two patterns of reconstruction of tradition, which used as model for the
reconstruction of tradition in the constitutional system of Indonesia. First, the absoluteparticular model that emphasizes on originality of tradition so that tradition should be

reconstructed in the constitution absolutely without a significant modification or adjustment.
Second, the relative-particular that emphasizes on relativity or universality aspect of tradition

44

so that tradition should be reconstructed by extension and adaptation with size and character
of a modern nation-state.
Historically, before the amendment of the 1945 Constitution, the reconstruction of
tradition was practiced based on absolute particular model, while after the constitutional
amendment tends to reject to reconstruct the tradition at the national structure but recognize
the tradition at local structure. The reconstruction of tradition that practiced according to
absolute particular model has created two authoritarian regimes, namely Guided Democracy
and New Order. Those regimes applied the 1945 Constitution based on their interpretation of
native democracy of Indonesia that referred to Javanese tradition. The interpretation of
Guided Democracy emphasized on a guided deliberation process, which guided by President
as the highest national leader. While New Order more emphasized on the unity between the
State and the people according to the idea of Soepomo about the integrality state.
The constitutional amendment has no discourse about reconstruction of tradition at
the national structure. Conversely, the constitutional amendment adopts a pure presidential
system that practiced in the American presidential system. The adoption has purpose to create

a constitutional system that democratic, advanced, and rational. This perspective shows that
the constitutional amendment has been guided by a distinction between tradition and
rationality. According to Karl Popper, this perspective is incorrect, because rationality in the
modern Western society essentially derived from tradition of the ancient Greek civilization.
Consequently, the rejection of tradition in the constitutional amendment based on rationality
purpose has no a strong academic reason.
However, at the national structure, the constitutional amendment also recognizes the
Islamic law to be applied by the Religion Courts. The recognition can be understood as a kind
of reconstruction of Islamic tradition in partly, particularly in part of judiciary. Thus, at the
national structure, there is a plurality where Islamic law can be operated in the Western

45

constitutional system. On the other hand, the constitutional amendment recognizes and
preserves customary or adat law at the local or regional structure. However, the recognition
of adat law at the local structure demonstrates more on preservation than a reconstruction of
tradition. Preservation has purpose mainly to maintain the existence of tradition, while the
reconstruction has purpose to apply tradition in a modern state structure.
Generally, it can be concluded that the amendment of the 1945 Constitution does not
have an obvious pattern of reconstruction of tradition. It contradicts with the original meaning

of the founders that obviously believed tradition as a basic to create a national constitutional
system.

BIBLIOGHRAPHY

Anderson, Benedict R. 1990. O’G, Language and Power Exploring Political Cultures in
Indonesia, Ithaca: Cornell University Press.
Austin, J. 1954. The Province of Jurisprudence. (ed. H.L.A. Hart). London: George
Weidenfeld & Nicholson.
Azhari, Aidul Fitriciada. 2010. Tafsir Konstitusi Pergulatan Mewujudkan Demokrasi di
Indonesia. Solo: Jagad Abjad.
Azhari, Aidul Fitriciada. 2011.UUD 1945 sebagai Revolutiegrondwet Tafsir Poskolonial atas
Gagasan-gagasan Revolusioner dalam Wacana Konstitusi Indonesia. Yogyakarta:
Jalasutra.
Budiardjo, Miriam. 1977. Masalah Kenegaraan. Jakarta: Gramedia.
Glenn, H. Patrick. 2000. Legal Tradition of the World. Oxford: Oxford University Press.
Habermas, Jurgen. 1999. The Inclusion of the Other: Studies in Political Theory. Cambridge,
Mass. : The MIT Press.
Hatta, Mohammad. “Ke Arah Indonesia Merdeka” at Miriam Budiardjo. 1977. Masalah
Kenegaraan. Jakarta: Gramedia.

46

instrument of collectivism in economy to achieve social justice for all the people of
Indonesia. Meanwhile, the founders enacted the constitutional provisions to preserve adat law
and native structure that practiced in several regions and villages in the entire of Indonesia.
Those included preservation of monarchy that until today practiced in Province of
Yogyakarta and various native villages such as desa in Java, nagari in Minangkabau-West
Sumatra, gampong in Aceh, dusun and marga in South Sumatra, huta and kuria in TapanuliNorth Sumatra (Kusuma, 2004: 359-370).

VIII.

DEVELOPMENT OF THE RECONSTRUCTION OF TRADITION BEFORE THE
CONSTITUTIONAL AMENDMENT
Practically, the ideas of reconstruction of tradition had created two authoritarian
regimes that occured during the Guided Democracy and the New Order eras. However, the
same idea also created a democratic system during the parliamentary government. In fact,
authoritarian regimes were evolved after the 1945 Constitution reapplied on 5 July 1959.
Meanwhile, democratic regime was occured under the Provisional Constitution during 1950s.
Those facts made an understanding that the reconstruction of tradition in the 1945

Constitution was interpreted based on authoritarian sense. Moreover, democratic practice
during the parliamentary era was also viewed as an expression of liberal democracy that
contradicted with the genuine democracy of Indonesia.
The following section will describe development of the reconstruction of tradition that
practiced in those regimes: the parliamentary democracy, the Guided Democracy, and the
New Order.
Firstly, the parliamentary democracy was actually established since 14 November
1945 when the members of parliament made a convention that applied the parliamentary
system under the 1945 Constitution which apply the presidential cabinet. After the

29

independence revolution during 1945-1949, the parliamentary democracy was continued
under the Constitution of the Republic of the United State of Indonesia and the Provisional
Constitution of 1945. Particularly, the Provisional Constitution of 1950 maintained five
principles of Pancasila, which reconstructed by the founders from traditions. In addition, the
Provisional Constitution maintained three provisions of the 1945 Constitution—called as the
essential of the 1945 Constitutional—that are article 27, 29, and 33 of the 1945 Constitution.
Those articles expressed the ideas of reconstruction of traditions, particularly article 29 and
33. Article 29 contains the principle of monotheism and article 33 consists of collective

economy system. Particularly, the Provisional Constitution recognized collectivism in
property right, which determined in article 26 (3) that: “Property right has a social function.”
In addition, the constitution determined explicitly the application principles of deliberation
and representative in system of government in every stage: national, regional, and village
communities (art. 131 and 132).
However, structurally the Provisional Constitution of 1950 applied the parliamentary
democracy, which the founders denied because it expressed Western liberal democracy. As it
was explained above, the founders agreed to refuse the Western liberal democracy because
the system encouraged equality in politic but created social injustice. For that reason, there
was an opinion that liberal democracy was inconsistency with tradition values that
reconstructed in five principles of Pancasila. In fact, although liberal democracy created
democracy in politic, but most people have opinion that the parliamentary government
ineffective to maintain political stability. Proliferation of political party and political
brokerage caused by government should resign in short term. Political conflict escalated into
ideological conflict. Political discontent in several regions developed into separatism.
Consequently, political conflicts and separatism spread throughout the country. Eventually,

30

government was ineffective to implement the national development (Azhari, 2011; Nasution,

1993).
Therefore, President Soekarno as a Head of State decided to reapply the 1945
Constitution to settle ideological conflict and separatism and to ensure the implementing of
national development. Then on 5 July 1959, President Soekarno promulgated a Presidential
Decree that comprises: (1) dissolving the Constitutional Assembly, (2) restoring the 1945
Constitution and (3) the establishment of the Provisional People’s Consultative Assembly
(MPRS) and the Provisional Supreme Advisory Council (DPAS). The Presidential Decree
marked the beginning of the Guided Democracy era.
Secondly, the Guided Democracy was a system that created by President Soekarno as
the interpretation of the 1945 Constitution based on the original democracy of Indonesia.
However, his interpretation was different from his opinion when constitutional making
process in 1945. If at the time of the constitutional making process Soekarno saw the
Indonesian tradition as a democratic tradition with social justice, then in the Guided
Democracy he interpreted the Indonesian tradition based on autocratic paradigm. Soekarno
explained about the Guided Democracy as follows:
The Guided Democracy is a democracy that suitable with character and life of
Indonesian nation…. The core of “guided” in the Guided Democracy is a deliberation,
but a deliberation that “led by wisdom,” not by debates and political strategy that
finished with power struggle and voting based on “pro and contra”. The results of
“deliberation that led by wisdom” then handed over to the President, who also elected

by “deliberation” (Soekarno, 1959:20)

Based on his explanation, Soekarno believed that the Guided Democracy was a kind
of reconstruction of Indonesian tradition. However, on contrary to his opinion in 1945 that
promoted democratic process, in the Guided Democracy he emphasized more on role of the
leader to guide deliberation process. Dissatisfied with liberal democracy that gave more
emphasis to power struggle and voting than deliberation process encouraged Soekarno to take
31

over all of the constitutional process and put it under his control. He believed democracy
would be more effective to achieve the social prosperity if it can be controlled by a concentric
leadership. Structurally, his opinion can be realized with the presidential government that
provides legitimacy to President to develop a concentric government. In addition, the
interpretation of deliberation as a process without voting enabled President to interfere
deliberation process in representative bodies.
In fact, there was no significant rejection among the people against the idea of Guided
Democracy. It does not mean that people were fed up with the political conditions or that
they were powerless to fight President Soekarno that backed by the military. However,
people felt that a concentric government and held by a strong leader were more suitable with
the native structure of Indonesian society. Particularly in Javanese tradition, the region where
Soekarno came from, the state or Nagara, is believed as a concentric power with the leader as
the center whose absolute power controlled not only human and society but also the universe
(Lombard, 2008:60-71; Seomardjan, 1961:113-114).
For the first two years, Guided Democracy had succeeded in creating a political
stability and quelling separatism in various regions. For that reason, the Provisional People’s
Consultative Assembly appointed Soekarno as a life President to appreciate his merit in
national integration. However, Soekarno cannot manage economic development effectively.
His success in national integration cannot be followed by the achievement in economy and it
emerged dissatisfaction among the people. Even, Soekarno was entrapped in a political
adventure with communist party that culminated in a chaotic situation during 1965-1966. It
caused mass murder with victims approximately 500,000 people. Economic discontent and
political uncertainty eventually forced Soekarno to hand over power to Lieutenant General
Soeharto on 11 March 1966, who then substituted Soekarno as the second Indonesian
President. Then, the New Order ruled Indonesia until 1998.

32

Thirdly, the New Order, basically, maintained the interpretation of Soekarno about the
genuine Indonesian democracy. However, New Order officially developed a discourse as an
order to correct deviation of the Pancasila and the 1945 Constitution that practiced by
Soekarno and his Guided Democracy. Therefore, the New Order claimed that they practice a
system of democracy consistent with Pancasila as the state ideology and the 1945
Constitution as the state constitution.
Nevertheless, the interpretation of genuine democracy did not refer to Soekarno
anymore. The New Order referred to the idea of Soepomo about the integrality state (Decree
of MPR No. II/MPR/2993). The idea of integrality state provided many benefits to the rulers
of the New Order because it gave legitimacy for them who came from the army. It was
different with the idea of Guided Democracy that provided legitimacy personally for
Soekarno. In addition, it can be exploited to eradicate Soekarno influences in constitutional
discourse of Indonesia.
Based on the integrality state, the New Order developed a concept about democracy
of Pancasila that is viewed as a manifestation of genuine democracy of Indonesian people as
interpreted within the integrality state concept. The relation between citizen and the state was
interpreted based on a concept of “manunggaling kawula lan Gusti” which means a unity of
the servant as people protected and the Lord as the protector or patron. This is a patron-client
relationship to create a political hegemony, where the State interests transcend the citizen
ones. As intended by the integrality state, the New Order developed into a totalitarian state,
where the State with his apparatus, particularly the army, controlled over all of the people,
both consciousness and activities. The control of consciousness was examined by an
ideological indoctrination of Pancasila—known as Penataran Penghayatan dan Pengamalan
Pancasila or Eka Prasetya Pancakarsa (or Upgrading of Internalization and Implementation

33

of Pancasila). The control of activities were executed by various operation of intelligence and
political oppression, included kidnapping, torturing, and killing.
New Order regime, however, understood “manunggaling kawulo lan Gusti” not only
in rational sense, but also in mystical sense, which expressed Javanese tradition. Therefore,
New Order used some mystical terms to legitimize several political or constitutional events,
such as Kesaktian Pancasila. Term of “kesaktian” refers to a supernatural or magic power
that gained from divine power. Kesaktian Pancasila is a celebration on October first every
year to remember a victory day of the army against communism. New Order interpreted the
victory of army as a supernatural or magic power of Pancasila in protecting Indonesia.
Those phenomena pointed out that New Order exploited concept of integrality state to
legitimize their interests to maintain hegemony in Indonesia. Culturally, those phenomena
showed that the New Order interpreted the 1945 Constitution based on Javanese traditions.
This was comparable with Soekarno who also used Javanese traditions as a basis for
legitimacy of Guided Democracy. Both Soekarno and Soeharto interpreted Indonesia
constitutional system as a concentric state, where President or Government as a centre of the
State. Soekarno with Guided Democracy interpreted President as the highest national leader
as the center of the State, while Soeharto with Democracy of Pancasila positioned President
and Government—that controlled by army—as a Gusti (or patron) who gives protection for
all the people as a kawulo (or servant) who require protection. This indicates that both
Soekarno and Soeharto interpreted the reconstruction of tradition within the 1945
Constitution based on Javanese traditions.
However, in the end of 1980s, it had been occurred a significant development.
Soeharto tended to exploit Islam as a political legitimacy. The development caused New
Order policy gave benefits politically for Muslim and Islamic law, particularly prevailed of
the Religion Court Law of 7/1989, recognition of Islamic Banking, and establishment of

34

Association of Indonesian Muslim Intellectual (ICMI). That development, obviously, has
shifted a constitutional reference from Javanese to Islamic politics. It also means a paradigm
shift from Javanese to non-Javanese tradition. It also encouraged Islamic traditions as an
antithesis of the concentric Javanese state, which later led to democratization process in
Indonesia—in addition affected by democratization trend at global level. Finally, those
development forced Soeharto to resign on 21 May 1998, which marked formally the end of
the New Order regime after 32 years in power in Indonesia. A reformation era purposed to
eradicate the New Order system and build a democratic state in Indonesia. Among the reform
agendas, the constitutional amendment was a main agenda that aim to create a more
democratic constitution.
In general, both Guided Democracy and New Order interpreted reconstruction of
tradition in the 1945 Constitution based on absolute particular model that emphasized on
originality of tradition absolutely. The tradition was viewed as norms, institutes, and
procedures that different completely from those similar things in modern state. In cultural
context, the interpretation referred to Javanese traditions that emphasize on a concentric state,
which exploited to provide legitimacy for authoritarian practices.

IX.

RECONSTRUCTION OF THE TRADITION AFTER THE CONSTITUTIONAL
AMENDMENT
For four years, the MPR has carried out the constitutional amendment four times,
namely 1999, 2000, 2001 and 2002. In general, the first and the second amendments contain
limitation of Presidential term, reinforcement of the DPR, decentralization, and strengthen of
the human rights. The third and the fourth amendment contain the alteration of government
system, reduction of authority of the MPR, and establishment of some new organs namely

35

tradition (or adat) cannot be separated due to tradition had to be evolved based on Islamic law
(Kusuma, 2002).

VII.

IDEAS ON THE RECONSTRUCTION OF TRADITION AMONG THE
FOUNDING FATHERS
Ideas about the reconstruction of tradition in Indonesia have correlation with growth
of nationalism of Indonesia, which has developed since the early 20 th century and gained its
formation around 1930s. Nationalism of Indonesia was transformed from ethno-nationalism
or

group-nationalism

(groep

nationalisme-Dutch)

toward

Indonesian-nationalism

(Indonesiche nationalisme-Dutch). Ethno-nationalism and group nationalism were began
with the establishment of Boedi Oetomo on May 20th , 1908 and Sarekat Dagang Islam on
February 16th , 1905 (Kartodirdjo, 1997:75-81). Boedi Oetomo was an organization
established by Javanese aristocrats (priyayi) with the purpose of maintaining Javanese
culture.

Meanwhile, Sarekat Dagang Islam was an organization established by Islamic

merchants with the purpose of protecting business among Moslem merchants from
domination of Chinese and European traders (Rambe, 2008).
The Indonesian nationalism politically obtained its formation on October 28 th , 1928
when the Indonesian youth leaders promulgated a political statement called Soempah
Pemoeda. The Soempah Pemoeda contains three declarations that are “one country, one
nation, one language namely Indonesia.”

After this moment, the national movement

transformed from ethno-nationalism to Indonesian-nationalism that had final goal: the
independence of Indonesia (or Indonesia merdeka).

The transformation of nationalism

influenced development of reconstruction of tradition among the founding fathers when they
engaged in constitutional creating process in BPUPKI and PPKI 1945.

18

Generally, there were two perspectives of the reconstruction of tradition that had been
developed among the founding fathers. The first perspective insisted that the reconstruction
of tradition had to emphasize on the originality of tradition and preserve the originality in the
nation-state structure. The second perspective argued that the reconstruction of tradition had
to emphasize on the universal values of tradition so that the traditions could be adapted in the
modern nation state. Those perspectives created two models of reconstruction of tradition in
the Indonesian constitutional law.
The first perspective was expressed in Soepomo who had main role in constitutional
creating of the 1945 Constitution. Soepomo was a professor in Indonesian customary law or
adat law whose background as Javanese aristocrat from Solo or the Kingdom of Kasunanan
Surakarta—the center of Javanese culture in Central Java. As an expert in adat law, Soepomo
had a tendency to support the adat law to be practiced in Indonesia. In his speech on May 31st
1945, Soepomo argued that every state had each peculiarity in related with his history and
characteristics of each society. Consequently, the establishment of Indonesian state had to be
adapted to the social structure of Indonesian society and accorded to the recent times, in
accordance with—in 1945—the ideas of Indonesian state in the Great East Asia environment
(Kusuma, 2004:125).
Soepomo put Western Europe and Eastern Europe as comparisons to show the
peculiarity of each nation state. In his perspective, Western Europe emphasized individualism
and liberalism principles as the basis of Western legal system. Those principles encouraged
people in the Western Europe to look for various ways to grab power and property so that
those spawned imperialism and exploitation system which created disorganized world.
Soepomo insisted to refuse those principles in the establishment of Indonesian state, because
Western people their self suffered humanity crisis due to individualism and liberalism.
Meanwhile, Eastern Europe or Soviet Russia built his state based on dictator-proletariat

19

principle. Perhaps the principle was suitable to their social circumstances, but the principle
contradicted to the original character of Indonesian society.
On the contrary to his argument before, Soepomo referred to German ideology:
national-socialism; and explained:
[Germany] is based on totalitarian ideology; “das Ganze der politischen Einheit des
Volkes” (integration theory). The principle of leader (Führung) as Kernbegriff ein
totaler Führerstaat and also they use the principle of the blood and region equation
(Blut and Boden Theorie) between leader and people … the national-socialist [is]
suitable with Eastern ideology. We know Asian state, namely Dai Nippon is based on
the perpetual unity of soul and body between His Majesty Tennoo Heika, between the
state and the whole Nippon people. Tennoo is the center of the spirit of whole people.
State is based on the family system. Tennoo family namely “Koshitu” is the prime
family. The principle of unity and familial (kekeluargaan) is very appropriate with
character of Indonesian society (Kusuma, 2004:126).

Based on that argument, Soepomo then argued:
The spirituality structure of Indonesian people has characterization and aspires for the
unity of life, the unity between kawulo (people who are protected) and Gusti
(patron/protector) that is the unity between the inside and the outside world, between
macro cosmos and micro cosmos, between people and their leaders. Every human as
an individual, every group in the society and every society in human relations in the
world are viewed to have each place and obligation (dharma) according to natural law
and purposed to harmony materially and spiritually. Human as an individual does not
separate from other individuals or from the outside world, even from the whole of
creature; everything is mixture and interdependent…. This is a totalitarian idea, the
idea of integration of Indonesian nation that manifested in the genuine constitutional
structure (Kusuma, 2004:126).

Soepomo pointed out that the genuine constitutional structure can be found in the
villages in Java, Sumatera, and entire Indonesian archipelago. In those villages, state officials
were the leader who integrated spiritually with their people and they had obligation to
maintain the unity and harmony in the society (Kusuma, 2004:126).
Therefore, Soepomo concluded that the establishment of Indonesian state had to be
arranged based on the peculiarity of Indonesian characters, namely the idea of “negara

20

integralistik” (or integralistic state): where the state were united with all the people, the state
were transcend all of individual and group in any sector. In the integralistic state, there was
no dualism between state and individual; no contradiction between the state and the
individual aspiration; no dualism between “Staat und staatsfreie Gesselschaft”; and
consequently there was no necessary for human rights and freedom (Grund und
Freiheitsrechte) of individual contra state (Kusuma, 2004:127).
However, Soepomo denied that the integralistic state would not recognize the
existence of groups or individuals. Soepomo confirmed that the state recognize the existence
of groups and individuals in society, but every group and individual had to be aware about
their position as the organic part of society. They had obligation to maintain unity and
harmony among every part (Kusuma, 2004: 127).
The concept of the integralistic state had consequences on three issues: the relation
between state and religion, the system of government, and the relation between the state and
the economy. In the first issue, the integralistic state refused the integration between state and
religion. It meant the integralistic state was a secular state. However, the rejection was not
based on secular principle, but more based on position of Indonesia as non-Islamic state.
Conceptually, Soepomo recognized that in there was no separation between religion and state
in Islamic belief. However, Soepomo denied Indonesia was part of Islamic countries or
Corpus Islamicum like Egypt, Iraq, Iran, and Saudi Arabia. In his view, Indonesia was part of
the Great Eastern Asia in companion with Japan, China, Philippine, Thailand, and Burma.
Those countries were not Islamic states. As consequence, Soepomo denied the application of
Islamic law or sharia in Indonesia. However, Soepomo refused that integralistic state was not
religious. The integralistic state remained maintaining moral and ethics, which was suggested
by Islam and other religions. Thus, Soepomo refused to apply Islamic law, but accepted
Islamic values in the form of ethics (Kusuma, 204:129).

21

The Soepomo’s paradigm demonstrated that although majority of population in
Indonesia believe in Islam, geographically Indonesia was not Islamic country. For that
reason, Islam was not the particular characteristics of Indonesian society. Islam was only a
strange element in the Indonesian culture. The fact that Islam was the majority religion
cannot be used as a basis for legitimizing Indonesia as an Islamic state. In his view, if
Indonesia was established as an Islamic state based on the majority population, then
Indonesia would unite with the majority. It was opposed with the unity of the national state.
Besides, it would produce problems of “minderheden” (or minority group), that was problem
of minority groups such as Christian, Buddhism, or Hinduism. Consequently, Indonesian
state had to be separated from religion, particularly Islam, in order to maintain the unity of
the national state (Kusuma, 2004:130).
The rejection of Soepomo against Islamic law essentially expressed his stance as a
professor in adat law who supported the receptie theory—a theory that distinguished and
separated adat law from Islamic law. Additionally, Soepomo had a background as a Javanese
aristocrat (or priyayi) that culturally had a lack of respect to Islamic faith. Politically, the
receptie theory cannot be separated with Dutch legal policy in reducing Islamic political
influence in the Netherlands India. Based on that policy, Islam had to be separated from
politics but at the same time Moslems were provided a privacy to do their Islamic worship
freely (Lukito, ). As the consequence, although Soepomo proposed to reconstruct traditions—
that he called the genuine constitutional structure—in the national state, he denied Islam
traditions to be reconstructed in constitutional structure of Indonesia. The genuine
constitutional structure in his sense was only the adat law, not including the Islamic law.
In correlation to the system of government, Soepomo suggested to reject the Western
democracy that practiced based on individualism. Rejecting Western democracy means
rejecting parliamentary system and a system that considered every human being as nominal

22

numbers. Consequently, Indonesia had to ensure a system of government that continually
united the soul to the people. It means Indonesia had to create a system of consultative body
(badan permusyawaratan). The Head of State would interact continuously with the
Consultative Body in order to know and to feel a sense of justice and ideals of the people.
Soepomo said that the consultative system refers to adat law. In the genuine adat society, the
Head of Village (Kepala Desa) organizes popular will; he gave the formation (Gestaltung) to
sense of people justice. Soepomo related that character with the characteristics of messiah,
which in Indonesia traditions was called Ratu Adil, who eagerly awaited by the people of
Indonesia for a long time (Kusuma, 2004:132).
Finally, in the matter of relationship between the state and the economy, Soepomo
proposed a state socialism that he believed to be a manifestation of the integralistic state. He
described state socialism:
The vital corporations must be controlled by the State … [such as] transportation,
electricity, forestry. So does the land. Essentially, the state also controls all the land.
The vital mining that important for the State must be controlled by the State. Seeing the
nature of Indonesia as an agricultural society, the state must ensure the farm remains
dominated by farmers…. In economy field, the state will be organized based on
principle of brotherhood of family (kekeluargaan) … Mutual help system, cooperative
system must be practiced to be a basis of the economy of Indonesia (Kusuma,
2004:132).

Those opinions above pointed out that Soepomo were more emphasized on
particularity of tradition as a part of Great Eastern tradition that distinguished diametrically
with Western and Islamic traditions. However, Soepomo argued that several similar character
between totalitarian state in Germany and Japanese (before World War II finished) and
integralistic state in Indonesia. Germany was one of the most important countries in Western.
Therefore, Soepomo actually did not reject completely Western traditions, but he refused the
Western liberal democratic system only. In this context, Soepomo used totalitarian ideology
to legitimize and point out that peculiarity of tradition in Indonesia was appropriate with the
23

modern times. In relation with Islam, Soepomo also did not deny Islamic religion in
complete. He denied Islam in its form as Islamic state, but he accepted Islam as ethics. His
rejection was based on geographic ground to show that Indonesia had peculiar tradition that
distinct from Islamic tradition. However, Soepomo argued that the reconstruction of tradition
in the modern state of Indonesia had to be based on the genuine constitutional structure of
Indonesian society that he formulated as the integralistic state.
The second perspective was represented by Soekarno, Mohammad Hatta and
Muhammad Yamin. Soekarno was a prominent nationalist leader and the first President of
Indonesia whose background as Javanese aristocrat. Muhammad Hatta was the vice President
of Indonesia who was famous as the founder of Indonesian economy system. Hatta and
Yamin came from Minangkabau at West Sumatra, which well-known as one of region that
produced many prominent national figures in Indonesia. Soekarno and Mohammad Hatta
proclaimed the proclamation of Indonesia on August 17th 1945. They both represented the
two major traditions in Indonesia—Javanese and Sumatra or non-Javanese—was known as
“dwi tunggal” (two in one). Like Hatta, Muhammad Yamin also came from Minangkabau
West Sumatra. He was actually a lawyer, but he was interested in history and written many
books in history and literature.
Although Soekarno and Soepomo had the same background as Javanese aristocrats,
Soekarno had more democratic view than Soepomo. On the contrary to Soepomo, Soekarno
rejected Western democracy, but he did not accept totalitarian ideology. Consequently,
Soekarno denied both Western European parliamentary and American presidential that he
believed as instrument of capitalist. Soekarno suggested a politiek economische democratie or
politic-economy

democracy

that

is

a

politic-democracy

with

social

justice

(socialerechtvaardigheid), a democracy with prosperity, a socio-democracy. Soekarno related
his concept with a belief of messianic or Ratu Adil amongst the people. He interpreted

24

messianic as an expectation about social justice. Therefore, Indonesia had to accept social
justice principle, which guaranteed not only equality in political field, but also in economy
field in the sense a general welfare. Thus, Indonesia had to institute a constitutional structure
that represented democracy in both politic and economy (Kusuma, 2004:162-164).
Particularly, Soekarno proposed Pancasila—means “the five principles”, which was
finally accepted by all of the founders as a fundament of the state. Soekarno called Pancasila
as a Weltanschauung (or a world view) and a philosofische grondslag (or a fundamental
philosophy). Pancasila contained five principles that are nationality of Indonesia,
internationalism or humanism, consensus or democracy, social welfare, and monotheism.
Then Soekarno squeezed Pancasila into three principles: socio-nationalism, socio-democracy,
and monotheism. Finally, Pancasila pressed those principles into one principle that is the
gotong royong or the mutual assistance. For Soekarno, the gotong royong was a dynamic
collectivism that represented an authentic tradition of Indonesian people (Kusuma,
2004:165).
Related with Islam, Soekarno had an opinion that Moslems in Indonesia had to use
permusyawaratan or deliberation process as the way to express their interests and aspirations
in law or statutes. If Moslems wanted to practice Islamic law in Indonesia, they must effort in
deliberation process in legislature so that every law created by legislature will reflect Islamic
law. So do the Christian, Buddhists, or Hindus, they have to struggle by deliberation process
in legislature to create law based on their interest (Kusuma, 2004:161).
Those descriptions above point out that Soekarno has inclusive and dynamic view
concerning with traditions. He viewed that tradition had to be adjusted with the modern
democracy. However, he denied liberal democracy and believed that he could only give
equality in politic and created disparity in economy. Therefore, he proposed democracy with
social justice that he considered as an authentic people aspiration.

25

Muhammad Hatta has a similar position with Soekarno. Hatta also opposed
individualism and proposed collectivism as a basis of the state. He described collectivism as
gotong royong (or mutual assistance) and usaha bersama (or common endeavor). However,
Hatta disapproved of Soepomo about totalitarian or integrality state notion. He worried that
Indonesia would develop into a totalitarian state as practiced in Russia and Germany. Hatta
confirmed that collectivism gave people freedom and right to express his opinion. He defined
that collectivism will create “the caring state” (or negara pengurus), not the repressive state
(Kusuma, 2004:355).
Structurally, Hatta connected collectivism with the representation of collective bodies
in the People’s Consultative Assembly (MPR). According to proposal of constitution, the
MPR has three representations, which are the members of the House of Representatives
(DPR), representatives of regional, and representatives of functional groups. Hatta confirmed
that the representatives of functional groups are the manifestation of social collectivism
(Kusuma, 2004:405).
In a paper in 1932, Hatta argued that the original democracy in Indonesia should refer
to “demokrasi desa” (or village democracy). The original democracy should be revived, not
in the old-fashioned, but in a more advanced in accordance with modern time. Desa
democracy should be extended on a scale of the state and must be adapted to the development
of civilization. Hatta identified three characters of genuine democracy that practiced in
villages: First, the idea of assembly as a place for people or community to deliberate and
make consensus based on collective interest. Actually, this is a basis of people representative
government. Second, the idea of mass protests specifically a right to rebut any injustice law.
The idea includes right and freedom to move and association. Third, the idea of cooperation,
which is stored a basic for cooperative in economy. This means that people in Indonesia
establish a rather large company based on common endeavor or joint venture principle.

26

Likewise, the control of land based on collectivism that mentioned as the right of ulayat. The
right of ulayat is a collective right to control land tenure in village (Hatta, 1977:42-43).
Meanwhile Muhammad Yamin in his notes gave some opinion about traditions that
sourced from Islamic law and adat law. He proposed deliberation (or permusyawaratan) as
tradition of Islamic law and consensus (or mufakat) that he viewed as adat law. He also
suggested representatives (or perwakilan) as a kind of adat law and wisdom (or
kebijaksanaan) that he identified as rationalism (Kusuma, 2004:98). Particularly, he proposed
a sharia government that represented in the authority of Supreme Court to review statute
against the constitution, the recognized adat law, and Islamic law or sharia (Kusuma,
2004:98, 385).
Generally, Soekarno, Hatta, and Yamin have a similar position in their opinion about
the reconstruction of tradition. They believe Indonesia had to be established based on the
genuine tradition of Indonesian society, but the tradition should be adjusted with the modern
democracy. However, democracy that was suitable with Indonesian tradition is democracy
with social justice, a democracy based on collectivism, which is reflected in deliberation
(permusyawaratan) and representative system. This concept is expressed in the fourth
principle of Pancasila: “democratic life led by wisdom of thoughts in deliberation/
representatives.”
There is a basic position for Soekarno, Hatta and Yamin to view tradition of
Indonesian society having a rational character so that it could be adapted to modern
democracy. Deliberation is a rationality process, so that deliberation gives a rational basis for
democracy. There is no contradiction between tradition of deliberation in Indonesia and the
modern democracy because both of them have rationality character. Likewise, the idea of
social justice, which thought by Soekarno referred to the messianic or Ratu Adil as a myth
that believed to realize a social justice, but the founders considered the idea of social justice

27

in a modern sense as a system of democracy to give equality in economy and general
prosperity.
Soekarno, Hatta, and Yamin believed that the reconstruction of tradition had function
to maintain a certainty for people to reach their purpose to realize social justice. Refers to
Popper, there was a reason to reconstruct the tradition to maintain social regularity that
created by tradition during centuries. In the other sense, there is a belief that solely western
democracy cannot ensure Indonesia to get social justice, even Indonesia will fall into
destruction. Therefore, the Indonesian founders chose to reconstruct the tradition into the
constitution to ensure Indonesia could be realized social justice for all people.
Contestation between two paradigms—that are absolute and relative particular—in
the constitutional creating finally result a compromise in a constitution:

the 1945

Constitution. There are several points of the compromise that related with reconstruction of
tradition. Generally, the founders accepted Pancasila as the basic of the state of Indonesia.
Pancasila consists of five principles: monotheism, universal humanism, nationalism of
Indonesia, deliberative and representative democracy, and social justice. The founders
believed that Pancasila is a kind of reconstruction of tradition that has been adapted to
modern state structure. The founders agreed to use republic as form of the state. It confirmed
that the founders refused monarchy as an expression of feudalism. In contrast, they accepted
republic as a continuity of democracy that practiced in villages (or desa).
Particularly, the founders accepted deliberation (or permusyawaratan) as a tradition
that should be adjusted with the modern state. Deliberation should be practiced with
rationalism or wisdom based on principle of people representatives. Deliberation is reflected
structurally in the form of People’s Consultative Assembly (MPR), which represents
collectively all the people of Indonesia so that principally MPR conducts the completely
popular sovereignty. MPR has authority to make a state planning guideline (GBHN) as

28

instrument of collectivism in economy to achieve social justice for all the people of
Indonesia. Meanwhile, the founders enacted the constitutional provisions to preserve adat law
and native structure that practiced in several regions and villages in the entire of Indonesia.
Those included preservation of monarchy that until today practiced in Province of
Yogyakarta and various native villages such as desa in Java, nagari in Minangkabau-West
Sumatra, gampong in Aceh, dusun and marga in South Sumatra, huta and kuria in TapanuliNorth Sumatra (Kusuma, 2004: 359-370).

VIII.

DEVELOPMENT OF THE RECONSTRUCTION OF TRADITION BEFORE THE
CONSTITUTIONAL AMENDMENT
Practically, the ideas of reconstruction of tradition had created two authoritarian
regimes that occured during the Guided Democracy and the New Order eras. However, the
same idea also created a democratic system during the parliamentary government. In fact,
authoritarian regimes were evolved after the 1945 Constitution reapplied on 5 July 1959.
Meanwhile, democratic regime was occured under the Provisional Constitution during 1950s.
Those facts made an understanding that the reconstruction of tradition in the 1945
Constitution was interpreted based on authoritarian sense. Moreover, democratic practice
during the parliamentary era was also viewed as an expression of liberal democracy that
contradicted with the genuine democracy of Indonesia.
The following section will describe development of the reconstruction of tradition that
practiced in those regimes: the parliamentary democracy, the Guided Democracy, and the
New Order.
Firstly, the parliamentary democracy was actually established since 14 November
1945 when the members of parliament made a convention that applied the parliamentary
system under the 1945 Constitution which apply the presidential cabinet. After the

29

influence from foreign legal system intentionally, such as Japan got influence from Germany
legal system based on government policy. Some other countries receive foreign influences
by coercion due to colonialism, occupation, or the other ways. The foreign legal system also
influences several countries due to needs in economy or business relations. In globalization
era, it is difficult to find a national legal system with ‘pure national identity’ because the
growth of information and communication technology that creates every state relatively
opened and transparent. Meanwhile, modernization, which is often identified as
westernization, causes some countries establish their national legal system following the
modern western legal system.
Nevertheless, national identity remains a fundamental reference to establish the
national legal system. Although it receives foreign influences,