Abusive Unconstitutional Constitutional Amendments: Indonesia, the Pancasila and the Spectre of Authoritarianism

Ignatius Yordan Nugraha

Oxford Journal of Legal Studies, 2023, vol. 43, issue 2, 379-404

Abstract: This article explores how an unconstitutional constitutional amendments doctrine could be abused to advance an illiberal or even authoritarian agenda, with Indonesia as a case study. In Indonesia, there is a pervasive belief that the five fundamental principles of the state (the Pancasila) are the ‘basic norm’ of the Indonesian legal order. Based on this understanding, it has been argued that all positive laws, including constitutional amendments, must be consistent with the Pancasila. At the same time, there is a danger lurking behind this idea. The four amendments to the 1945 Constitution, which have ushered in a new era of democracy, have been claimed to be repugnant to the Pancasila. Consequently, a future authoritarian president could invoke this doctrine to revert to the original 1945 Constitution, which has enabled two authoritarian regimes in the past. Nevertheless, this threat could be minimised by applying the concepts of constituent and constituted powers.

Keywords: constitutional amendment; unconstitutional constitutional amendments; basic norm; Grundnorm; unamendability; Indonesia (search for similar items in EconPapers)
Date: 2023
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Persistent link: https://EconPapers.repec.org/RePEc:oup:oxjlsj:v:43:y:2023:i:2:p:379-404.

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