The Indonesian Constitution: For Whom the Bell Tolls (2)

The 1945 Constitution of the Republic of Indonesia (Undang-Undang Dasar 1945, hereafter UUD 1945) establishes a comprehensive legal and normative framework governing the obligations of the state towards its citizens. The Constitution articulates both philosophical and operational mandates, which encompass protection, welfare, education, justice, and environmental stewardship. These mandates are codified in both the Preamble and the substantive provisions of the Constitution, providing the basis for assessing state accountability and governance.

The Preamble of the UUD 1945 asserts four foundational goals for the Indonesian state: firstly, to protect all the people of Indonesia and the entirety of its territory; secondly, to advance the general welfare; thirdly, to educate the nation; and fourthly, to participate in the establishment of a world order based on freedom, lasting peace, and social justice. These precepts serve as guiding principles for state institutions, suggesting that governmental action should prioritise collective well-being over individual or elite interests.

Protection of the citizenry is further elaborated in the Constitution’s provisions on human rights. Article 28H guarantees the right to life, freedom of belief, freedom of expression, and access to information, while Article 28I establishes equality before the law and the protection of civil liberties. The state is therefore constitutionally mandated to ensure not only physical security but also legal and social protection, preventing arbitrariness in governance and safeguarding against structural inequalities (UUD 1945, Arts. 28H–28I).

Economic and social welfare obligations are articulated in Articles 27, 33, and 34. Article 27(2) establishes the right of every citizen to employment and a decent livelihood. Article 33 requires the state to control sectors vital to the public interest and to manage natural resources for the greatest prosperity of the people. Article 34 mandates the maintenance of the poor and neglected, as well as the provision of social security. Collectively, these provisions frame the state as a guarantor of economic justice and social equity, ensuring that economic development serves the broader population rather than concentrated interests (UUD 1945, Arts. 27, 33, 34).

The constitutional commitment to education is articulated in Article 31, which obliges the state to provide free basic education and promote the advancement of science and technology. Education is thus codified as both a fundamental right and a public responsibility, essential for the cultivation of an informed and competent citizenry capable of contributing to national development (UUD 1945, Art. 31).

The principle of the rechtsstaat, or state based on law, is entrenched in Article 1(3), which stipulates that Indonesia is a state governed by law. This principle imposes limitations on executive discretion, requiring transparency, accountability, and adherence to due process. It necessitates independent judicial oversight, checks and balances among state organs, and the prohibition of nepotism, corruption, and arbitrary actions (UUD 1945, Art. 1(3)).

Environmental obligations, though less explicitly elaborated, are implicit in Articles 28H(1) and 33(4), which guarantee the right to a good and healthy environment and mandate the state to manage natural resources responsibly. In practice, this constitutes a constitutional duty to prevent environmental degradation and ensure sustainable development for current and future generations (UUD 1945, Arts. 28H(1), 33(4)).

Finally, the Preamble’s emphasis on contributing to a just and peaceful world order reflects the state’s obligation to conduct foreign policy consistent with international law, peace, and justice. Indonesia is therefore required to pursue a “free and active” foreign policy that upholds human rights, independence of oppressed nations, and global equity (UUD 1945, Preamble).

In conclusion, the UUD 1945 articulates a multi-dimensional framework of obligations for the Indonesian government. These obligations extend across the domains of protection, welfare, education, justice, environmental stewardship, and international engagement. By codifying these duties, the Constitution establishes the normative and legal basis for evaluating state performance, offering clear criteria for accountability and governance within the Indonesian context.

In the wake of the Indonesian Parliament’s enactment of the revised Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana, commonly referred to as KUHAP) in late 2025, a number of civil society organisations, human rights advocates, and legal scholars have voiced robust criticism, arguing that the reform represents not a strengthening of justice, but a troubling regression. To its critics, the revision appears rushed and insufficiently scrutinsed, with serious implications for fundamental protections within the criminal justice system. 

One of the core concerns raised by civil society coalitions is that the new KUHAP confers excessively broad powers on law enforcement agencies, particularly the police, without adequate external oversight or safeguards to prevent arbitrary exercise of authority. Under the revised law, police and investigators may undertake investigative measures that were previously restricted or subject to stricter judicial review, such as undercover operations, controlled deliveries, and expanded arrest and detention powers. Critics fear these expanded powers could facilitate entrapment or even the fabrication of crimes, undermining the protection against arbitrary state action that is fundamental to a fair criminal procedure.

Human rights organisations, including Amnesty International Indonesia, have also expressed profound concerns about the procedural dimensions of the revision. They argue that the new KUHAP permits arrest and detention without prior judicial authorisation, and restricts access to legal aid by linking it to the severity of an alleged offence. According to these critics, such provisions risk eroding guarantees of fair trial and due process, potentially leaving individuals vulnerable to prolonged detention or arbitrary deprivation of liberty. The drafting process itself, they insist, lacked transparency and meaningful public participation, with the final text posted shortly before its ratification. 

Legal experts have further highlighted that certain essential mechanisms for judicial supervision remain weak or unclear in the new law. Although coercive measures such as arrest, search, and seizure are codified, the corresponding safeguards — particularly prior review by an impartial judge — are seen as insufficiently robust. This, they warn, could exacerbate long-standing issues with arbitrary detention that have historically plagued the Indonesian justice system. 

Underlying many of these critiques is a broader fear that the combined application of the new KUHAP alongside the recently implemented Criminal Code (Kitab Undang-Undang Hukum Pidana) could create a legal environment in which civil liberties are disproportionately curtailed and the balance of power between the state and citizens is tilted in favour of law enforcement authority. Observers suggest that instead of addressing democratic reforms and human rights commitments, the revisions may inadvertently facilitate an expansion of state power at the expense of individual rights. 

The criticisms levelled against the revised Criminal Procedure Code (KUHAP) gain particular constitutional significance when examined through the lens of Indonesia’s amended 1945 Constitution, which explicitly positions the state as a constitutional democracy founded upon the rule of law (negara hukum). Article 1 paragraph (3) of the Constitution affirms that Indonesia is a state governed by law, not by mere power, thereby requiring that all exercises of state authority, especially in criminal justice, be subject to clear legal limits, accountability, and judicial control. Critics argue that provisions of the new KUHAP which expand investigative and coercive powers without robust judicial oversight risk undermining this foundational principle by shifting the balance from legal restraint toward discretionary authority.

From a human rights perspective, the objections to the new KUHAP are closely connected to Article 28D paragraph (1) of the Constitution, which guarantees the right of every person to recognition, guarantees, protection, and legal certainty that is just, as well as equal treatment before the law. Civil society groups contend that permitting arrest and detention without prior judicial authorisation, or conditioning access to legal counsel on the severity of an alleged offence, weakens legal certainty and equality before the law. Such arrangements, they argue, create a procedural hierarchy in which some individuals enjoy fuller protection than others, contrary to the Constitution’s promise of equal justice.

Furthermore, Article 28G paragraph (1) of the Constitution explicitly safeguards the right to personal security, including protection from arbitrary arrest, detention, and coercion. In this context, critics maintain that expanded police powers without corresponding safeguards increase the risk of arbitrary deprivation of liberty. The absence of strong, independent, and prompt judicial review mechanisms is viewed as inconsistent with the constitutional obligation to protect individuals from excessive state intrusion into their personal freedom.

Concerns regarding due process are also constitutionally grounded in Article 28I paragraph (4), which places responsibility on the state, particularly the government, to protect, promote, enforce, and fulfil human rights. From this standpoint, procedural law such as KUHAP is not merely a technical instrument of law enforcement, but a constitutional tool through which the state demonstrates its commitment to human dignity and justice. Critics argue that a criminal procedure framework which prioritises efficiency and enforcement over safeguards and participation risks violating this affirmative constitutional duty.

Finally, the manner in which the revised KUHAP was drafted and enacted has been criticised as falling short of the constitutional ideal of fair and democratic governance. Article 28C paragraph (2) guarantees the right of citizens to participate in government and public affairs. The limited transparency and constrained public participation reported during the legislative process are therefore seen not only as political shortcomings, but as constitutional deficiencies that weaken democratic legitimacy.

In sum, critics do not merely oppose the revised KUHAP on policy grounds, but interpret it as raising serious constitutional questions. They argue that unless criminal procedure law is firmly anchored in the principles of the rule of law, human rights protection, and accountable governance as mandated by the amended 1945 Constitution, it risks transforming legal process into an instrument of power rather than a safeguard of justice.

After all the constitutional promises, lofty declarations of the rule of law, and solemn commitments to human rights, one question stubbornly remains and refuses to be silenced: for whom, exactly, is this revised Criminal Procedure Code being prepared? Is it designed to protect ordinary citizens navigating the justice system with limited resources, limited knowledge, and very real fears of arbitrary power, or is it crafted to make life more convenient for institutions that already command authority, uniforms, and discretion? When procedural safeguards are softened, judicial oversight diluted, and participation narrowed in the name of efficiency, it becomes reasonable to ask whether the law still serves justice or merely streamlines control. If the Constitution is meant to restrain power, yet the procedural law quietly expands it, then the real issue is not technical drafting but political intent. In the end, the question is disarmingly simple but constitutionally explosive: is this KUHAP being written for the people promised protection by the Constitution, or for those who would rather be protected from the people? In short, who was this law prepared for?

[Part 1]

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The Indonesian Constitution: For Whom the Bell Tolls (1)

In John Donne's poignant seventeenth meditation from Devotions Upon Emergent Occasions (1624), the tolling funeral bell becomes a stark metaphor for humanity's interconnected fragility, declaring that no man is an island and every death diminishes us all, a reflection born from the poet's brush with mortality. Ernest Hemingway seized this timeless resonance as the epigraph for his 1940 novel For Whom the Bell Tolls, set against the Spanish Civil War's carnage, where protagonist Robert Jordan's sacrificial bridge demolition embodies collective fate over individual survival, transforming Donne's theological solace into a visceral anti-war lament. This literary bridge—from Elizabethan prose to modernist grit—invites scrutiny of modern constitutions like Indonesia's 1945 charter: for whom does this foundational tool toll, safeguarding the people's sovereignty as proclaimed in its Pancasila preamble, or merely amplifying elite power through successive amendments?

A constitution, in the most fundamental theoretical sense, is the set of principles that gives a political community its identity, coherence, and limits. It is not merely a document but a conceptual framework that determines how power is acquired, exercised, and restrained within a society. Political theorists often describe a constitution as the moral and structural foundation upon which the authority of the state rests, shaping the relationship between rulers and the ruled. At its core, a constitution expresses the collective agreement—explicit or implicit—about what a political order should protect, how it should function, and what values it should uphold. It stands as both an enabling force that grants institutions the legitimacy to act, and a restraining force that prevents them from acting arbitrarily. In this sense, a constitution is simultaneously a blueprint, a boundary, and a reflection of a society’s deepest convictions about justice, authority, and the common good.

Modern Constitutions by K.C. Wheare is a classic and influential book on constitutional law that seeks to explain both what a constitution is and why the idea of a constitution matters in modern states. The original edition of the book was published in 1951 by Oxford University Press, and subsequent revised editions appeared through the 1960s, including a notable second edition in 1966 also from Oxford University Press.

Wheare begins by defining what a constitution actually is. He explains that in its broadest sense, a constitution refers to the entire system of government in a state — the total collection of rules, practices, conventions, and laws by which the governing authority is organised and exercised. In a narrower sense, he notes that the constitution can mean specifically the legal rules that are usually written down in a single document or a closely related set of documents. These foundational discussions show that Wheare is not merely cataloguing existing constitutions, but rather setting out conceptually why constitutional arrangements are fundamental to modern political life.

Wheare’s work goes further to explain that the constitution’s purpose is to structure and regulate political power in a way that a society recognises as legitimate. He emphasises that a constitution should contain at least certain minimum essential elements — especially the rule of law — and that by establishing the basic organisation of authority and the relationships between institutions and citizens, a constitution helps to secure order, accountability, and continuity in governance. Such arguments underscore not only what constitutions are, but also why they are necessary for stable and modern governance.

According to Wheare, a constitution is required for stable and modern government because it provides a recognised and authoritative framework within which political power is organised, limited, and exercised. Wheare argues that without a constitution, government would rely excessively on personal authority, temporary arrangements, or arbitrary decisions, all of which undermine long-term stability and public confidence.

Wheare explains that a modern state inevitably involves complex institutions, such as legislatures, executives, courts, and administrative bodies, whose powers must be clearly defined and coordinated. A constitution performs this task by setting out the structure of government and the relationships between its organs, thereby reducing uncertainty and conflict. In this sense, constitutional rules make government predictable, which is essential for political stability in modern societies.

He further maintains that a constitution is necessary to ensure that power is exercised according to the rule of law rather than personal will. By establishing legal limits on authority and procedures for decision-making, the constitution helps prevent the concentration and abuse of power. For Wheare, this legal restraint is not merely moral or symbolic, but a practical requirement for maintaining order and legitimacy in a modern political system.

Wheare also emphasises that constitutions provide continuity in government despite changes in leaders or political majorities. In modern states, political change is inevitable, but constitutional rules ensure that such change occurs within an accepted framework. This continuity allows citizens to trust that the government will remain stable even when policies or office-holders change.

Finally, Wheare sees the constitution as a foundation for political consent. Because a constitution defines how authority is gained, exercised, and transferred, it enables citizens to understand and accept the system of government under which they live. For Wheare, this shared acceptance explains why constitutions are indispensable to stable and modern governance.

In theoretical terms, a law, or statute, is a formal expression of political authority that translates abstract constitutional principles into concrete rules governing social life. It represents the mechanism through which the state operationalises its power, turning general values and goals into enforceable norms. Legal theorists often understand law as a bridge between political will and everyday conduct, mediating between what a society aspires to and how its members are expected to behave. Unlike the constitution, which defines the architecture of power, legislation works within that architecture to address specific problems, regulate particular fields, and respond to changing social conditions. A law therefore, embodies both authority and contingency: it carries the force of the state, yet remains open to revision, debate, and repeal as political priorities and social realities evolve.

The difference between a constitution and ordinary legislation lies primarily in their level of authority, purpose, and permanence within a legal system. A constitution functions as the supreme legal framework of a political community, establishing the basic structure of the state, defining the distribution of powers, and articulating the fundamental rights that limit governmental authority. Ordinary laws, by contrast, operate within the boundaries set by the constitution and are designed to regulate specific matters of policy, administration, or social conduct. While legislation can be amended, replaced, or repealed through routine political procedures, a constitution is intentionally more difficult to change, reflecting its role as a long-term expression of a society’s foundational values. In theoretical terms, legislation answers the question of how the state acts in particular situations, whereas the constitution answers the deeper question of why the state may act at all.

Laws, or undang-undang in the Indonesian context, fundamentally exist to maintain social order, establish standards of acceptable behaviour, resolve disputes, and protect individual rights and liberties within a society. They serve as a binding framework created primarily by legislative bodies, such as parliaments or the Dewan Perwakilan Rakyat (DPR) in Indonesia in collaboration with the executive branch like the President, to regulate conduct, ensure justice, and facilitate harmonious coexistence among citizens, government, and private entities. Ultimately, laws embody societal values and evolve to address collective needs, acting not just as rules but as instruments for achieving broader goals like equity and stability.

Laws in human societies originated from unwritten customs and traditions that emerged millennia ago to regulate communal life, resolve conflicts, and uphold moral order, predating formal codification by thousands of years in civilisations such as ancient Sumeria around 2100 BC with the Code of Ur-Nammu. In the Indonesian archipelago, these unwritten laws manifested as hukum adat, deeply rooted in pre-Hindu eras through ancestral practices, kinship ties, and local rituals that communities observed organically to foster harmony and reciprocity long before external influences arrived. Written laws arose later, influenced by Hindu-Buddhist kingdoms from the 5th century AD, Islamic sultanates in the 13th century, and colonial impositions, but in modern Indonesia, they crystallised with the formation of the Undang-Undang Dasar 1945, drafted by the BPUPKI from May to July 1945 amid the push for independence from Japanese occupation, and formally promulgated by the PPKI on 18 August 1945 to establish a sovereign constitutional framework.

The 1945 Constitution of Indonesia emerged from a confluence of intense social and political pressures during the final stages of World War II, driven primarily by the urgent quest for national independence amid the collapse of Japanese colonial rule. Socially, decades of Dutch exploitation had fostered widespread resentment among Indonesia's diverse ethnic groups, fuelling a burgeoning nationalist consciousness that transcended regional divides and unified intellectuals, youth movements, and traditional elites around shared aspirations for self-determination and social justice. Politically, the Japanese occupation from 1942 to 1945 created a power vacuum after their surrender in August 1945, prompting leaders like Sukarno and Hatta to accelerate constitutional drafting through bodies such as the BPUPKI, as the Allied forces threatened reimposition of colonial control and revolutionary fervour risked descending into anarchy without a unifying legal framework.

These factors necessitated a concise document embodying Pancasila as the ideological core, balancing unitary statehood with democratic ideals to consolidate disparate social forces and legitimise the republic against external challenges.

If we read the 1945 Constitution through the eyes of a “+56 netizen” who has just finished binge-watching political drama on Twitter, the message is actually crystal clear. The Constitution is essentially saying: “Dear government, your job is not merely cutting ribbons, posting smiling photos on Instagram, or inventing catchy three-word slogans. Your task is heavy, my dear—like a thesis that never quite gets finished.”

The Preamble of the 1945 Constitution sets the tone from the very beginning: the state is obliged to protect the entire Indonesian nation and all its territory. In netizen language, this means not only looking after those who happen to be in the extended family WhatsApp groups of officials, but also protecting those who are flooded out every year, suddenly laid off from work, or targeted by petty crackdowns. Protection must not be selective; it is not “those who pay taxes get protection, those who protest get ignored.”

Then comes the mandate to advance the general welfare. This means the state must ensure that people live decently, not like kites blown about by the wind. It certainly does not mean “general welfare, but the oligarchs go first, the people can wait.” This constitutional mandate ought to make officials think twice before signing projects whose benefits are unclear, while the instalments are conveniently charged to the public.

The next mandate is to educate the nation. This does not mean holding endless speech contests and ceremonial seminars every month. “Educating the nation” means affordable education, dignified livelihoods for teachers, children not having to borrow money just to buy school uniforms, and internet access that does not collapse every time the clouds gather. After all, how can a nation be intelligent if even its Wi-Fi is insecure?

The Constitution also requires the state to participate in creating a world order based on freedom, lasting peace, and social justice. In other words, it is not enough to be visibly active at international conferences, smiling for the cameras. The state must also stand firmly in defence of the oppressed, rather than obsessing over finding the most flattering photographic angle.

When we move into the articles themselves, Indonesia is defined as a state governed by law, not a state governed by “we know each other anyway.” This means that officials are also subject to the law, not only ordinary citizens without connections at the top. If the rule of law were genuinely applied, there would be no more phrases like, “Anyone can be investigated… except this one, and this one, and that one.” Simply put, if the law were a train, everyone would have to buy a ticket—there would be no VIP carriage.

The Constitution also declares that natural resources must be managed for the greatest prosperity of the people. Yet in pop-culture reality, this often sounds more like: “Forests for the people, but first let us check which family company those people belong to.” The 1945 Constitution is not fan fiction; it is a binding contract. When it says “for the prosperity of the people,” it means real people, not “the people as defined in a board meeting.”

There is more still: the state is obliged to care for the poor and neglected children. This means the state is not allowed to turn poverty into content for vlogs and then walk away without solutions. The Constitution never says, “The poor must be cared for… if there is any budget left.” There is no such footnote.

And of course, the people have the right to a good and healthy environment. In pop-culture terms, the state must not pretend not to notice when mountains are shaved bald, rivers turn chocolate brown, or the air begins to smell like “fried snacks with a hint of pollution.” The environment is not an optional downloadable add-on; it is a core feature of the game of life.

Finally, the relationship between the state and the people resembles that between an idol and their fans. The fans have paid, supported, and remained loyal; all that remains is for the idol not to betray them. The Constitution has already written the script: protect the people, ensure their welfare, educate them, uphold justice, avoid corruption, avoid nepotism, and do not play games. Follow the script and the state may trend positively. Ignore it, and be prepared for savage reviews from 280 million critics.

In other words, the Constitution has already provided a complete tutorial. The problem is not the tutorial itself—it is who actually reads it, and who chooses to skip the introduction.

[Part 2]

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