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]

Bahasa