The Presidency & the Post
Of the several pleasures that have attended working with PUSaKO, one of the more surprising was the opportunity to be published in the Jakarta Post. The image above is the top half of the article as it appeared in the print edition, and a PDF of the full text is available here. It was co-written with Ari Wirya Dinata, my most frequent contact in Sumatra. I had heard from previous interns that one may end up published there, but I was not expecting to reach the print edition, as I did not ask after this. It's an odd thought, that one's visage and thoughts are circulating in the remote city of Jakarta and beyond, to consternation or approval, or to serve as some expedient shade for an afternoon nap, or as a bird cage liner. While I had spent some time as a theater critic in Los Angeles, this was my first time being published in any newspaper of truly significant circulation.
The subject matter pertained to term limits for the President under the Indonesian Constitution. The 1945 Constitution of Indonesia was highly provisional, and was replaced, and restored under comparably provisional circumstances. Any truly reasonable hermeneutic would have construed an intent of a two-term limit for the President even under that original text, but it does fall short of naming such a limit under a literal hermeneutic. Indonesia's first two Presidents had exceedingly long administrations marked by corruption and massive loss of life. Since the Reformasi from 1998-2002, there have been only four elections under the revised 1945 Constitution. Already, the relative popularity of the current administration has various factions recommending an abrogation of the recently achieved constitutional term limits.
President Jokowi himself has denied interest in running for a third term even if the Constitution were amended, but his coalition government represents an 81% majority, and so possesses a sufficient supermajority to amend the constitution almost effortlessly.
In response, I spoke of the traditional virtues expected to be instilled by the respecting of institutional norms, whether aging or burgeoning, and the effect this would have on the preservation of the principles of Pancasila, which is an Indonesian concept pertaining to the principles of moral governance. I posited that it ought to be uncontroversial to pass an additional Constitutional amendment to absolutely entrench Presidential term limits from future amendment, given the propensity of Indonesian democracy to create supermajorities. Absolute entrenchment appears in the US Constitution to protect the slave trade for the first twenty years of the Republic, and the equal representation of states in the Senate. Though, the slave trade entrenchment provision is itself entrenched, while the equal representation entrenchment is not. The Indonesian Constitution also features entrenchment of its status as a unitary rather than a federal republic, almost certainly as a direct response to the attempted Dutch imposition of the constitution of the United States of Indonesia. That entrenchment is not itself entrenched, either.
Though, like all Constitutional language, Gödel could likely take a look at these provisions and figure out a surprising construction that could function in a range of ways, as he once did with the US Constitution, though his inference is lost to time. If an entrenched provision can be abrogated by the abrogation of the entrenchment, could an entrenched entrenchment be abrogated in the same manner? Would this even take one additional step or could a single amendment first abrogate the entrenchment of the entrenchment, then the entrenchment, and then the provision? What safeguards would any state have against an amendment so written? If that amendment had such a compelling popular assent as an 81% coalition commands, would any countermeasures have the popular support to succeed?
I had the opportunity to research the Indonesian Constitution in comparison to the Phillippines and South Africa while revising a proposal by PUSaKO for International IDEA, and took the opportunity to personally read somewhat into Malaysia and Brunei. This work required me to read a book by Tom Ginsburg on methodologies for the assessment of constitutional performance, which was a fascinating read. Yet the book itself, as any good assessment of methodology would, was highly explicit about the epistemic limitations and the total admissibility of a such a system of analysis. International IDEA developed and improved this methodology even further, and it is, in fact, an impressive and reasonably good method of thinking about the question of constitutional performance.
Yet, it caused me to meditate in retrospect upon this article, and in the context of the several constitutional systems that have been written and executed and abrogated and amended and replaced in the neo-colonial period. We can write an entrenchment, or a Constitution, but if we wish for it to have more utility than a fish wrap, it has to not only be responsive to hyperlocal conditions and circumstances (hopefully ones that comport well enough with the international community for successful comity), but also must be relatively representative of the people's metaphorical comprehensions of the State and of the collective project of their civilization. In cognitive linguistics, we have long said that all cognition is a form of metaphor, and that many conceptual metaphors underly our language itself and the way we think about that language.
So, in the business of states where we must seem very institutionally legitimate and stable and ironclad, et cetera, it's easy to forget that a Constitution is not a constitution. 'Constitution' is a dead metaphor. We sometimes speak of aspirational constitutions that describe values they would like to achieve, but this is somewhat redundant. All Constitutions aspire to achieve being fairly conceptually representative of the way the people in all their multitudes conceive of the state. All constitutions are aspirational of the values they espouse, and all Constitutions are metaphors for the true constitution of any nation, which is made up of its people and officers, infrastructure, the collective confidence of the electorate, its responsiveness to situations that arise, the way it is publicly represented, the consistency of its officials in the execution of the concepts of that constitution, and the material effects of that execution, its media and culture, its successes and embarassments, its administrative state's effects on the daily lives of people, et cetera, et cetera.
I say this because I myself, in the co-writing of this article, sought to recommend a Constitutional provision responsive to roughly effective norms that have been observed in other states, even though the state of affairs from which that norm developed has been one of regular state upheaval. Even if such an entrenchment were passed, what is its meaning to the residents of the approximately 17,000 islands that Indonesia contains? On that point I return to cognitive linguistics, as it is necessary to say that contemporary linguistic science is now quite uniform on the contention that language by itself contains no meaning. It is a mechanism for the communication of meaning, but it is not itself meaning. Semantic meaning is always instantiated uniquely, by the receiver of that language, in their epistemologically unique cognitive environment, and always at the very moment that it is communicated to them. There are no dead constitutions, and there are no constitutions that have much uniformity in their cognitive instantiations of the many people who live under that state. If it were otherwise, constitutional courts would have far easier jobs of interpretation and far fewer cases to review or deny.
When we ignore this, and rely on the language that has been most effective for us, then we might find ourselves in a situation like Indonesia's presently. Indonesia's constitutional safeguards against excessively easy constitutional amendment are reasonably good. Yet how does one predict prior to the first four elections that supermajority coalitions would be relatively easy to accomplish under the political circumstances of a Constitution not yet amended? The people can patchwork the problem, but not a disinterested elite in Jakarta, the Hague, or Williamsburg. These are advisors, suggesters of metaphors, but the reformed 1945 Constitution of Indonesia that operates today was not written in 1945, or even during the Reformasi. It is written each time it is considered by any citizen or official. The Constitution of Indonesia must instantiate, before it constitutes Indonesia.
I know my own country cherished its customary Presidential term lengths, and its Constitution. I know that long presidencies are often attended by corruption. I do not know, what the future holds for Indonesia. We are often attempting to hedge bets, and assuage the fear of uncertainty, when making constitutions and constitutional doctrines. Yet, unless your constitution contains text sufficiently detailed to similarly instantiate in most citizens and across most times that state will exist, there is no certainty, and the attempt to create it will distract a good people from a better purpose. Fear is an inefficient motivator, and the comparative constitutional enterprise generally can show us readily, that regardless of constitutional language, no one is exempt from the debt of citizenship, and no nation is made up of only language.