II. The Power of Presidents

PUSaKO is best described as an advocacy organization, engaging in legal analysis, legislative research, and relationships with government officials and peer organizations. Given the power and size of the national legislature (DPR) most opportunities for reform exist there; however, this ignores the judiciary and presidency. I have the opportunity to work at the Constitutional Court in Jakarta later in the summer, so I am going to focus this week on the Indonesian presidency. This is a long post. The more I read, the more compelling the history became.

Indonesian Presidential History

The Indonesian Constitution and legal system requires understanding the leaders who drafted, implemented, and, at times, abused both institutions. Just as the presidencies of Washington, Lincoln, Roosevelt, and Nixon permanently altered both the text and subtext of the United States Constitution and Code, so too do the legacies of the Indonesian executive color and distort law across the archipelago.    

Independence, Sukarno, & "Guided Democracy"

Indonesia’s first president was Sukarno, who followed the Javanese tradition of having one name. His father based it on the character Karna from a Hindu epic, the Mahabharata, and the Sanskrit prefix “su,” meaning good. Such was the legacy impressed upon Sukarno from a young age, and a legacy he would cement as he shepherded one of the largest independence movements in modern history, and ruled precariously in its aftermath.

Trained formally as a civil engineer, Sukarno adored the art of shadow puppetry, and his upbringing exposed him to a Who’s-Who of Indonesia’s varying cultures, ethnicities, and ideologies, from nascent communists to militant Islamists. A gifted orator and polyglot, Sukarno prioritized independence and unity, declaring Indonesian sovereignty from Imperial Japan the day after their surrender in World War II and formulating the Pancasila, which serves as the official “national ideology” of Indonesia. With the announcement of independence, Sukarno and other movement leaders adopted the 1945 Constitution with Pancasila woven into the Preamble to the Constitution.

Translated literally as the Five Principles, the Pancasila is considered by many Indonesian legal scholars to be the bedrock of Indonesian law. It is contained in every iteration of the Indonesian constitution and taught in Indonesian schools, and recent rulings of the Constitutional Court have incorporated the Pancasila into their jurisprudence.

Sukarno’s five principles are as follows:

  1. Belief in Almighty God
  2. A Just and Civilized Humanity
  3. The Unity of Indonesia
  4. Demokrasi
  5. Social Justice

It is not difficult to see Sukarno’s balancing act at play in the Pancasila and how these principles both reinforce and conflict with one another, just as the personalities and beliefs of the Sukarno era did.

Politically speaking, Sukarno braided secularism, socialism, and Islam into an ideology that I might call theatrical nationalism. A dual cult of personality and patriotism, Sukarno had the unenviable task of holding together a vast and varied nation through a period of enormous upheaval, and he saw economic, diplomatic, and democratic development as subservient to the goal of persatuan Indonesia/Indonesian unity. In terms of scope, it would be as if the Founding generation of America had inherited not thirteen colonies but fifty fully formed states, without a common language or ethnicity, and several literally an island unto themselves. Independent Indonesia was also not "left alone” to the extent that the early United States was: the Netherlands quickly attempted to reassert colonial rule, the Cold War divided the region, and the new world economy made the fledging country subject to the whims of global markets.Sukarno (middle), and vice-president Mohammad Hatta (right), with the first prime minister Sutan Sjahrir. Sukarno had him jailed for unproven conspiracy charges, which eventually led to his death.

Sukarno’s performance as president was a mix of comedy and tragedy. As a condition of formal independence from the Dutch in 1949, Sukarno and his administration agreed to a new constitution that federated power between the central government and the provinces. It was later suspended by Sukarno at the urging of top leaders and replaced by a new constitution that was again suspended by Sukarno in 1959 in favor of the original 1945 Constitution. This reversion to the 1945 Constitution by unilateral decree began Sukarno’s final act, prompting his so-called Guided Democracy program, which placed Sukarno fully at the center of an already centralized power structure and requiring that half of the members of the legislature be presidentially appointed, alongside countless other assertions of presidential power over civil society and the economy.              

This would have a tremendous effect on the Indonesian constitution, with Article 1 of the Amended Constitution declaring the Republic of Indonesia a “unitary state” and Article 37(5) prohibiting any other form of government. The centralization of governmental and legal power was a product of Sukarno’s vision for Indonesia, the rejection of Western attempts to institute federalism, and the very real need to bind the Indonesian population together. It was also wielded callously by Sukarno and brutally by his successor, General Suharto.

I have omitted much of the Sukarno era because it is simply too complex and rich to cover in a blog post, but his turbulent rule would come to an end with the 30 September Movement, an attempted coup by factions within the military. By 1965, Sukarno’s juggling act of balancing the communist party (PKI), Muslim religious leaders, and the military under his nationalist Guided Democracy agenda spun out of control, resulting in the assassinations and detainment of high ranking Sukarno government officials and violent uprisings in several regions of the country. Portions of the military loyal to Sukarno, or at least the concept of his government, quelled the coup under the leadership of General Suharto. Disillusioned and seeing an opportunity, Suharto wrestled power from Sukarno, was appointed and later elected as president, and transformed Sukarno’s Guided Democracy into his own New Order for the next 31 years.

General Suharto, the 1965-66 Mass Killings, & "New Order"

As with Sukarno, Suharto retained the pretense of the 1945 Constitution and democracy, “winning” elections, “passing” laws with the support of the legislature, and “upholding” the principles of Pancasila. What he lacked in charisma, he made up for in brutality. In response to the 30 September Movement, Suharto blamed the communist PKI party, and began a campaign of anticommunist purges that soon grew to include women’s rights activists, ethnic Chinese, atheists, and former supporters of Sukarno, as well as ad hoc murders of political enemies and critics of the government. These groups were often labeled "anti-Pancasila" to justify their detainment, torture, and murder. Between 500,000 and three million people were killed by Suharto death squads or died in government run concentration camps.

Suharto’s regime was supported by the United States and other Western powers. Specifically, American military and diplomatic resources were instrumental in the mass killings. Numerous declassified documents from the State Department and CIA, testimony from U.S. officials, and investigations by journalists and historians have shown that the United States government knew about the nature of the killings and provided military, financial, and political support to Suharto’s military, including lists of PKI members’ whereabouts, communication equipment and uniforms, and at least one direct transfer of money to a death squad. Additionally, American, British, and Australian operatives supported “black propaganda campaigns” throughout Indonesia that promoted Suharto-backed propaganda against communists and other dissidents through radio broadcasts and pamphlet distribution. One set of British leaflets condoned the killing of Indonesians of Chinese descent, stating that “for the most part they only have themselves to blame.” This was part of the Western bloc’s strategy of containment in Southeast Asia and was limited neither to Indonesia nor the region.

It should come as no surprise that Jakarta reacts with skepticism toward current efforts by the United States, Europe, and Australia to court Indonesia to counterbalance an increasingly authoritarian China. Millions of Indonesians alive today lost family and friends to Suharto’s totalitarianism, or were themselves the victims of violence and harassment by the government, and Indonesian leaders remember how fickle the West has been in its commitment to human rights when geopolitical realities shift. 

Despite this, Indonesia’s second president presided over a period of relative stability, particularly after the initial purges of 1965-66 neutered all opposition and Western support for Suharto ushered in foreign investment and aid. Corruption was rampant, but the domestic economy grew steadily. Importantly, by utilizing Sukarno’s asserted authority to govern by executive decree and stock the legislature with supporters, Suharto managed to maintain a twisted sort of rule of law, basing New Order policy on the 1945 Constitution, Pancasila, and legislative lawmaking. While there was nothing constitutional or legal constraining the Suharto regime, the legitimization of New Order actions by reference to Indonesian sources of law meant that, upon Suharto’s resignation in 1998, the vestiges of democracy from the 1940s and 50s were able to be resuscitated.

By the end of his reign, Suharto was immensely unpopular, and he was blamed for the total collapse of the Indonesian economy during the 1997 Asian Financial Crisis. A combination of Muslim resistance, student-led protests, and abandonment by his political allies forced Suharto to resign, transferring power to vice-president B. J. Habibie, a stroke of luck immeasurable to Indonesian democracy.

Era Reformasi & Democratic Rebirth 

Habibie was vice-president for about two months before Suharto’s ouster, after which he was president for 517 days, compared to Sukarno’s twenty-two years and Suharto’s thirty-one. Habibie is credited with starting the Era Reformasi, a series of constitutional, legal, and political reforms that produced the current Amended 1945 Constitution and the governmental structure outlined in my previous post. His commitment to democratic reform, which led to his defeat when he called for elections three years early, and his peaceful transfer of power to successor Abdurrahman Wahid were crucial steps toward modeling democratic norms and moving Indonesia away from dictatorship without triggering backlash. He quickly lifted restrictions on opposition parties, devolved some power away from the central government, released political prisoners, while shoring up some press protections.

President Wahid, the first freely elected president of Indonesia, and President Megawati, Indonesia’s first female president who succeeded Wahid as his vice-president when he was driven from power, also stewarded Indonesia through the Reformasi, each stepping aside when they lost power and remaining committed to reform. Megawati, a daughter of Sukarno, continued to run for office and lead her party after her defeat by the sixth president, Susilo Bambang Yudhoyono (referred to as SBY).

President SBY and his successor, President Joko Widodo (colloquially called Jokowi), both served or will serve two full five-year terms, to which they are limited under the First Amendment of the Constitution. They have overseen significant change in Indonesia, but the Constitution has not been amended under their administrations and they have not so abused their power as to upend Indonesian democracy. Although supporters of President Jokowi, who will conclude his second term in 2024, have floated the idea of amending the Constitution to allow him a third term, he so far has not endorsed such action and has sought consensus, leading a broad coalition government that controls some 87% of seats in the DPR. There is no evidence that this coalition has been coerced, and party leaders have at times threatened to join the opposition, suggesting that legislative deal-making, while not always transparent, is based on substantive conflict resolution. The bulk of Presidents SBY and Jokowi’s influence on Indonesian democracy has been the overhaul of the Indonesian election system and appointment of Constitutional Court justices, but those developments are better left to my future entries on the Indonesian electoral process and judiciary. A presidential mural, with two some argue should be included in presidential canon. Top, left to right: Assaat, Jokowi, Prawiranegara, & SBY. Bottom, left to right: Habibie, Megawati, Suharto, Sukarno, & Wahid.

Before finishing this section, I want to step back a moment and reemphasize that this is a deeply abbreviated historical accounting, and it excludes numerous political actors who contributed significantly to the development of Indonesia. I have dwelled on the presidents because of their impact on the presidency itself, but names like Mohammad Hatta, the first vice-president and indispensable independence leader, Sjafruddin Prawiranegara, who headed the emergency government-in-exile during Dutch invasion, and Mr. Assaat, president of the provisional government in Sukarno’s absence, among countless others, complicated and enabled the events I have outlined above.

In the end, we are left with an Indonesia of three layers: (1) the nation, with histories and cultures stretching back into antiquity, (2) the country, fathered by Sukarno and others in 1945, and (3) the democracy, which reared its head briefly in the 1950s, stepped out of darkness in 1998 under Habibie, and remerged fully in 2002 with the final Amendment to the Constitution. I am lucky to be here in the twentieth year of Indonesian democracy, an anniversary few Indonesians I have met take for granted.

A Brief Summary of Presidential Powers 

With the history as context, I will conclude with a brief outline of the power and limitations of the Indonesian presidency. Traumatized by the Sukarno and Suharto years but fearful of disintegration, the Era Reformasi saw spirited debate on how best to reign in the presidency, both by direct limits on the position and some ancillary changes that indirectly restrained the executive by strengthening other branches.

Some presidential powers are recognizable to an American reader:

- The president is the supreme commander of the military, with power to declare war with DPR approval.

- The president may also declare emergencies, appoint advisors, grant clemency and pardons, and receive and appoint (with DPR approval) ambassadors.

- The president is vested with the executive power of Indonesia, overseeing the bureaucracy in the enforcement of laws and promulgation of regulations.

And some limitations on the presidency are also similar:

- The president is limited to two five-year terms.

- The president must be Indonesian born, never have obtained citizenship elsewhere, or have committed treason.

- The president may be removed from office through impeachment by the DPR. However, the DPR must submit their claim to the Constitutional Court, who determine if the charge is impeachable. After this ruling, the DPR and the Indonesian senate (DPD) take up the issue of impeachment together in a joint session (MPR), in which two-thirds of the MPR must be present, and two-thirds of those present are required to remove the president. 
Note: the additional step of Court approval was likely motivated by the deeply political removal of President Wahid by the MPR in the early years of Era Reformasi. 

Other powers are comparable to the United States, but differ in important ways:

Powers over the judiciary

- The president appoints justices of the Supreme Court, but these appointments come from a list of candidates proposed by a Judicial Commission. The Judicial Commission is composed of members appointed by the president and confirmed by the DPR. Once the Judicial Commission determines its list of justices, the DPR then votes whether to approve the justices before the Commission sends the names to the president for appointment. This reduces the control the president has over who is appointed to the Supreme Court, but it also sets up a potential conflict if the president refuses to appoint any of the approved candidates. In theory, this would result in a new proposal and approval process with different candidate justices until the president is satisfied. Regardless, this is substantively different from the American system where the president “goes first,” having to weigh a Supreme Court nominee’s confirmability against the composition of the Senate.

- The president appoints three of the nine justices on the Constitutional Court.

Note: the Constitutional Court is separate from the Supreme Court, and is the primary judicial check on both the legislature and the presidency. The remaining six justices are appointed by the DPR and the Supreme Court, each getting three appointments.


Powers in lawmaking

- For a bill to become law, the DPR and the president must “jointly approve” the bill. Once this joint approval is obtained, the bill is debated, amended, and eventually voted on. If the bill passes, the president cannot veto it; at most, the president can withhold their signature, but the law becomes enacted within thirty days regardless. This gives the president increased control over agenda-setting, but considerably less power over final enactment. I am unsure of what happens if the president gives approval and the bill is subsequently amended into a completely different substantive bill. This may be a constitutional question left to the Constitutional Court.

- If the president withholds approval for a bill, that bill cannot be debated and cannot be reintroduced until the next session of the DPR, further increasing the president’s direct power over agenda-setting in the legislative branch.

- The president has the power to issue interim emergency laws during “pressing circumstances.” Such emergency laws are equal to a statute in power, but they must be approved or repealed by the DPR during the next legislative session. The definition of “pressing circumstances” is debated, but thus far, the Constitutional Court has shown deference to the president in how “pressing circumstances” are interpreted. This gives the president enormous power during emergencies in the short term, with a quick legislative check if the DPR wishes to exercise it.


Other provisions of interest

- The president appoints ministers of the various government agencies, the equivalent to members of the U.S. president’s cabinet. These ministers need not be confirmed by the DPR, making it easier for the president to govern with their preferred staff and to remove ministers without braving a new confirmation battle. This also speeds up the process of governmental transition, which in the United States can take months, even years

The vice-president’s only formal power is to step into the presidency in the event of presidential removal, incapacitation, or death. Beyond that, the vice-president is supposed to “assist” the president. Such is the vice-presidential lot in life.

Constitutionally speaking, the Indonesian president is weaker than their American counterpart, with more oversight by the legislature and less influence over legislation and judicial appointments. Still, as with most presidential systems, the executive has a strong influence in both government and politics, particularly in international and military affairs, and while any branch of goverment can become abusive in its exercise of power, the president is always uniquely situated to undermine democracy and subvert the rule of law.  


Two lovely relics from William & Mary Law School.