Is There an Indonesian Constitutional Democracy?

Welcoming the War on the Tradition of Meaning

BOOK REVIEW

Constitutional Democracy in Indonesia, edited by Melissa Crouch, Oxford, Oxford University Press, 2023, 336 pp., £87.00 (Hardback), ISBN: 9780192870681

Pranoto Iskandar*

(2024) Oxford U Comparative L Forum 2 at ouclf.law.ox.ac.uk | How to cite this article

[The author expresses gratitude to René Provost for his invaluable feedback and to Gerhard Dannemann for his enthusiastic response. Importantly, the clarity of the argument of this paper has been greatly improved through the meticulous editing of Kate White.]

Melissa Crouch’s Constitutional Democracy in Indonesia is best understood as a cue to narrate not only the contemporary English language scholarship on Indonesian legal studies but also the general state of Indonesian studies. The background to this book is her The Politics of Court Reform, published four years earlier as a homage to Daniel Lev, a pioneer of modern Indonesian legal studies which knows no disciplinary boundary. In her introductory chapter, Crouch makes it clear that she aims for more than just revisiting and reassessing Lev’s scholarly footsteps in the light of Indonesian current affairs. Rather, it appears that she is determined to wholeheartedly carry the torch of Lev’s ‘deep research’ as the best way of making claims about law in Indonesia. In this review, I argue that Constitutional Democracy in Indonesia is a later manifestation of Lev’s deep research.

It is therefore imperative to start by clarifying what this is. In Crouch’s understanding, it is ‘deeply empirical,’ signalling ‘the centrality of [Lev’s] commitment to his research and the way his method informed his approach to the politics of court.’[1] Clearly, this begs further explanation; that is, what does she mean by ‘empirical,’ the most important word in understanding what might be termed as the ‘Levian take.’[2]

To understand its Levian usage, we must revisit the defining debate between Herbert Feith and Lev on the universalist or the reformist camp and Harry Benda on the pluralist or the establishment camp. The debate started with Benda’s scathing review on Feith’s The Decline of Constitutional Democracy in Indonesia, dealing with the nation’s abrupt institutional transition (1949–57) from ‘parliamentary’ and hence believed to be ‘liberal,’ to ‘guided’ democracy, believed to be ‘authoritarian’ or ‘illiberal.’[3] The core of Benda’s ‘attack’ was the conviction that Feith’s research question had been conceived under a misguided assumption and represented a ‘basic error all along [that] has been to examine Indonesia with Western eyes; or, to be more precise and more generous, with eyes that, though increasingly trained to see things Indonesian, have continued to look at them selectively, in accordance with preconceived Western models.’[4]

Almost four decades after Benda launched his attack, Lev published a ‘brief article’ believing that Feith had lost the debate and hence it was necessary for him to make a foray against Benda.[5] Importantly, Lev rebuked Benda for ‘emphasising cultural factors in Indonesian history fit more snugly into social science givens about new states evolved from a couple of centuries of European and North American interpretations of the world’s nations, races, religions and ethnicities.’[6] At this point, it should be clear that it is culture, and in effect, cultural analysis, that plays the role of bogeyman in the Levian world. In Lev’s mind, culture is nothing less than ‘marginalising or blurring much else that is significant, or diverting attention from fundamental questions acutely relevant to causal analysis.’[7] As a contributor to Crouch’s The Politics of Court Reform perceptively put it, in Lev’s mind, only those who have not done enough research would invoke culture, for the more you know more about a society the less you need to invoke culture in explaining your answer.[8]

By highlighting that culture has no or only a minor place in the Levian take, one can intuit the rationale behind Crouch’s decision to define constitutional democracy simply as ‘democratic governance through a constitutional text that ensures competitive elections and limits on power.’[9] Thus, this is a straightforward adoption of the modern or Western understanding of the concept ‘which was devised in and implemented in North America, adopted in revolutionary France, from where it was extended to much of the European continent and subsequently across the world.’[10] Interestingly, Crouch does not see ‘an ongoing set of debates over the meaning and practice of the Indonesian Constitution’ among Indonesians who are divided on whether or not the Indonesian idea of constitutional democracy associated with liberalism is worthy of discussion.[11] Then again, this should be taken as a badge for being a stalwart of Lev who ‘[has] exhort[ed] us [the students of Indonesia] to interrogate “grand myths” and in doing so warns us not to use “culture” as a lazy label or gloss to explain everything.’[12]

Crouch’s decision to adopt a singular understanding of constitutional democracy points to the preference, or even primacy, of engaging ‘empirical’ over ‘philosophical’ questions in English language scholarship on Indonesian law. By empirical questions, I am referring to various questions that can be answered without understanding, or at least vigorously clarifying their conceptual meaning. As Susanne Langer eloquently puts it, this is ‘a question of fact, in a question of fact, we take for granted that we know what we mean—that is, what we are talking about.’[13] From this standpoint, one can understand why Lev can only appraise the much cited attempt by Benedict Anderson to articulate the Javanese idea of power as nothing more than ‘[a] fascinating and compelling but questionable analysis.’[14] By emphasising the empirical over the cultural or philosophical, the Levian take not only lacked interest in theorising but, more importantly, its followers never stood outside of legal practice and remained bound up in the law reform project.[15] In contrast, one that emphasises culture typically ‘look[s] at law not as rules and policies but as stories, explanations, performances, and linguistic exchanges—as narratives and rhetoric.’[16] To add insult to injury, ‘[c]ultural analysis may have another troubling effect, which is to divert attention from proximate causes and to relieve political leadership of responsibility for their actions.’[17] It then becomes logical for the Levian academics to participate in the Indonesian war on meaning in the name of modern goods such as human rights, democracy, and of course the rule of law, between the status quo and the pro-law reform elements.

With culture out of the way, Constitutional Democracy in Indonesia opts to ‘consider how the legal reforms post-1998 have fostered constitutional democracy in Indonesia, and at the same time how constitutional democracy is under threat.’[18] Thus, it is now justifiable to organise the book’s entire discussion around a universal concept termed ‘a transformational authoritarian constitution.’ Essentially, it refers to a phenomenon where ‘the authoritarian constitution persists in order to facilitate the transition to constitutional democracy.’[19] With this universal concept, Crouch can perform a superficial contextualisation of the Indonesian constitution within a global and comparative landscape and examine ‘both the possibilities and limits of transformational authoritarian constitutions to facilitate the transition to constitutional democracy.’[20] Hence, we can infer that Constitutional Democracy in Indonesia is an attempt to contribute to the worldwide promotion of constitutionalism.

Another important indication of the Levian take is the kind of questions that this book’s contributors raise and to a limited extent the materials that they use to build their answers. In his contribution Stephen Sherlock, a political scientist, emphasises the importance of his empirical observation that contradicts the popular perception that constitutional reform has made the legislature more powerful in law-making.[21] While Sherlock’s argument is based on what happens on the ground, its inference is arguably determined by behavioral observation, involving very little ‘peripheral understandings,’ including the utilisation of ‘intuition’ within ‘the ambit of certain common meanings.’[22] A similar description can also be applied to the contribution of Marcus Mietzner, a prolific political scientist. To explain how and why the military who at first opposed the authoritarian or original 1945 Constitution later shifted their position to support the project of constitutional reform, he focuses on the stated or obvious motives in the form of material incentives for the military.[23] In his scheme, non-instrumental or sacred values are not important,[24] echoing Lev’s supposition that ‘[it] not only does not help much, but tends to conceal causal realities.’[25] Most importantly, the lack of recognition of non-instrumental value has diminished the 1945 Constitution’s emotive significance.[26]

What is more, both Sherlock and Mietzner may be understood as an indication of “the drive for objectivity,” one of the animating motives of empiricism.[27] An important ramification that this drive for objectivity has suggested is that human action can be understood as devoid of intention or agency. As such, there is no need to bring to light, or attempt to articulate, the agent’s or doer’s knowledge on why they decide to act in a certain way. This framework is arguably modelled after the natural sciences that have been believed to be successful in the shepherding the modern age. Supposedly, this aspiration has tacitly nudged both Sherlock and Mietzner to disregard the need to turn to the inner or subjective dimension of the explicated action. In other words, the agency of the actors has become redundant in the process of explaining the researched phenomenon, to say the least. While Sherlock and Mietzner can be congratulated on achieving a much ‘cleaner,’ straightforward, and hence easier to digest explanatory account of the discussed phenomenon, the Levian take’s reductionist strategy does not necessarily help in strengthening the book’s main claim; that is, Indonesia belongs to the category of an authoritarian state. For instance, this tendency has dismissed the imperative for explaining the record of the Indonesian military, the very force that Mietzner believes as the fountain for Indonesian authoritarianism, not to force their legislative agenda, even though they were the predominant political force.[28]

The more technical chapters can also be understood as another manifestation of the Levian take in which law reform is implied, because it is impossible to introduce law reform without being bogged down by mind-numbing details, so much so that it becomes difficult to see their significance beyond Indonesian context. From this viewpoint, a chapter by Fachrizal Afandi and Adriaan Bedner presents another case for the importance of law reform in the scholarly approach in Indonesian studies. Their focus is Indonesia’s shabby criminal justice system with its continued authoritarian character.[29] Again, the same statement can also be applied to Rachael Diprose’s chapter that discusses the practical challenges in the area of decentralisation, including contestation between actors competing for control or influence at the provincial level.[30] Similarly, Dian Rositawati’s chapter exposes the practical challenges or complexity surrounding the implementation of Indonesia’s new model of separation of powers as a result of the establishment of the Judicial Commission as an independent body supervising the Supreme Court.[31]

These three chapters are perhaps best described as a form of policy research report, minus recommendations, making them a form of exposé, albeit without any surprising elements. Similarly, Afandi and Bedner expose Indonesia’s ongoing rampant use of extrajudicial methods despite the promise of liberal law reform that the constitutional amendment has implied. With its extensive coverage, Afandi and Bedner suggests that Indonesia’s “repressive” or “security[-based]” approach can be traced back to the colonial days. However, their turn to Indonesia’s historical experience does not change the nature of their chapter as a form of on-the-ground reporting, concluded with a prescription that revising the criminal procedural law and strengthening the standing of the public prosecutor’s office are the place to start toward liberal law reform.[32] Diprose’s chapter puts forth a comparable assertion regarding the manner in which the democratic (or post-reformasi) Indonesia reverses the hard-earned decentralisation. From the Levian viewpoint, it is widely regarded that decentralisation stands out as one of the significant accomplishments of Indonesia following its authoritarian era. It is worth noting that Diprose’s argument for Indonesia’s ‘emerging slow creep of recentralisation’ has been exclusively based on the conviction that there is a political tension between the central and regional governments as a result of resource contestation.[33] Hence, her implicit dismissal of the ideological underpinning of the recentralisation can be read as a manifestation of Levian take that tries to be bounded within the factual realm.

Turning to Rositawati’s chapter, one can also see the echo of the Levian take. Like Afandi and Bedner’s chapters, Rositawati’s chapter starts by looking at the historical footing of the Judicial Commission, an institution that serves as her focus of analysis. However, she does not confirm that there is some form of continuity with the past. Rather, she highlights that there was a precedent for the establishment of the Judicial Commission in Indonesia’s authoritarian past. She is at pains to explain various forms of conflict, both personal and institutional, surrounding the effort to hold the judiciary to account. However, it is not entirely clear how Rositawati’s discussion on the Judicial Commission can further substantiate the overall claim of the book, that is Indonesian democracy is in regression. This could mean that her chapter hints at the plausibility of the Indonesian turn to authoritarianism as an unwitting consequence of the regulatory mess and uncoordinated efforts of various actors.

In general, the same logic is clear in two chapters which discuss some practical challenges in relation to electoral accountability.[34] Aman and Tomsa’s chapter provides an outline of how constitutional change has affected the Indonesian election. What makes this chapter a manifestation of the Levian take relates to its decision to focus on the procedural dimensions of the change. Like those of other contributions, Aman and Tomsa’s chapter shows no interest in taking the attention of insiders into account. The same approach can also be ascribed to Siregar’s chapter. Consistent with the Levian take, both chapters share an overconfidence that the institution is what matter the most in law reform efforts. This leaves no room for contemplating the plausibility that ideological reasoning could contribute to Indonesia’s institutional choice. As I will further elaborate below, this conviction is premised on the insistence of the Levian take to be deeply empirical, which to a certain extent has unwittingly rejected the explanatory power of human agency.

Turning to the second part of the book where the contributions are grouped under the heading constitutional court, the influence of the Levian take shows no sign of slowing down.[35] Andrew Rosser, a political economist, assesses the impact of litigation in advancing social rights. His most interesting claim is that an effective judicial system, responsive politicians, and the existence of NGOs with strong commitment to social justice that have traditionally been understood as ‘[the necessary] conditions may no longer hold, raising doubts about the likely effectiveness of social rights litigation as a strategy for citizens to promote fulfilment of social rights in the foreseeable future.’[36] Even though his subject is the constitutionalisation of ‘indigeneity,’ Yance Arizona positions his chapter within the Levian agenda, rather than aligning it with the literature on legal pluralism. He points out that Indonesian constitutional history has been marred by various efforts to suppress indigenous rights until the era of the NGOs, another refrain in law reform scholarship.[37]

From the above, it is arguable that Rosser and Arizona present two conflicting answers for the same question; that is, what is the significance of the NGOs in Indonesian politics of rights. And their differing answers indicate that the Levian take has also failed to deliver its promise. That is, it has not provided an answer that is similar to the one found in natural science, despite its commitment to stay on the empirical level. Furthermore, this suggests that the Levian perspective is unlikely to produce an unbiased response. In contrast, the philosophical approach relies on the fundamental assumption of explicitly acknowledging the intrinsic subjectivity that defines social existence.[38] Different from the Levian take that takes the singularity of meaning across human culture or society as granted, the philosophical approach is contingent on the assumption that “[t]here is always a pre-theoretical understanding of what is going on among the members of a society, which is formulated in the descriptions of self and other which are involved in the institutions and practices of that society. A society is among other things a set of institutions and practices, and these cannot exist and be carried on without certain self-understandings.”[39]

Stefanus Hendrianto initially seems to eschew the Levian take. His argument is contingent on the conviction that there is an ‘Indonesian amendment culture,’ defined as ‘the set of shared attitudes about the desirability of amendment.’[40] However, on closer examination, his chapter does not attempt to answer any philosophical questions. Rather, it deals with immediate and concrete problems such as how the Indonesian constitutional court plays its role in bringing about informal constitutional amendment. The chapter by Ahmad Rofii and Nadirsyah Hosen exhibits a similar inclination. It makes little, if any, effort to clarify the meaning behind ‘religion’ and ‘religious values’ that serve as their key terms.[41] It should be noted that the interdisciplinary field of religious studies has largely eschewed religion as a universal concept, relegating the modern idea of ‘religion’ and ‘religious values’ as a mere ‘folk European’ category,[42] signifying its ‘Protestantism triumphalism.’[43]

Rofii and Hosen’s chapter demonstrates that the application of the word ‘religion’ across different cultural contexts is fundamentally illusory, representing yet another assumption inherent in the Leviathan perspective. If we apply the Western meaning of the word religion, one can end describing Indonesia as a “secular” state which in most, if not all, scholarship on Indonesian politics is the relationship between law or state and religion. The problem is that this description is premised on the Western or modern meaning of the word religion that assumes the separation between the secular and the sacred.[44] In Indonesian understanding of the word religion, these are indistinguishable and hence inseparable. In Javanese folk religious traditions, it is impossible to separate etiquette, art, and mystical practice. They are all inextricably linked by rasa—a concept borrowed from India, referring to both “feeling” and “meaning”—that serves as “the common element in them all which ties them together and makes them but different modes of the same reality.”[45] In this framework, one can discern the “vernacular” meaning behind Indonesia’s cryptic self-imposed categorisation as “neither Islamic, nor secular, and yet a religious state.”[46]

The last two chapters are contributions by Abdurrachman Satrio and Mark Cammack that appear to deal with the fundamental importance of legal certainty or the rule of law, another key theme in law reform scholarship. This assertion is implicitly stated in the case of Satrio’s chapter with its premise that the constitutional court’s ruling on the LGBT case is ambiguous, which is not only typical but appropriate for hard cases. To specify, the Constitutional Court evades the question of whether the Indonesian legal system recognises a set of rights that are specifically designed for protecting the LGBT community.[47] Furthermore, he argues that this cryptic ruling is an alternative, if not a better way, to promote human rights in Indonesia as a transitional state.[48] Satrio seems to be playing into the hands of the Levian take’s bête noire which puts a premium on communal harmony (rukun) over rights-based talk in the name of the LGBT’s human rights interest. In the Levian game, you are either for or against law reform. Cammack’s chapter can be read as a continuation of Satrio’s curious position on the value of legal certainty for Indonesia. It offers what might be a workable solution for further elucidation of various capacious concepts and principles that one finds in the constitution of Indonesia.

Despite their manifest differences, both chapters exemplify the Levian take. The best starting point is none other than their unquestioning acceptance that the rule of law can only be understood in a singular way and hints at their shared supposition that the rule of law is universally desirable. As I have pointed out earlier, a philosophical approach posits that human desirability is contingent upon lived experience and hence far from uniform. The reason is that desire is integral to individual human’s capacity as an agent.[49] It is this capacity to act as an agent that eventually create the plurality of modern social imaginaries. Indonesia’s modern social imaginary is different from the Western modern social imaginary that takes the bounded self as its premise and is hinged upon the idea of relational self, signifying the idea of personhood that is thoroughly embedded in its community.[50] It is no surprise that the overarching theological theme of Indonesia’s folk religious traditions revolves around “Kawulo Manunggaling Gusti;” that is, the mystico-social unity of God and human or unio mystica.[51] Furthermore, it is this theological theme that serves as the central supposition of the Indonesian conservative theory of the state.[52] Failing to recognise this, one can be misled to thinking that the conservative theory of the state is nothing more than a second-rate appropriation of “[the] illiberal European streams of political and legal thinking.”[53]

Arguably, what is most troubling for the Levian take is that it denies the existence of human agency in the context of making sense of Indonesian legal and constitutional behavior. In other words, the Levian take’s commitment to deep empiricism has unwittingly led it to deny Indonesia’s capacity to establish and evaluate its own desire; that is, making a subjective distinction between what is and is not desirable. As Charles Taylor has argued, this capacity is “bound up with our power of self-evaluation, which in turn is an essential feature of the mode of agency we recognise as human.”[54] Thus, this leads to the Levian take’s self-described quality as being deeply empirical and can only admit what is observable. That is, it does not or cannot find it necessary to take the subjective understanding of its subjects into account. Supposedly, this has something to do with the conviction that subjective understanding can vary from one person to the next. For that reason, the Levian take assumes the futility of taking the vernacular interpretation seriously.

To stretch things further, the Levian take’s insistence on imposing a set of singular meanings on various key categories might indicate that there is a scholarly war on the tradition of meanings which refers to a competition between two or more conceptual or ideological systems in which each embodies a set of meanings that may not only contradict but also negate each other’s existence. Thus, one can infer the logic behind the conservatives’ steadfast commitment to understanding negara hukum, the phrase that the Levian scholars believe as a straightforward translation of the Anglo’s rule of law,[55] as an equivalent of the rule of law and yet rooted in Indonesia’s own distinctive, if not indigenous or folk, way of conceiving the role of law in Indonesian public life.[56] The conservative’s emotional attachment to negara hukum as an Indonesian phrase implies the supposition that “a moral or political language is a medium of shared understanding and an arena of action because the concepts embedded in it inform the beliefs and practices of political agents.”[57] In short, disassociating negara hukum from the continental’s Rechtstaat and by implication the Anglo’s rule of law is an act of making it an object of explicit awareness in the world.

Mindful of the war of the traditions of meaning that is currently launched by the supporters of the Levian take, the conservatives have appropriated the constitutional amendment as an opportunity to further dissociate negara hukum from both the rule of law and Rechtsstaat.[58] It is an attempt to strengthen the symbolism of negara hukum as a nationally shared concept that is grounded on Indonesia’s own modern social imaginary in which everyone lives and works together (gotong royong) to achieve the desirable condition of a communal harmony (rukun). With this triumph, the chairman of the Constitutional Court in 2017 made an unequivocal call for a “massive and systematic collective effort to instil negara hukum [that is based on] Pancasila [“Five [High Moral] Principle,” or Indonesia’s communal ideology].”[59] This can be interpreted as a rejection of the perspective that negara hukum merely imitates Rechtsstaat, and by extension, the rule of law. It advocates for a reinstatement of negara hukum as a distinctive expression of Indonesia’s legal identity, reflecting local values and traditions.

Close to two decades after Lev’s untimely death, the publication of Crouch’s Constitutional Democracy in Indonesia presents conclusive evidence that the Levian take is unshakeable. As far as English language scholarship on Indonesian legal studies is concerned, the Levian take has now become Indonesia’s very own Leviathan. If anything, what one would like to see now is the 2.0 version of Benda’s appraisal of what the Levian take has accomplished and obfuscated thus far. To borrow from Taylor’s conceptual framing, the Levian take’s unwarranted imposition of a single meaning on, among others, constitutional democracy as a traveling concept can be classified as a textbook case of “an ethnocentric assumption.”[60] By discarding this simplistic belief and embracing the plurality of meanings, I am hopeful that a better view of Indonesia’s unfolding war on the tradition of meaning can be fully presented and hopefully can kick-start a collective attempt to understanding the same conceptual fight that may take place within some other contexts. It is imperative for the inclusion of “some exchange of mutual clarification between ourselves, or some other member of culture, and member of the target culture.”[61] Eventually, we can start developing a picture of what is really going on.

* Centre for Human Rights & Legal Pluralism, McGill University Faculty of Law; The Institute for Migrant Rights, Cianjur – Indonesia, E-mail: pranotoi@imr.or.id.

  1. Melissa Crouch, ‘The Judicial Reform Landscape in Indonesia: Innovation, Specialisation and the Legacy of Dan S. Lev’ in Melissa Crouch (ed), The Politics of Court Reform: Judicial Change and Legal Culture in Indonesia (CUP 2019) 10. ↑
  2. See Theunis Roux, ‘The Constitutional Court: A Levian Take on Its Place in the Reformasi’ in Crouch (n 1) at 245. ↑
  3. Herbert Feith, The Decline of Constitutional Democracy in Indonesia (Cornell University Press 1962). ↑
  4. Harry J Benda, ‘Democracy in Indonesia’ [1964] 23 Journal of Asian Studies 450. ↑
  5. Daniel S Lev, ‘Conceptual Filters and Obfuscation in the Study of Indonesian Politics’ [2005] 29 Asian Studies Review 345, 346. ↑
  6. ibid 345. ↑
  7. ibid 346. ↑
  8. See Roux’s reading of Lev’s thought. Roux (n 2) at 245. ↑
  9. Melissa Crouch, ‘The Limits of Transformational Authoritarian Constitutions: The Indonesian Experience’ in Melissa Crouch (ed), Constitutional Democracy in Indonesia (OUP 2023) 1–2. ↑
  10. Martin Loughlin, Against Constitutionalism (Harvard University Press 2022) 32. ↑
  11. Crouch (n 9) 1, 2. ↑
  12. Crouch (n 1) 3. ↑
  13. Susanne K Langer, Problems of Art: Ten Philosophical Lectures (Charles Scribner’s Sons 1957) 2. ↑
  14. Lev (n 5) 347 (emphasis added). ↑
  15. For further articulation on this point because of the commitment to empirical over the philosophical or cultural, see Paul W Kahn, The Cultural Study of Law: Reconstructing Legal Scholarship (The University of Chicago Press 1999) 7. ↑
  16. See Paul Gewirth, Law’s Stories: Narrative and Rhetoric in the Law, Peter Brooks & Paul Gewirth, eds (Yale University Press 2008) 2. ↑
  17. Lev (n 5) 348. ↑
  18. Crouch (n 9) 1. ↑
  19. ibid 3–4. ↑
  20. ibid 4. ↑
  21. Stephen Sherlock, ‘The Consequences of Halfway Constitutional Reform: Problems of Lawmaking in Indonesia’s Parliament’ in Crouch (n 9), 29. ↑
  22. See Charles Taylor, ‘Interpretation and the Science of Man’ in Rabinow, Paul & William M Sullivan (eds), Interpretive Social Science: A Reader (University of California Press 1979) 29. ↑
  23. Marcus Mietzner, “Defending the Constitution, But Which One? The Indonesian Military, Constitutional Change, and Political Contestation, 1945–2020” in Crouch (n 9) 49. ↑
  24. It is not uncommon to find what is essentially non-instrumental reasoning as an ‘argumentative’ support for the 1945 Constitution, most notably among academics who are outside of the Western-oriented circle. See e.g., Idrus Affandi, Back to the Original 1945 Constitution of the Republic of Indonesia (Penerbit Rosda 2020). ↑
  25. Lev (n 5) 349. ↑
  26. Considering its emotive significance, it is widely believed that the preamble of the 1945 Constitution can help students to embody the spirit of nationalism as an experiential understanding. See ‘Tumbuhkan Rasa Nasionalisme Lewat Hafalan Pembukaan UUD 1945 [Nurturing the Sense of Nationalism through Memorising the Preamble of the 1945 Constitution]’ Kementerian Agama Republik Indonesia [The Indonesian Ministry for Religious Affairs] (Jakarta, 4 October 2019), <https://sumsel.kemenag.go.id/berita/view/1239891/tumbuhkan-rasa-nasionalisme-lewat-hafalan-pembukaan-uud-1945>. ↑
  27. See Charles Taylor, “Hegel’s Philosophy of Mind” in Human Agency and Language: Philosophical Papers (volume 2) (CUP 1985) 79. ↑
  28. One commentator noted that “the [Indonesia’s New Order] government has withdrawn bills because no mufakat [consensus] was emerging. It is said that over 650 bills have shelved in parliamentary committees . . . before they even reached the plenum simply because the opposition refused to give its assent.” See Donald G McCloud, Southeast Asia: Tradition and Modernity in the Contemporary World, 2d ed (Routledge 2019) 46. ↑
  29. Fachrizal Afandi and Adriaan Bedner, ‘Between Upholding the Rule of Law and Maintaining Security: Criminal Justice Actors in Indonesia’s Constitution’ in Crouch (n 9) 84. ↑
  30. Rachael Diprose, ‘Striking the Right Balance: Winding Back Indonesia’s “Big Bang” Decentralisation’ in Crouch (n 9) at 89. ↑
  31. Dian Rositawati, ‘Building Walls Rather than Bridges: The Judicial Commission vs the Supreme Court in Indonesia’ in Crouch (n 9) 115. ↑
  32. Afandi & Bedner (n 28) 84. ↑
  33. See Diprose, (n 29) 90. ↑
  34. See Adhy Aman and Dirk Tomsa, ‘The Constitutional and Legislative Foundations of Indonesia’s Electoral Regime’ in Crouch (n 9) 133; Fritz Siregar, ‘Election Supervision in Indonesia: Options for Reforming the General Election Supervisory Agency’ in Crouch (n 9) 151. ↑
  35. On criticism of the Levian take, especially in the context of the constitutional court, see Roux (n 2). ↑
  36. Andrew Rosser, ‘Making Social Rights Real? The 1945 Constitution and Social Rights Litigation in Indonesia’ in Crouch (n 9) 176. ↑
  37. Yance Arizona, ‘Indigeneity in the Indonesian Constitution’ in Crouch (n 9) 199. ↑
  38. In Taylor’s theoretical construction, this embrace is signified by positioning the claim “we are language animals, we are stuck with language, as it were” front and centre. By claiming “we are language animals,” Taylor is “not just to say that [human have] some compulsive tendency to form reflexive views of [themselves], but rather that as [they] are, [they are] always partly constituted by self-interpretation, that is, by [their] understanding of the imports which impinge on [them].” See Charles Taylor, “Self-Interpreting Animals” in (n 27) 45 at 72. ↑
  39. See Charles Taylor, ‘Social Theory as Practice’ in Philosophical Papers: Philosophy and the Human Sciences (CUP 1985) 93. ↑
  40. Stefanus Hendriyanto, ‘The Indonesian Constitutional Court and Informal Constitutional Change’ in Crouch (n 9) 220. It should be noted that the amendment culture is borrowed from Tom Ginsburg and James Melton, ‘Does the Constitutional Amendment Rule Matter at all? Amendment Cultures and the Challenges of Measuring Amendment Difficulty’ [2015] 13 International Journal of Constitutional Law 686–713. ↑
  41. Ahmad Rofii and Nadirsyah Hosen, ‘The Constitutionalisation of “Religious Values” in Indonesia’ in Crouch (n 9) 243. ↑
  42. See Ann Taves, Religious Experience Reconsidered: A Building-Block Approach to the Study of Religion and Other Special Things (Princeton University Press 2009) 25–26. ↑
  43. See Adam Yuet Chau, Religion in China: Ties that Bind (Polity Press 2019) 5. ↑
  44. For that matter, this separation is argued as “a move tailor-made for [the Western] culture.” See Charles Taylor, A Secular Age (Harvard University Press 2007) 16. ↑
  45. See Clifford Geertz, The Religion of Java (The University of Chicago 1976) 238. ↑
  46. See Team Viva, ‘Mahfud MD: Indonesia Bukan Negara Agama, Bukan Sekuler [Mahfud MD, [the Chief Justice of the Constitutional Court]: Indonesia is not a Religion-based State, or a Secular [State]]’ (Universitas Gadjah Mada [The University of Gadjah Mada], 23 August 2018) < https://ugm.ac.id/id/berita/16888-mahfud-md-tegaskan-indonesia-bukan-negara-agama/> accessed 30 August 2024; Kementerian Agama Republik Indonesia [The Indonesian Ministry for Religious Affairs], ‘Indonesia Bukan Negara Agama, Bukan Pula Negara Sekuler [Indonesia is Neither a State-based Religion, Nor a Secular State]’ (Kementerian Agama Republik Indonesia [The Indonesian Ministry for Religious Affairs], 11 February 2023) <https://balitbangdiklat.kemenag.go.id/berita/indonesia-bukan-negara-agama-bukan-pula-negara-sekuler> accessed 30 August 2024. ↑
  47. Putusan Nomor 46/PUU-XIV/2016 [Decision No 46/PUU-XIV/2016], 2017 Mahkamah Konstitusi Republik Indonesia [The Constitutional Court of the Republic of Indonesia]. ↑
  48. Abdurrachman Satrio, ‘LGBT Rights and the Constitutional Court Protecting Rights without Recognising Them?’ in Crouch (n 9) 262. ↑
  49. See Charles Taylor, “What is Human Agency” in (n 27) 15–16. ↑
  50. See e.g., Beth Lyon & Pranoto Iskandar, ‘Relational Self and Farmworker Law Reform: The Case of Indonesia’ [2024] 1 Legal Pluralism & Critical Social Analysis 1–21; Keebet von Benda-Beckmann, ‘Relational Social Theories and Legal Pluralism’ [2021] 1 Indonesian Journal of Socio-legal Studies 1–24; Keebet von Benda-Beckmann, “Social Security, Personhood, and the State’ [2015] 2:2 Asian Journal of Law & Society 323–338. ↑
  51. See e.g., Peter J Zoetmulder, Pantheism and Monism in Javanese Suluk Literature: Islamic and Indian Mysticism in an Indonesian Setting, translated by M. C. Ricklefs (KITLV Press 1995); Koentjaraningrat, “Javanese Terms for God and Supernatural Beings and the Idea of Power” in R Schefold, JW Schoorl & J Tennekes, eds, Man, Meaning and History: Essays in Honour of HG Schulte Nordholt (Martinus Nijhoff 1980) 127. ↑
  52. See e.g. Supomo, “An Integralistic State” in Herbert Feith & Lance Castles, eds, Indonesian Political Thinking, 1945-1965 (Cornell University Press 1970) 190; Abdulkadir Besar, “Cita Negara Integralistik: Faham Indonesia [The Idea of Integralistic State: The Indonesian Idea]” in Soeprapto, Saafroedin Bahar & Ismail Arianto, eds, Cita Negara Persatuan Indonesia [The Ideal of the Indonesian Unitary State] (BP-7 Pusat 1996) 51; Soerjanto Poespowardojo, “Cita Negara Integralistik” in id. 23. ↑
  53. David Bourchier, “Organicism in Indonesian Political Thought” in Leigh K Jenco, Murad Idris & Megan C Thomas, eds, The Oxford Handbook of Comparative Political Theory (OUP 2019) 603–604. ↑
  54. See Taylor (n 49) 16. ↑
  55. See e.g. Daniel S Lev, ‘Judicial Authority and the Struggle for an Indonesian Rechtsstaat’ [1978] 13:1 Law & Society Review 37–71 at 43–49. ↑
  56. See e.g. Arief Hidayat, ‘Negara Hukum Berwatak Pancasila [Law-based State (Negara Hukum) with Pancasila Characteristic]’ (Peningkatan Pemahaman Hak Konstitusional Warga Negara Bagi Asosiasi Dosen Pancasila dan Kewarganegaraan (ADPK) & Asosiasi Profesi Pendidikan Pancasila dan Kewarganegaraan Indonesia (AP3KnI) [The Enhancement of the Knowledge on the Citizen’s Constitutional Rights, delivered for the Professor of Indonesia’s National Ideology and Citizenship (ADPK) and the Indonesian Association of the Practitioners of the the Education on National Ideology and Citizenry], Yogyakarta, Universitas Atmajaya and the Constitutional Court of Indonesia, 2017) 2 <https://pusdik.mkri.id/materi/materi_92_Makalah%20Negara%20Hukum%20Berwatak%20Pancasila_Hakim%20Konstitusi%20Prof.%20Arief%20Hidayat.pdf> 2 September 2024. ↑
  57. Terence Ball, James Farr & Russell L Hanson, “Editors’ Introduction” in Terence Ball, James Farrar & Russell L Hanson, eds, Political Innovation and Conceptual Change (CUP 1989) 1. ↑
  58. See Jakob Tobing, ‘The Essence of the 1999-2002 Constitutional Reform in Indonesia: Remaking the Negara Hukum‘ (Ph.D. Thesis, Leiden University 2023) 143–146. ↑
  59. Hidayat (n 53) 1. ↑
  60. See Charles Taylor, “Theories of Meaning” in (n 27) 289. ↑
  61. ibid 280. ↑