Democracy Without a Solid Constitution Becomes Democrazy

Prof. Dr. Ahmad Tholabi, S.Ag., S.H., M.H., M.A.
Professor at UIN Syarif Hidayatullah Jakarta

Eight decades is relatively old for a nation, judging from the vicissitudes of Indonesia's history, from the endeavor to preserve both de jure and de facto, which then came into the transition towards a full-scale democracy today.

Nevertheless, throughout each independence celebration, one aspect frequently eludes public scrutiny: How do we fulfill the constitutional promise established the day following the proclamation?. That pledge transcends mere words on paper—it embodies the essence that sustains our democracy.

Protector of the Constitution

Each August, we commemorate two significant events in Indonesia's constitutional framework: Independence Day and Constitution Day.

These two occurrences do not only represent a chronological succession, but they are crucial elements of identity, signifying Indonesia's emergence as a nation-state that is both sovereign and constitutional.

The extensive history of this nation demonstrates that independence encompasses not only liberation from colonization but also the capacity to uphold an equitable legal system.

The Constitution functions as a collective commitment to adhere to principles that ensure liberty, equality, and justice, which are represented by the Constitutional Court (MK) as a custodian of that commitment and the protector of the constitution itself.

In the last two decades, numerous fundamental court rulings have reaffirmed the institution's dedication to safeguarding individuals' fundamental rights, which has raised several concerns, such as the right to associate freely, the entitlement to a healthy environment, and equality under the law, which exemplify the Constitutional Court's dedication to constitutional ideals.

This perspective echoes Alexander Hamilton's assertion in The Federalist Papers (1788) that the judiciary serves as "the fortress of a limited constitution" against possible legislative overreach.

Nonetheless, this recognition should not engender complacency, as the landscape of Indonesian democracy is becoming increasingly intricate in the globalization era—an inevitable advancement of information technology and escalating political division have introduced novel issues.

The Constitutional Court adjudicates legal matters while also preserving public legitimacy in the face of prevailing public sentiment and political influence.

Aharon Barak (2006), an expert in constitutional law, warned that a constitutional court can only serve as a protector of ideals if it maintains integrity, transparency, and openness to public scrutiny.

Therefore, the efficacy of the Constitutional Court is derived not solely from its statements but also from the processes and methods employed to uphold public confidence.

Fortification Agenda

Moving forward, a minimum of four enhancement agendas require at least several focuses.

Firstly, guaranteeing the integrity of constitutional judges through a transparent recruitment procedure devoid of political intervention since the public must fully trust that judges are due to their competence and integrity, rather than power affiliations or concessions.

Secondly, enhancing access to constitutional justice is crucial. A significant number of persons are unaware of the procedures for initiating a lawsuit to assess the legality of laws or to adjudicate conflicts about the jurisdiction of state institutions before the Constitutional Court; hence, legal literacy must be promoted.

Kofi Annan (2004) emphasized that a society devoid of the rule of law is one lacking justice, and in the absence of justice, peace cannot exist.

Third, adaptation to legal technology is essential.Digitizing judicial proceedings, publishing rulings interactively, and employing artificial intelligence (AI) for legal research can enhance the responsiveness and transparency of the Constitutional Court.

Fourth, broadening global networks to overcome constitutional challenges that are barely inclusive to Indonesia. Studying the methods of other nations will enhance perspectives and bolster the Constitutional Court's ability to tackle emerging concerns.

In essence, 80 years of independence is the perfect moment to reaffirm the principles bequeathed by the nation's founders: "Independent, United, Sovereign, Fair, and Prosperous Indonesia."

The Constitutional Court also plays a crucial role in ensuring that these objectives remain aligned; however, in practice, it faces challenges from political pressure, rapid societal changes, and rising public expectations that can undermine its resilience.

Nonetheless, if integrity is upheld, legal proceedings are executed transparently, and verdicts are founded on moral fortitude, the Constitutional Court will persist as a cornerstone of democracy and the rule of law.

Similar to a river that perpetually flows towards the ocean, the constitution should serve as the guiding current of the nation's trajectory—especially towards Indonesia Emas 2045 which is still two decades ahead.

The Constitutional Court must keep its foundation by eliminating any contaminants that jeopardize the purity of justice and assuring its unerring progression toward the estuary of equity.

In the midst of contemporary tumult, where the concept of democracy is routinely contested and legal principles are regularly challenged by various interests, the Constitutional Court must maintain its stand.

It is not merely an impressive edifice in the capital's center but a guiding light in adversity, a navigational aid to safeguard Indonesia from tumultuous upheavals.

Eight decades of freedom exemplify a narrative of valor by our founders, whose bravery established the very foundation of our nation.

The Constitutional Court's bravery in preserving the essence of the constitution bears every hope within the hearts of all people.

As long as the constitution endures, Indonesia's independence will remain intact. 

(This article was originally published in Kompas on Friday, August 15, 2025).