Preventing Abusive Constitutionalism in Indonesia

Through Landau’s abusive constitutionalism concept, this article aims to investigate the background behind the plan to conduct further constitutional amendments after over two decades of constitutional amendments in 1999 – 2002. The central question to be addressed is whether it is necessary to pursue further constitutional amendments aimed at restoring the authority of the People’s Consultative Assembly (MPR) to set State Guidelines (PPHN) and extending the President’s term of office from two to three terms. This study utilizes doctrinal-qualitative approaches. It studies relevant laws, regulations, and doctrines to find out the primary factors that contribute to the MPR intention to amend the constitution. This paper argues that while amending a constitution is within the MPR’s constitutional powers, doing so should consider principles of constitutionalism and democracy. A constitutional amendment should be carried for the sake of having a better constitution which uphold constitutionalism –and not the other way around. This paper, therefore, asserts that further constitutional amendment with the above-mentioned agendas potentially lead to abusive constitutionalism if doing so without any clear and legitimate purposes. In the absence of well-defined and reasonable goals, a constitutional amendment may be subjectively used or misused by state institutions to gain more constitutional powers --not to strengthen constitutionalism and democracy. This paper recommends three ways to avoid abusive constitutionalism namely: inserting eternal clause, applying basic doctrine structure, and effectuating civil society.