“PANCASILA” AS STATE IDEOLOGY AND THE CONSTITUTIONAL COURT *

I D.G. Palguna**

“This country, the Republic of Indonesia, does not belong to any group, nor to any religion, nor to
any ethnic group, nor to any group with customs or traditions, but the property of all of us from
Sabang to Merauke”
Soekarno, the 1st President of the Republic of Indonesia.

This paper is not intended to add more debate and complexity stemming from the
notion of “ideology”1 that have been occurred since its invention by the 18th century’s French
Scholar, Antoine-Louis-Claude Destutt de Tracy in his magnum opus, Elemens d’idéologie
(1801-1815), a four-volume treatment of methodology and philosophy, consists of Idéologie
proprement dite (1801), Grammaire (1803), Logique (1805), and Traité de la volonté et de ses effets
(1815).2 It was said that Ideology, which was introduced soon after his appointment to the
Institut National in 1796, was de Tracy’s attempt to create a secure foundation for all the
moral and political sciences by closely examining our sensations and ideas as these interacted
with our physical environment. He believed that one could resolve all ideas into the
sensations that produced those ideas and thereby examine their soundness.3

There are now dozens of definitions of ideology among scholars within the field of
social sciences, some of which even contradictory among themselves, which reveal
conceptual complexity (as well as controversy) of the notion or terminology. Adorno et.al.,

* Presented at an international symposium which was integral part of Association of Asian Contitutional Courts and

Equivalent Institutions (AACC) Conference’s agendas, held in Surakarta (Solo), Indonesia, August 7-10, 2017.
** Justice of the Constitutional Court of the Republic of Indonesia.
1
As, for instance, stated by Teun A. van Dijk, “It’s almost routine. Studies of ideology often begin with a remark
about the vagueness of the notion and the resulting theoretical confusion of its analysis”; see Teun A. van Dijk, 1998,
Ideology A Multidisciplinary Approach, SAGE Publications: London-Thousand Oaks-New Delhi, p. 1. Or, as reflected in
John Gerring statement, “Few concepts in the social science lexicon have occasioned so much discussion, so much
disagreement, and so much selfconscious discussion of the disagreement, as ‘ideology’. Condemned time and again
for its semantic excesses, for its bulbous unclarity, the concept of ideology remains, against all odds, a central term
of social science discourse”, see further John Gerring, “Ideology: A Definitional Analysis”, in Political Research
Quarterly, Vol. 50, No. 4 (December 1997), p. 957-959.
2
See further, Thomas Jefferson (Ed.), 2009, A Treatise on Political Economy by The Count Destutt Tracy, the Ludwig
von Mises Institute, Auburn: Alabama (firstly published in 1817 by Joseph Mulligan: Georgetown, D.C.).
3
Robert J. Richards, 1993, Ideology and the History of Science, Kluwer Academic Publishers: the Netherlands, p. 103.
1
for example, define ideology as “An organization of opinions, attitudes, and values – a way
of thinking about man and society”,4 while Seliger conceives ideology as “Sets of ideas by
which men posit, explain and justify ends and means of organized social actions, and
specifically political action, irrespective of whether such actions aims to preserve, amend,
uproot or rebuild a given social order”.5 Other scholar, Hamilton, formulates the definition of
ideology as “a system of collectively held normative and reputedly factual ideas and beliefs
and attitudes advocating a particular pattern of social relationships and arrangements, and/or
aimed at justifying a particular pattern of conduct, which its proponents seek to promote,
realize, pursue or maintain”. 6 Meanwhile, Geertz offers a rather simple definition by saying
ideology as “Maps of problematic social reality and matrices for the creation of collective
conscience”.7 An elaborate definition described by Lane. He says ideology is “A body of
concepts [which]: (1) deal with the questions: Who will be the rulers? How the rulers will be
selected? By what principles will they govern? (2) constitute an argument; that is, they are
intended to persuade to counter opposing views; (3) integrally affect some of the major values
of life; (4) embrace a program for the defense or reform or abolition of important social
institutions; (5) are, in part, rationalizations of groups interests – but not necessarily the
interest of all groups espousing them; (6) are normative, ethical, moral in tone and content;
(7) are … torn from their context in a broader belief system, and share the structural and
stylistic properties of that system”.8 As if to add more confusion to the notion, Mullins
explains ideology as “A logically coherent system of symbols which, within a more or less
sophisticated conception of history, links the cognitive and evaluative perception of ones
social condition – especially its prospect for the future – to a program of collective action for
the maintenance, alteration, or transformation of society”.9

4
Theodore Adorno et. al., 1950, The Authoritarian Personality, Harper: New York, p. 2.
5
Martin Seliger, 1976, Ideology and Politics, George Allen & Unwin.: London, p. 11.
6
Hamilton in John Gerring, “Ideology: A Definitional Analysis”, Political Research Quarterly, Vol. 50, No. 4 (December
1997), p.959.
7
Ibid., p. 958.
8
Robert Lane, 1962, Political Ideology: Why the American Common Man Believes What He Does, Free Press: New
York, p. 14.
9
Willard A. Mullins in John Gerring, loc.cit.
2
 A rather succinct, but thoughtful, statement by Gerring may represent the conceptual
complexity (or controversy), “One is struck not only by the cumulative number of different
attributes that writers find essential, but by their more than occasional contradictions. To
some, ideology is dogmatic, while to others it carries connotations of political sophistication;
to some it refers to dominant modes of thought, and to others it refers primarily to those most
alienated by the status quo (e.g., revolutionary movements and parties). To some it is based
in the concrete interests of a social class, while to others it is characterized by an absence of
economic self-interest. One could continue, but the point is already apparent: not only is
ideology farflung, it also encompasses a good many definitional traits which directly at odds
with one another”.10

Apart from the conceptual disagreement among scholars as to the notion of

“ideology” mentioned above, by referring Pancasila (literally means “five basic principles”) as
state ideology in this paper, it should be understood merely as the nation’s philosophical
fundamental or state fundamental establishing the Republic of Indonesia. It is believed that,
considering the diversity the nation inherits as a pluralistic society – in terms of ethnicity,
race, religion, language, and culture – only by sincerely accepting and holding Pancasila as the
state fundamental, and the state ideology as well, the unity of the nation can be maintained.

Pancasila was firstly introduced by Soekarno (or Bung Karno as he fondly known), one
of the nation’s founding figures and the first president of the Republic. In his acclaimed-
historic speech on June 1, 1945, Soekarno, then a member of the so-called Badan Penyelidik
Usaha-usaha Persiapan Kemerdekaan or BPUPK (or Board of Inquiry for Independence
Preparation Measures), stated that Independent Indonesia should be established upon five
basic principles, he called Pancasila,11 which shall serve as the nation’s “philosophical
foundation”, namely: (1) Indonesian Nationalism, (2) Humanity or Internationalism, (3)
Democracy, (4) Social Welfare, and (5) the belief in God. The speech was uttered as a
response to a simple yet fundamental question launched by K.R.T. Radjiman
Wedjodiningrat, who was then the BPUPK’s chairman, during the BPUPK’s plenary session.
The question was: what should be the foundation of the Independent Indonesia? Soekarno

10
John Gerring, op.cit., p.957.
11
That’s the reason why 1st of June is now commemorated as “Pancasila Day”.
3
conceived the question as a challenging quest for philosophical foundation or “philosofische
grondslag” (a Dutch terminology) or “weltanschaaung” (a German one)12 which he described as
the “foundation, philosophy, in-depth thought, spirit, in-depth passion on which the building
of eternally Independent Indonesia will be established”.13 He, however, humbly emphasized
that he did not create all the five basic principles but he just simply “dig it from the
Indonesian soil”.

Soekarno’s proposal was unanimously accepted by all members of BPUPK on

condition that it needs a reformulation.14 After being reformulated, Pancasila was then
included in, and became integral part of, the Preamble of the Indonesian Constitution, called
the Constitution of 1945 (or Undang-Undang Dasar 1945 in Bahasa Indonesia, commonly
abbreviated as UUD 1945). The Constitution of 1945 was officially adopted on August 18,
1945 – a day after Soekarno and Hatta, on behalf of the Indonesian nation, proclaimed the
Indonesian Independence. Now the five basic principles of Pancasila consists of (1) the
Oneness of God the Almighty (Ketuhanan Yang Maha Esa), (2) A just and civilized Humanity
(Kemanusiaan yang adil dan beradab), (3) the Unity of Indonesia (Persatuan Indonesia), (4)
Democracy with the guidance of wisdom in assembly/representation (Kerakyatan yang
dipimpin oleh hikmat kebijaksanaan dalam permusyawatan/perwakilan), and Social Justice for all
the people of Indonesia (Keadilan social bagi seluruh rakyat Indonesia).

It is strongly belief that the national integrity of Indonesia, as a nation which is

founded upon a pluralistic society, can only be secured and maintained if Pancasila is able to
transform itself into a living ideology where all Indonesian accept, internalize, and practice its
concepts, principles, and values as their way of life. Yudi Latif, a young scholar, stated in his
much-acclaimed writing that Pancasila, as a morality basis as well as a compass for the nation-
state Indonesia, has its strong ontological, epistemological, and axiological foundations. Each

12
Soekarno interchangeably used these terminologies as the translation of “philosophical foundation” (or “landasan
filosofis” in Bahasa Indonesia) in his speech.
13
RM. A.B. Kusuma, 2004, Lahirnya Undang-Undang Dasar 1945, Badan Penerbit Fakultas Hukum Universitas
Indonesia: Jakarta, p. 150.
14
For further details, see, ibid., compared to Saafroedin Bahar et.al., 1992, Risalah Sidang Badan Penyelidik Usaha-
Usaha Persiapan Kemerdekaan Indonesia (BPUPKI), Panitia Persiapan Kemerdekaan Indonesia (PPKI) 29 Mei 1945-19
Agustus 1945, Sekretariat Negara Republik Indonesia: Jakarta.
4
and every principle of the Pancasila has its historical, rational, and actual justification that
could drive the nation’s pursuit for great achievements of civilization if it is consistently
comprehended, internalized, trusted, and implemented.15 As a philosophical foundation,
according to a late prominent scholar, Notonagoro, Pancasila is served as the philosophical
basis for the state and its legal order. Accordingly, Pancasila shall be the philosophy of life,
and way of life as well, where the organization of the state established on the basis of people
sovereignty pursuant to Indonesia’s positive laws, including the Constitution, is derived from
in the pursuit of the nation’s goal, that is physical and spiritual happiness of all the people of
Indonesia.16

*****

With all the above mentioned description, a question arises: what then the concepts,
principles, and values contained in the Pancasila? A thorough study conducted by Suprapto
reveals that Pancasila contains the concepts of (a) religiosity, (b) humanity, (c) nationality, (d)
sovereignty, and (e) sociality. The concept of religiosity contains acknowledgement on the
existence of religions and the beliefs in God the Almighty – a concept that have been upheld
by the Indonesian ancestors since ancient times. While in the concept of humanity, of which
Soekarno fondly named it “internationalism”, there is thought to respect human dignity as a
personality who has its own particular traits – from which, then, the ideas of freedom of
thought, freedom of expression, and freedom of choice are derived. As to the concept of
nationality, it explains that the idea of “nation”, contained within it, is not “nation” in a
narrow sense referring to a certain group or a certain region, instead it encompasses the unity
of all people and territory stretching across the archipelago that used to be the territory of the
Dutch Colonial administration. Meanwhile the concept of sovereignty confirms the idea of
democracy that upholds the supreme will of the people. The exercise of the idea, however,
must be guided by wisdom in assembly/representation in accordance with the Indonesian
culture. Lastly, the concept of sociality is a concept which figures out the goal of the nation,
that is physical and spiritual well-being of all people of Indonesia.

15
See further, Yudi Latif, 2011, Negara Paripurna. Historisitas, Rasionalitas, dan Aktualitas Pancasila, Gramedia
Pustaka Utama: Jakarta, especially pp. 42-46.
16
See Kaelan, 2013, Negara Kebangsaan Pancasila. Kultural, Historis, Filosofis, Yuridis, dan Aktualisasinya,
Paradigma: Yogyakarta, p. 50-51.
5
 As to the principles contained in Pancasila, they are nothing else but the five basic
principles forming the Pancasila as a whole. The first principle (the Oneness of God the
Almighty) acknowledges, inter alia, the existence of varied religions and beliefs in God;
everyone is free to hold his or her own religion or belief in God; no one shall be allowed to
force his or her religion or belief to the others; there shall be mutual respect among
individuals holding different religion or belief. The second principle (A just and civilized
Humanity) contains, inter alia, respect for human nature and dignity, human freedom to
express its aspiration and opinion, and the nation plurality. The third principle (the Unity of
Indonesia) contains, inter alia, pride of the nation’s state of the art and achievements of its
people, loving the nation and the motherland of Indonesia, developing patriotism to save-
guard the nation’s integrity. The forth principle (Democracy with the guidance of wisdom in
assembly/representation) contains, inter alia, insight that consensus must be primarily upheld
in making decisions for the common interest, any decision or policy for the sake of the
common interest must consider the fulfillment of justice; avoiding majority domination as
well as tyranny of minority. The fifth principle (Social Justice for all the people of Indonesia)
contains, inter alia, that economic development must be arranged as a joint effort upon the
foundation of togetherness, vital branches of production affecting public life must be put
under the state control, all natural resources must be controlled by the state and must be used
for betterment or well-being of the people, the poor and the neglected children must be taken
care by the state, a social security system covering the entire people must be built as well as
empowering those who are weak and poor to uphold human dignity, the state must ensure
the rights of educations for all citizens.

Meanwhile, values that the Pancasila contained are: value of belief in God which
explains the belief of the existence of transcendental power which is called God; value of
equality which explains the equal treatment to all human being without any discrimination
based on sex, ethnicity, race, group, religion, customs, culture, etc.; everyone is treated equal
before the law and everyone has the equal opportunity in any field of life according to his or
her potentials; value of unity and togetherness upholding the existence of Indonesia as a
pluralistic society which consists of various components forming one integral unity where
every component is equally respected and becomes inherent part of the nation-state system;

6
value of consensus which explains the existence of open-minded attitude guided by the spirit
of togetherness to reach decision; and, lastly, value of welfare which explains the fulfillment
of human needs, physically and spiritually, so as to create security, peace, and happiness. 17

*****

Last question: does all the description pertaining Pancasila mentioned above has
something to do with the Constitutional Court of the Republic of Indonesia (hereinafter
referred to as “the Court”)? The answer is absolutely “Yes, it does”. According to Article 24C
paragraph (1) of the Constitution of 1945 (hereinafter referred to as the “the Constitution”),
the Court, whose verdict is final and binding, shall have the power to adjudicate cases, among
others, on the constitutionality of law and on the dissolution of political party considered to
be in contradiction with the Constitution. By “Constitution”, pursuant to Article II
Additional Rules of the Constitution, it means the Preamble and the Articles of the
Constitution. Hence, a law or a political party might be considered unconstitutional not only
if the law or the political party proved to be in contradiction with any Article of the
Constitution but also if the law or the political party proved to be in contradiction with the
Preamble of the Constitution. It has been mentioned previously, Pancasila is an integral part
of the Preamble of the Constitution. Accordingly, it goes without saying that a law or a
political party might be considered unconstitutional if it is proved that the law or the political
party is against the Pancasila.

As to preamble of a constitution, it is important to note that preamble is an important

part of a constitution because, as Kelsen says, it contains a solemn introduction expressing
political, moral, and religious ideas promulgated by the constitution. That’s why the nature of
preamble is more ideological rather than juridical.18 From a preamble, we can also identify
the character of a state to be founded upon a constitution: whether it is designed to uphold
the will of the people or simply the will of a ruler installed by the grace of God.19 “The

17
All description on Pancasila’s concepts, principles, and values mentioned above are cited and summarized from
Suprapto, 2013, Pancasila, Konpress: Jakarta, pp. 9-30.
18
Hans Kelsen, 1961, General Theory of Law and State (translated by Anders Wedberg), Russel & Russel, New York,
p. 260.
19
Ibid., p. 261.
7
preamble”, Kelsen adds, “serves to give the constitution a greater dignity and thus a
heightened efficacy”.20

Meanwhile, a study conducted by Henc van Maarseveen and Ger van der Tang
describes that there are two types of preamble: declaratory and programmatic. A preamble of
the former character contains statement of legal issues or principles, while a preamble of the
latter one contains guidance of certain measures that have to take or uphold or formulates
certain purposes to pursue.21 Van Maarseveen and van der Tang emphasize further:

Regardless of its type, a preamble can often provide an important guide to the
constitution’s political intentions and background and in particular to how the
constitutional provision should be interpreted. In some cases the preamble can be
considered as putting into words a number of political values which are then
implemented in the constitution’s norms. The values established in the preamble
provide guidelines for putting these norms into practice. The importance of these
values becomes apparent in cases where the courts are required to apply the provisions
of the constitution. To make their decision, they will in certain cases have to refer to
the preamble. A preamble can, however, also provide guidelines for determining the
general nature of a constitution.22
The preamble of the Constitution of 1945, undoubtedly, falls into the type of a
programmatic preamble. The 4th Paragraph of the Preamble confirms that the Constitution to
be built shall be the further elaboration of the 17th August 1945 Proclamation of
Independence. It contains not only measures that have to take and purposes to pursue by the
establishment of the Republic of Indonesia, it also enshrines the very foundation of the
nation-state: the Pancasila.23

Furthermore, according to the Law on the Constitutional Court (Law Number 24 of

2003 as amended by Law Number 8 of 2011 or Undang-Undang tentang Mahkamah Konstitusi,
commonly abbreviated as UUMK), a law can be considered unconstitutional not only if its

20
Ibid.
21
Henc van Maarseveen and Ger van der Tang, 1978, Written Constitution, A Computerized Comparative Study,
Oceana Publication Inc.-Sijthoff & Nordhoff: New York (USA)-Alpen aan den Rijn (Netherlands), p. 252.
22
Ibid., p. 253.
23
For further details on the programmatic character of the Preamble of the Constitution of 1945, see I Dewa Gede
Palguna, 2013, Pengaduan Konstitusional (Constitutional Complaint). Upaya Hukum Terhadap Pelanggaran Hak-Hak
Konstitutional Warga Negara, Sinar Grafika: Jakarta, p. 494-512.
8
substances or materials (its article or its paragraph in an article or any part of it) proved to be
against or contradictory to the Constitution24 but also if the procedure or the process
establishing the law is in contradiction or inconsistent with the Constitution.25 If the Court
rules any material of a law is unconstitutional the Court shall expressly declare the material of
the law no longer has its legally binding power.26 While, if the Court rules that the procedures
or the process establishing the law is unconstitutional, the Court shall expressly declare that
the law as a whole is no longer has legally binding power.27

As to unconstitutionality of political party, the UUMK says that a political party can
be considered unconstitutional if its ideology or its principles or its purposes or its programs
or its activities proved to be in contradiction with the Constitution.28 If a petition on
dissolution of a political party is upheld by the Court, the verdict of the Court shall be
followed by annulling the registration of the political party. 29

The verdict of the Court shall come into force by the time of its announcement in a full
bench session that is open to public.30

24
Known as “material judicial review”, see Article 51A paragraph (5) of UUMK.
25
Known as “formal judicial review”, see Article 51A paragraph (4) of UUMK.
26
Article 56 paragraph (2), Article 57 paragraph (1) of UUMK.
27
Article 56 paragraph (4), Article 57 paragraph (2) of UUMK.
28
Article 68 paragraph (2) of UUMK.
29
Article 73 paragraph (1) of UUMK.
30
Article 47 of UUMK.
9
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Kemerdekaan Indonesia (BPUPKI), Panitia Persiapan Kemerdekaan Indonesia (PPKI) 29
Mei 1945-19 Agustus 1945, Sekretariat Negara Republik Indonesia: Jakarta.
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Ludwig von Mises Institute, Auburn: Alabama (firstly published in 1817 by
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van Maarseveen, Henc and Ger van der Tang, 1978, Written Constitution, A Computerized
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10