Constitutional amendments<\/p>\n
Satya Arinanto
\nLecture and Vice Dean
\nSchool of Law
\nUniversity of Indonesia
\nJakarta
\narinanto@cbn.net.id<\/p>\n
One of the biggest legal issues during 2002 -- and the years
\nimmediately preceding it -- was the question of further amending
\nthe 1945 Constitution.<\/p>\n
According to S.E. Finer, Vernon Bogdanor and Bernard Rudden in
\ntheir book Comparing Constitutions (1995), constitutions are
\ncodes of norms which aspire to regulate the allocation of powers,
\nfunctions and duties among the various agencies and officers of
\ngovernment, and to define the relationships between these and the
\npublic.<\/p>\n
Moreover, K.C. Wheare in his influential book Modern
\nConstitutions says the word \"constitution\" is commonly used in at
\nleast two senses in any ordinary discussion of political affairs.<\/p>\n
First of all it is used to describe the whole system of
\ngovernment of a country, the collection of rules which establish
\nand regulate or govern the government. According to Wheare, the
\nrules are partly legal, in the sense that courts of law will
\nrecognize and apply them, and partly non-legal or extra-legal,
\ntaking the form of usages, understandings, customs or conventions
\nwhich courts do not recognize as law but which are not less
\neffective in regulating the government than the rules of law
\nstrictly so called.<\/p>\n
Theoretically, a modern constitution may be changed through:
\n(1) certain primary forces; (2) formal amendment; (3) judicial
\ninterpretation; and (4) usage and convention.<\/p>\n
The old Article 37 of the 1945 Constitution states: (1) In
\norder to amend the Constitution, at least two-thirds of the
\nmembers of the People's Consultative Assembly (MPR) must be
\npresent; (2) A decision shall be taken with the concurrence of at
\nleast two-thirds of the People's Consultative Assembly's members
\npresent.<\/p>\n
Constitutional reform or constitutional amendment is one of
\nthe most important issues raised by various groups in Indonesia,
\nespecially after the resignation of President Soeharto on May 21,
\n1998. The vague nature of the 1945 Constitution contributed to
\nthe rise of authoritarian dictatorships under both President
\nSukarno and Soeharto.<\/p>\n
The first and second amendments to the 1945 Constitution,
\npassed in October 1999 and August 2000, have only begun to
\naddress the fundamental issues of constitutional reform in
\nIndonesia.<\/p>\n
The first amendment to the 1945 Constitution, which was
\nenacted during one of the sittings of the General Session of the
\nAssembly on Oct. 19, 1999, consist of nine articles, which inter
\nalia govern the powers of the House of Representatives (DPR)
\nas the primary law drafting institution; provide for limitations
\non the number of presidential terms; set out the presidential and
\nvice presidential oaths; place restrictions on the presidential
\nprerogatives; determine the ambit of ministerial authority; etc.<\/p>\n
Moreover, during the same session in October 1999, the
\nAssembly decided, beginning in 2000, to hold annual sessions for
\nthe purposes of further amending the Constitution, issuing
\ndecrees and evaluating the government's performance.<\/p>\n
The 2000 Annual Session convened on Aug. 7, 2000, amid
\npersistent talk of confrontation between President Abdurrahman
\nWahid and the Assembly. In the event, the rumored impeachment did
\nnot take place.<\/p>\n
Despite the difficulties encountered, the first Annual Session
\nagreed on amended text for five chapters of the Constitution: on
\nlocal authorities, the House of Representatives, citizens and
\nresidents, defense and security, and national symbols.<\/p>\n
In addition, two new chapters on human rights and the national
\nterritory were further amended. The constitutional amendments
\ncontained in the second amendment and several of the Assembly
\ndecrees passed by the 2000 Annual Session can be differentiated
\nas between four primary themes: (1) civil-military relations; (2)
\nthe separation of powers, and checks and balances; (3) the
\ndecentralization of power to the regions; and (4) a bill of
\nrights.<\/p>\n
Each of these themes contains important changes for the
\nIndonesian political system.<\/p>\n
The problems that arose during the preparations for the first
\nAnnual Session and the failures encountered in processing the
\nsecond amendment to the 1945 Constitution raised the issue of the
\nformation of a Constitutional Commission to amend the
\nConstitution and to prepare the draft of a new Constitution. This
\nidea was promoted, among others, by a number of NGOs in
\nIndonesia. They formed a Coalition of NGOs for a New
\nConstitution.<\/p>\n
But the Assembly seemed to disagree with this idea. But later
\ndevelopments showed that they had a change of heart. They came up
\nwith many concepts for a Constitutional Commission, but this idea
\nwasn't decided on during the second Annual Session which was held
\nin November 2001. Not only that, the factions in the People's
\nConsultative Assembly were unable to reach a consensus with
\nregard to some crucial articles in the draft of the third
\namendment to the 1945 Constitution. Some articles were finally
\nenacted as part of the third amendment, dealing with inter alia:
\n(1) the procedures for the impeachment of the president and the
\nvice president; (2) the Regional Representatives' Council (DPD);
\n(3) general elections; (4) the Supreme Audit Council (BPK); and
\n(5) the Judicial Power (Supreme Court, Constitutional Court, and
\nJudicial Commission).<\/p>\n
In line with these failures, the support for the formation of
\na Constitutional Commission to amend the 1945 Constitution is
\nbecoming increasingly strong. A new constitution is needed to
\nconstruct the political framework of a new Indonesia. A
\nConstitutional Commission is needed to eliminate political
\nmeddling in the process of amending the 1945 Constitution.<\/p>\n
During the third Annual Session held in August 2002, the idea
\nof establishing a Constitutional Commission seemed to win the
\nsupport of the Assembly, which issued Decree No. I\/MPR\/2002 on
\nthe Formation of the Constitutional Commission. Apart from that,
\nduring the same session, the Assembly also finalized the latest
\nraft of constitutional amendments. Among the articles enacted
\nwere those on: (1) the composition of the Assembly; (2) second
\nround procedures for direct presidential elections; (3) the
\nSupreme Advisory Council (DPA); (4) education and culture; (5)
\nthe national economy and social welfare; (6) transitory
\nprovisions; and (7) supplementary provisions.<\/p>\n
Even though the Assembly decree stated its intention to form a
\nConstitutional Commission, later developments revealed that some
\nMPR factions were opposed to the plan. Thus, what will transpire
\nin the future regarding this Commission is still unclear.<\/p>\n
The writer is a former member of the People's Consultative
\nAssembly's 1st Ad Hoc Committee's Expert Advisory Team on the
\nThird Amendment to the Constitution<\/p>",
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