Constitutional Commission not as big as its name<\/p>\n
Sri Wahyuni, The Jakarta Post, Yogyakarta<\/p>\n
The 2003 Annual Session of the People's Consultative Assembly
\n(MPR) resulted in a controversial decision on the constitutional
\ncommission, a body which most people were hoping would help in
\nthe drafting of a new constitution. State administrative law
\nexpert Denny Indrayana of Gadjah Mada University, who is also a
\nPhD candidate at the University of Melbourne in Australia, shared
\nhis views on the issue. The following is an excerpt of the
\ninterview:<\/p>\n
Question: Previously there was much enthusiasm about having a
\nconstitutional commission such as the one in Thailand, so people
\ncould be involved in drafting a new constitution. But the
\ndecision on the setup of the commission seemed to be somewhat
\nanticlimactic. Your comment?<\/p>\n
Answer: It was to be expected. Basically our MPR is against
\nthe idea of a constitutional commission. The issue of the
\ncommission was on the table before the amendments to the 1945
\nConstitution, but it has never been accepted.<\/p>\n
In particular, the MPR doesn't support the genuine version of
\na constitutional commission, whose tasks would include creating a
\nconstitution by involving public participation in the widest
\nsense.<\/p>\n
What are the shortcomings of the commission that was adopted?<\/p>\n
First, regarding the composition. It only states that the
\ncommission comprises 31 members, but it has never been specified
\nwhether there should be regional representatives, for example.
\nFunctional representation is also unclear.<\/p>\n
Thailand's Constitutional Drafting Assembly clearly specifies
\nthat its 23 members are political and public administration
\nexperts, while 76 others are regional representatives. So, there
\nis intellectual representation and regional representation.<\/p>\n
In our case, the lack of clarity on the commission's
\ncomposition creates a loophole for abuse. Although it is said
\nthat no legislator may sit on the commission, from a legal point
\nof view this has to be explicitly regulated.<\/p>\n
Another concern is the commission's very limited authority. A
\nconstitutional commission has to have the right to make a
\nconstitution draft and to involve full public participation. But
\nour commission has no such authority. It is only given the right
\nto conduct a comprehensive analysis of the existing Constitution.<\/p>\n
A member of the MPR group working on the issue sort of summed
\nup the MPR's approach when he made the point that it was
\nimportant to analyze all the commas and periods in the
\nConstitution, and whether they were in the right place! Such
\nlimited authority will surely distort the exact meaning of a
\nconstitutional commission.<\/p>\n
Hence the commission is not deserving of its name; it is
\nlittle more than a focus group to study the Constitution.<\/p>\n
Institutionally, too, the commission is very weak. It was not
\ngiven the authority to relate directly to the MPR. It is only
\nrequired to report its work to the MPR through the MPR's working
\ncommittee (BPMPR). So it is subordinate to the BPMPR and not of
\nthe MPR. In fact, there is no guarantee that the commission's
\nreport will be conveyed to the MPR. The report could just become
\na useless document piled up on some working committee member's
\ndesk.<\/p>\n
What might be some of the consequences of such weakness?<\/p>\n
These weaknesses will cause the commission to lose its
\nintended spirit as a constitution maker. In a transitional
\nprocess, a genuine constitutional commission can become a
\nstimulating institution for the birth of a people's constitution.
\nTake the case of South African's Constitutional Assembly.<\/p>\n
With its mandate and authority to involve full public
\nparticipation, it printed its constitutional draft into 11
\nlanguages. The draft was also printed in Braille and recorded
\nonto tapes for the blind and deaf. Those copies were then made
\navailable for a huge portion of the country's population.<\/p>\n
The result was a people's constitution which was very helpful
\nin the process of democratization, because it helped cure many of
\nthe old wounds. (Former president) Nelson Mandela said the
\nconstitution transformed South Africa into a more united nation,
\na more whole nation, one that did not differentiate between black
\nand white, or men and women or any other groups.<\/p>\n
Such a constitution, which has the capability of uniting the
\nwhole nation, can only be produced by a genuine constitutional
\ncommission. What happened in Thailand is similar.<\/p>\n
But our version of a constitutional commission will not be
\nable to minimize the potential for disintegration of the country,
\nbecause the current Constitution is the result of many earlier
\nelitist amendments which exclude many people who are nevertheless
\nrequired to obey it.<\/p>\n
With such limited authority there will just be discussions,
\ncomparative studies and useless documents. Even if the documents
\nare given to the MPR, there are further internal mechanisms in
\nthe MPR that can potentially use to hamper (any further
\nmeasures).<\/p>\n
Who would benefit most from this weak constitutional
\ncommission?<\/p>\n
For the legislators in the MPR, especially those in the
\nworking group that initiated the constitutional amendments, the
\npresent constitutional reforms are considered great achievements
\nregardless of the resulting problems.<\/p>\n
But if the commission was given the authority to change the
\nConstitution, there is the real feat that their achievements
\nwould be negated. There is a suspicion that any change they made
\nwould be overturned.<\/p>\n
Secondly, the reason the constitutional commission was
\nestablished was because of a lack of trust by the people in the
\nworking group, which was considered to have failed to make
\nsignificant amendments. These two interests collide with one
\nanother.<\/p>\n
So regarding who benefits the most, it would be those who set
\nup the commission, those who felt they had contributed to the
\nfirst through the fourth amendments (completed between 1999 and
\n2002). Many of them are content that constitutional reform is now
\ncomplete with just those four watered down amendments. This is
\nlegally incorrect. A constitution must follow the dynamics of its
\ncommunity.<\/p>\n
However, we should also appreciate what they (MPR) have done
\n(with the amendments), such as the direct presidential election,
\nhuman rights protection and the limited military access to a
\npolitical role, which the constitutional commission should adopt
\ninto its draft.<\/p>\n
Suspicions that the commission will undo everything the
\n(legislators) did is exaggerated; once a (genuine) constitutional
\ncommission is established it will also involve full public
\nparticipation, meaning the military, the legislators, and
\nthousands of other groups so everyone would get input.<\/p>\n
Is there any way out of this problem?<\/p>\n
We in the Coalition for a New Constitution (KKB) have taken
\nthe position of rejecting the MPR's version of a constitutional
\ncommission. We see it as useless and just political cosmetics for
\nthe MPR. It does exist, but only in body, not spirit.
\nKKB members will only accept a genuine version of a truly
\nrepresentative constitutional commission. So, because we
\ndisagree in principle with it none of us will ever sit on the
\ncommission, although we have been asked to do so.<\/p>\n
Is there any hope after the next elections?<\/p>\n
There's hope as long as the elections result in reform in the
\npolitical configuration. The problem is, the electoral laws are
\nall so problematic that there have also been fears that the state
\nadministration after 2004 will prolong the existence of the MPR,
\nwhich clearly opposes a real constitutional commission.<\/p>",
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