JP\/7\/TODUNG<\/p>\n
Pat 2 of 2<\/p>\n
Consolidation of Democracy: Challenges of Reform<\/p>\n
Todung Mulya Lubis
\nLawyer
\nJakarta<\/p>\n
A comprehensive constitution in Indonesia would prevent
\ndebates on whether the MPR stipulation implementing the
\nConstitution is legally acceptable or not.<\/p>\n
A reading of the First, Second and Third Amendments of the
\n1945 Constitution does not yield the impression that we are in
\nthe process of drafting a comprehensive constitution along a
\nclear democratic paradigm.<\/p>\n
Even though the MPR decrees that the president and the vice
\npresident will have to go through direct voting by eligible
\nvoters, it is not clear what will happen if there is no candidate
\nwinning 50 percent or more of the votes. This means that it is
\nvery likely that a second round of elections will be held at the
\nMPR by MPR members enjoying the biggest number of votes.<\/p>\n
Should this happen, the democracy we all wish for will again
\nbe discarded by an undemocratic power system.<\/p>\n
Another thing that may be interpreted as undemocratic is the
\nconfinement of presidential and vice presidential candidates to
\nmembers of political parties and\/or a merger of political
\nparties.<\/p>\n
Article 6a (2) of the Third Amendment stipulates: \"The pair of
\npresidential and vice presidential candidates shall be proposed
\nby a political party or a merger of political parties taking part
\nin the general election prior to the implementation of the
\ngeneral election.\"<\/p>\n
This article closes the door to independent candidates who do
\nnot belong to any political party, while a citizen is entitled to
\nnominate themselves or be nominated for public office if this
\nperson is capable, according to the law.<\/p>\n
It, therefore, takes away political rights from those outside
\npolitical parties, even though political rights are human rights
\nguaranteed by the Constitution. This article also does not allow
\nfor better and more qualified presidential and vice presidential
\nnominees than those coming from political parties.<\/p>\n
If the drafter of the amendment could understand that the wind
\nof democratization is blowing throughout the planet, he would
\nrealize that practicing democracy is not the monopoly of a
\npolitical party. People who opt not to join any political party
\nwould have a legitimate and constitutional right to join
\npolitical activities and receive other constitutional guarantees.<\/p>\n
Another thing also ignored by the drafters of the amendment is
\nthe likelihood of establishing a local party. This party would
\nhave its activities in one or two regions only because they just
\nwant to concentrate on the regions, or because they do not think
\nthey are ready for the national political arena.<\/p>\n
In Germany, the Green Party began as a local party before
\nfinally taking part in national politics as a national political
\nparty. So, if in West Sumatra, for example, there is a Ninik
\nMamak Party (party of elders) only concerned with the development
\nof West Sumatra, this should be considered legitimate.<\/p>\n
Perhaps, in the spirit of regional autonomy, this party might
\nlike to hold the position of governor or regent and influence the
\nregion's administrative system?<\/p>\n
In terms of substance, we can raise questions about many
\nthings in all these ratified amendments, for example, the
\nConstitutional Court, the process of impeachment, human rights,
\nand so forth. Unfortunately, the grammar of a number of articles
\nin the amendment are puzzling and confusing. For example, Article
\n22e (3) and (4), which read:<\/p>\n
\"Voters in the general election to elect members of the House
\nof Representatives and members of the regional legislative
\nassembly shall be political parties.\"<\/p>\n
\"Voters in the general election to elect members of the
\nregional representative assembly shall be individuals.\"<\/p>\n
If Article 22e (3) is carefully read, one may get the
\nimpression that it is the political party that elects members of
\nthe House of Representatives and the regional legislative
\nassembly.<\/p>\n
Who has the right to elect, a political party or a citizen as
\nan individual? Strangely, members of a regional representative
\nassembly will be elected by individuals.<\/p>\n
Why are those electing members of the House and the regional
\nlegislative assembly different from those electing members of the
\nregional representative assembly?<\/p>\n
Are those drafting the Amendment talking about the origin and
\nqualification of members of the House, the regional legislative
\nassembly and the regional representative assembly? If so, why is
\nthe word \"elect\" used in Article 22?<\/p>\n
The inconsistency of articles, clumsy grammar and a non-
\nparticipatory process are all factors supporting the demand that
\na Constitutional Commission be re-established.<\/p>\n
The excuse that such a commission is too late is unacceptable
\nbecause if our political elite are really sincere and willing, a
\nConstitutional Commission could work 240 days a year like in
\nThailand.<\/p>\n
There should be no fear that the amendment has \"gone too far\"
\nor that the unitary state of the republic will disappear.<\/p>\n
Popular sovereignty is popular sovereignty. With or without
\nchanges to the Constitution, it would be beyond the power of any
\ngovernment from stopping people exercising this right. So, stop
\nscaring people away and let's start to assume an honest attitude
\ntowards ourselves: Are we to build popular sovereignty,
\ndemocracy, the supremacy of the law and human rights? Or, should
\nwe return to the authoritarian past where law and truth depended
\nupon the generosity of the ruler?<\/p>\n
The new Constitution will not be a very effective panacea but
\nif drafted comprehensively through a participatory process, it
\nwill be able to serve as a new social contract that brings with
\nit new hope for our future, the future of our children and that
\nof our grandchildren.<\/p>",
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