Pressing need for further institutional reform<\/p>\n
J. Soedjati Djiwandono, Jakarta<\/p>\n
It may sound incongruous to talk about institutional reform
\nwhen the government is preoccupied with important external issues
\nas the dispute between Malaysia and Indonesia over Ambalat, and
\nthe Asian-African Summit.<\/p>\n
I believe, however, that the efficiency and effectiveness of
\nthe government's policies in dealing with both the serious
\ndomestic problems and equally tricky external problems in our
\nforeign policy are closely related by the extent by which our
\npolitical system works, in particular, how the different
\ninstitutions operate as part of a complex system of checks and
\nbalances. Indeed, in the past many of us Indonesians were taught
\nto be proud -- rather than ashamed -- of the fact that we did not
\nfollow the principle of the separation of powers. Since the onset
\nof the \"era of reform\" after the fall of the New Order, however,
\nwe have begun to learn to accept the sound principle of the
\nseparation of powers among the three branches of government,
\nnamely the executive, the legislature and the judiciary.<\/p>\n
There are indications, though, that this arrangement, which
\nprovides a complex system of checks and balances among the three
\nbranches of government, is not well understood here. One
\nindication of this is that we hear few Indonesian politicians, if
\nany, pronounce the term correctly: \"Checks and balance\" is the
\nnormally way they say it, probably thinking that they have
\npronounced the phrase correctly, for both words end in the \"s\"
\nsound, as if already in the plural form.<\/p>\n
The second is that they seem to understand the principle of
\nchecks and balances in terms of a dual relationship only between
\nthe Executive and the Legislature. They tend to forget how this
\nrelationship also involves the Judiciary.<\/p>\n
The working of the complex system of checks and balances in
\nthe U.S. may be one of the best models that we can learn from.
\nCongress passes bills, but the bills do not become law until
\nsigned by the President -- check. In case of a veto by the
\nPresident, Congress can override that veto by a two-thirds
\nmajority of both chambers sitting in joint session -- checkmate.<\/p>\n
The President nominates cabinet members, judges, and
\nambassadors, but the nominees cannot assume their posts until
\nconfirmed by the Senate -- check. The president negotiates a
\ntreaty with a foreign country or countries, but the treaty does
\nnot become the law of the land until approved by two-thirds of
\nthe Senate -- check again. One can almost see the system in
\nmotion. Indeed, though this seems a prescription for
\ninefficiency, the system was designed deliberately to prevent any
\none of the three branches from accumulating power.<\/p>\n
While the Supreme Court does not make legislation, it plays a
\nvital role in the legislative process. The principle of judicial
\nreview lets the Court examine federal laws to determine if they
\nare consistent with the Constitution. The Supreme Court is the
\nfinal arbiter in cases involving constitutional law. Its rulings
\ndetermine the limits of police powers, rights vis-a-vis the
\nPresident, the powers of the presidency, and on and on. Its role
\nis nothing less than the setting of the limits of freedom in the
\nU.S.<\/p>\n
In Indonesia, the position of our Supreme Court is more or
\nless the same as that of the Supreme Court in the U.S. However,
\nit is not that easy for this institution to take decisions in
\ncases of judicial review as there is as yet no national consensus
\non the values and principles that are contained in the
\nConstitution of 1945, particularly in its Preamble.<\/p>\n
Indonesians are particularly ambivalent on the issue of
\nreligious freedom, resulting in confusion between right and
\nobligation. Everyone seems to agree on the right to freedom of
\nreligion. Yet, the marriage law requires that one is to marry
\naccording to one's religion. This not only bars an atheist, if he
\nis brave enough to admit the fact that he is an atheist, from
\ngetting married, but it also prohibits religiously mixed
\nmarriage. When asked if Indonesia is a secular or theocratic
\nstate, one's answer is invariably \"neither\". Prof. Bill Liddle
\nhas coined interesting terms to refer to this particular
\nambivalent attitude, namely \"incompleteness\" or \"inbetweenness\".
\nThis also applies to the National Education Law, which makes
\nreligious education compulsory.<\/p>\n
The main reason for making the preamble to the Constitution
\nsacrosanct arise from the inability or unwillingness to resolve
\nthat ambivalence in such a way as to avoid conflict. However, it
\nhas turned out to be counter-productive. Different groups try to
\nbenefit from that very ambivalence so as to further their own
\npolitical interests. Tension and conflict becomes unavoidable.<\/p>\n
Since the \"era of reform\", despite amendment of the 1945
\nConstitution, the political system does not seem to be
\nfunctioning much better. Indeed, one of the weaknesses of the
\n1945 Constitution before being amended was that it enshrined the
\nPeople's Consultative Assembly (MPR) as the supreme governing
\nbody. The amendment Constitution has stripped the MPR of all its
\npowers.<\/p>\n
Nevertheless, we still maintain the institution, with its only
\nfunction now being for its speaker to swear in the President and
\nVice President, a function the Chief Justice of the Supreme Court
\ncould perform. Now, the MPR consists of the House of
\nRepresentatives (DPR) as before, plus a newly established Council
\nof Regional Representatives (DPD). Strangely, however, the DPD has
\nno right to take part in decision-making. It can only (and is
\nthus far not obliged to) provide considerations, and even this
\nright is limited to issues concerning the regions, and excludes
\nnational and foreign policy issues. In fact, anybody can put
\nforward considerations and advice without wasting taxpayers'
\nmoney on an election and paying the salaries of those elected.<\/p>\n
Interestingly, even our current President does not seem to be
\naware of the implications of this institutional reform. The
\nPresident is no longer subordinate to the MPR. Yet when meeting
\nthe speaker of the MPR -- not clear at whose initiative -- the
\nPresident went to meet him at the MPR building instead of the
\npresidential office. This might look trivial, but it serves to
\nindicate uncertainty in the relationship between state
\ninstitutions in constitutional terms. In the U.S., in terms of
\npower and prestige, the President sits on the summit in U.S.
\npolitics. The Senate comes second, and the House of
\nRepresentatives third.<\/p>\n
The writer is a political analyst.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/pressing-need-for-further-institutional-reform-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }