1945 Constitution 'undemocratic'

1945 Constitution 'undemocratic'

By Asip Agus Hasani

YOGYAKARTA (JP): Every time the 1945 Constitution, drawn up by
well-intending founding fathers, is put into practice, the
government becomes undemocratic, says M. Mahfud, a lecturer of
law at Gadjah Mada University here.

Increasingly, calls have been raised to amend the Constitution
as part of the country's move toward democracy. In an interview
with The Jakarta Post last week, Mahfud touched on necessary
changes to the document, not only regarding the presidency, but
also other state institutions. The following are excerpts from
the interview:

Question: How do you view the current debate on amending the
1945 Constitution?

Answer: Academics have long judged the 1945 Constitution as
undemocratic... it does not fulfill the complete requirements
for a modern democratic constitution.

First, it has no strict limitations on the power of state
institutions, either in imposing a strict time element on their
service or defining the scope of their authority.

It is this factor which leads to the excessive power of the
presidency, which is beyond the control of other institutions,
while the uncertainty of how long (a president) can stay in power
enables a president to be reelected an indefinite number of
times.

Second, the 1945 Constitution does not clearly protect human
rights. It says human rights are protected, but they are
regulated by laws. Again, it is the president, not the House of
Representatives, which is the dominant force in making laws.

Our political history shows there is a common thread of the
government always becoming authoritarian and centralistic when
using the 1945 Constitution.

The government becomes democratic when it is not using the
constitution, as seen during the first years after the republic
was established... and when the Constitution of the United
States of Indonesia took effect in 1950.

In the first years after independence was declared (on Aug.
17, 1945), the president was the sole ruler, with his authority
encompassing all law-making bodies. Bung (brother) Hatta
(Mohammad Hatta), as vice president, issued decree no. 10 which
raised the position of the Indonesian National Committee (KNI).

The Constitution stated the committee was to assist the
president, while the decree made the committee equal to the
presidency, like a parliament.

With this new position, the KNI asked the government to change
the government to a parliamentary system (from the presidential
system). So the system was changed without changing the 1945
Constitution, and became more democratic.

Second, the era of the Constitution of the United States of
Indonesia (RIS) under a parliamentary system established that
sovereignty was not only in the hands of the president, but in
the hands of the House of Representatives and the government.

This constitution guaranteed the existence of state powers
under the principal of trias politica (division of power between
the executive, legislative and judiciary branches).

The 1950 provisional constitution was similar to the RIS
because it was partly inspired by the latter, and it was more
liberal and democratic (than the current Constitution).

Q: There are a number of parties which are not happy with the
prospect of changing the Constitution, including the Indonesian
Democratic Party of Struggle (PDI Perjuangan). What could be
their reasons?

A: (Sources have recently said PDI Perjuangan is still cautious
on the issue -- ed.)

I am surprised at the attitude of PDI Perjuangan, which has so
many intellectuals, including (professor of law) Dimyati Hartono,
(economist) Kwik Kian Gie and others, who I am convinced
understand that this country has always failed to become
democratic every time it used the 1945 Constitution.

But recently there have been encouraging signs that they want
to open a dialog on this issue.

But I think such an attitude (against amending the
Constitution) would arise out of fears of a repetition of past
conflicts between Islamic and nationalist forces. Such parties
fear Islamic forces would impose their type of ideology on the
1945 Constitution if the process of amendment starts.

Actually, such fears are unnecessary because all those who
want an amendment have no problems with the Pancasila state
ideology and the preamble to the Constitution. That's final.

What needs to be amended is the Constitution itself, regarding
the procedure of state practices.

I myself would strongly disagree with changing the state
foundation and the opening of the constitution, as it would pose
further problems.

Other subjects in the Constitution which should remain the
same are the presidential system of government and the unitary
state... What is more acceptable here is a partial, not total,
amendment, of the Constitution... because many people still
place importance in its historical value.

Q: Ideally, how long after the presidential election should an
amendment of the Constitution take place?

A: Maybe one year after a new government is formed. The next
General Session of the People's Consultative Assembly... should
issue a ruling on when the amendment process will take place.

Q: Could this process occur sooner than a year after a new
government is formed?

A: That's possible because the idea is now in place and many
experts and institutes have drawn up drafts of the amendments.
The Gadjah Mada University has (its own drafts) ... from what I
see there are not many differences among the drafts.

The timing is right. With the reform era and with no dominant
political power emerging from the elections, no one will be able
to impose his will on others and the ruling party will have to
accept demands for changes to the Constitution.

Q: Could you elaborate more on the issue of the excessive power
of the president?

A: The constitution is often dubbed "executive heavy", and it
even endows more power to the president in the legislative branch
than it does to the law-making House of Representatives. This is
ridiculous. In reality, the president has 100 percent executive
power and 50 percent or more legislative power.

Not to mention other powers in diplomacy, military, as head of
state and others...

Q: Which parts of the Constitution should be amended?

A: First, that concerning the necessity of interest group
representatives in the People's Consultative Assembly (MPR). They
are no longer needed. We already have political parties. Those
who represent religions or intellectuals may have already chosen
their representatives in the June 7 elections.

What comprises interest groups is not clear. There are
economic groups, which would have already made their choices in
the polls...

The Constitution would need to state that regional
representatives are elected by the people through a simultaneous
election along with the election to pick House members.

The next poll would then need another ballot box for regional
representatives, so the people would choose all MPR members.

Second, the MPR should no longer be regulated by laws, but in
main principles in the Constitution...

Third, the Supreme Court needs changes in at least two
aspects: structural and functional autonomy. Second, it has to be
authorized to conduct judicial reviews to review laws or lower-
level regulations.

This is necessary to avoid laws which are more political
products... with no legal basis.

Fourth, the Supreme Advisory Council (DPA) is no longer
necessary because the president doesn't need such an advisory
body. In reality, the president already has so many advisers. The
advisory council actually resembles one in the Netherlands
government which has already been abolished.

The DPA is actually an aristocratic body which has served more
to legitimize decisions by the president which are political and
issued hastily.

Fifth, the DPR must have the right of confirmation to counter
the power of the president in making laws, for example.

Another example is when the president appoints an ambassador;
this should require confirmation or approval by the House. So
far, the president has appointed and replaced envoys according to
his whim, to the extent that an envoy's post became a gift to
those which served Pak Harto (former president Soeharto).

The president has even been able to form new, unnecessary
ministries to give positions to those who have been of service to
him.

Sixth, instead of the Supreme Advisory Council, the Supreme
Audit Agency (BPK) should be empowered by expanding its network
at the lowest levels. Now the BPK only exists at the national
level and has only nine members, which is clearly silly for an
agency which supervises the financial situation of such a large
country.

Last, the Constitution should make effective all United
Nations conventions on human rights. There are around 22
conventions of which we have ratified only... seven.

A change in the Constitution should list the UN conventions on
human rights made effective here, thus the president would no
longer be left to regulate the conventions in separate laws.

Also, many clauses in the 1945 Constitution are open to
different interpretations. The clause on 'people's economy' could
be understood as an economic structure which is not to the
disadvantage of the people... but a president or a government
could interpret it otherwise, thus justifying nepotism and
collusion...

Regarding the term of the presidency, the Constitution states:
'The term of the president is five years and (the president) can
be reelected.' This is open to various interpretations.

I would take this to mean that a president can serve at the
most two five-year terms, because if the president could be
reelected an indefinite number of times, the phrase 'after that
the president can be reelected' would not be needed.

But Pak Harto always said this was the clause justifying his
repeated reelection. What was more troublesome about the
different interpretations was that the government was
authoritarian and only recognized its own interpretation.

Philosophically, the 1945 Constitution is 'positive thinking'
toward rulers, while a constitution should be based on the
constant suspicion that power tends to corrupt.

This is what leads to the 1945 Constitution's lack of
limitations on power. There was no suspicion (on the part of its
drafters) that a political ruler could be corrupt.