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.