Checks and balances
It appears that every other bill endorsed by the House of Representatives inevitably ends up becoming a controversy. Two recent cases in point were the bills on the National Education System and on the Composition and Position of the House of Representatives (DPR), the Regional Representatives Council (DPD) and the People's Consultative Assembly (MPR). They were both marred by protests from large and concerned segments in society.
Because these bills were conceived and created with a great many defects, thanks largely to the lack of transparency or thorough public debate, much of the legislation has become difficult, or even impossible, to implement. It is not surprising therefore that many of the new laws eventually had to be sent back to the House for review.
In most cases, the House has been able to ignore protests and objections against newly endorsed bills. Not even the president can stop these bills, defective as they may be, from becoming laws. The president has 30 days to sign a bill into law after it is endorsed by the House. But if she fails to sign it, for whatever reason, the bill automatically becomes a law. All the president can do is delay it for a month.
The Bill on the Constitutional Court, now being debated by the House, seeks to redress this flaw to some extent. At the very least, it seeks to prevent the House from having its way all the time. This is important given the perceptions that the legislative branch has now become an overly powerful state institution, vis-a-vis the executive and judicial branches.
The bill, in the form submitted to the House, proposes certain powers to the court as checks and balances on the DPR, especially when it comes to its legislative function. The most significant, in the context of our debate today, is the power to annul any legislation enacted by the legislative and/or executive branches, if one is deemed to have failed to meet the test of constitutionality.
If the court had already been established, both the education bill and the composition and position of DPR, DPD and MPR bill would be prime candidates for the court's review. Unfortunately, a clause in the constitutional court bill states that new legislation can only be sent to the court for a review within 90 days of its enactment.
Quite a bit of recently endorsed legislation, including the two recent ones that were marred by controversy, would therefore be beyond the scope of the court, if and when it is established. Older legislation that is considered discriminatory would not qualify either because of statutory limitations. In cases like these, it will be left to the public to petition the House to repeal or review new legislation.
Other powers sought for the new constitutional court include settling conflicts between state institutions, endorsing a DPR proposal to impeach the president/vice president, dissolving political parties and settling disputes on the outcome of the general election.
The court's rulings, according to the bill, shall be final and there shall be no recourse for appeal. This effectively takes some power out of the hands of politicians in the (DPR), and puts it in the hands of the top experts on the Constitution, the judges.
As with any law or regulation, legislation is only as effective as the person in charge of carrying it out. The effectiveness of the new constitutional court, to a large extent, depends on the ability of the president, the Supreme Court and DPR, to select and appoint judges who are clean, honest and of the highest reputation. Therein lies the real challenge for the nation: Finding a clean and honest judge can be about as tough as finding the old needle in the haystack.
The call for the establishment of the court was a result of last year's debate on constitutional amendments. The MPR set an August deadline for this court to be established.
Sad to say, both the government and the DPR are creeping along at a snail's pace in deliberating the bill, and they are on the verge of failing to fulfill the MPR mandate. Naturally, the legislators are reluctant to give up power, or share some of the powers they enjoy. But they can only delay the process. The constitutional court, if they legally abide by the MPR mandate, will be established sooner or later.
With all its imperfections and shortcomings, the constitutional court will be a welcome addition to Indonesia's democratic institutions. It will address some of the problems besetting this nation in our march towards democracy. It will strengthen the delineation of power between the executive, legislative and judiciary branches. And, finally, it will strengthen the rule of law in this country.