Compromise or impeachment?

Compromise or impeachment?

The headline article in The Jakarta Post of May 3, 2001 cited
the President's speech: "The government, in this case, the
executive, the legislative and the judicial branches, each has
its own business". Of course, this must mean that the House of
Representatives (DPR) should not supervise the President and that
the censure made by the House is unconstitutional. According to
President Abdurrahman "Gus Dur" Wahid it is the People's
Consultative Assembly (MPR) that exercises supervision over the
President. The Post has quoted him as saying: "The MPR's main
task is to monitor the government so that it will not deviate
from the right course".

Gus Dur has failed to understand the 1945 Constitution when he
thinks that the 1945 Constitution purely adheres to the threefold
division of political authority as introduced by Montesquieu,
namely power separation. In fact, the 1945 Constitution adheres
to the principle of power division complete with checks and
balances. Article 14 of the Constitution will illustrate this. It
reads: "The President grants clemency, amnesty, abolition and
rehabilitation". This is an example of the President's
intervention within judicial affairs. Then, pursuant to Article 5
of the Constitution, the President reserves the right to
establish laws (a legislative function) with the approval of the
House.

On the other hand, the House also carries out its supervisory
and budgetary functions, apart from its legislative function as
set forth in Article 20A:1 of the Constitution. The MPR does not
perform its function of exercising control over the President as
this function is performed by the House, as all House members are
members of the MPR (Stipulation of MPR No. III/1978).

Gus Dur is right that under the 1945 Constitution, the
President can only be held accountable by the MPR and not by the
House. However, it must be noted that the House censure is not a
demand for the President's accountability. Theoretically it is
therefore acceptable for the President not to respond to it.
However, if the President ignores this House censure, the House
may ask the MPR to convene a special session to demand that the
President present his accountability report.

So, the belief that a demand for the President's
accountability report can only be made at the end of the
President's term of office is entirely incorrect. It would really
be a golden opportunity if you could siphon off billions of
rupiah and have to account for it only five years later.
According to Prof. Sri Soemantri, the 1945 Constitution does not
adhere to the pure presidential system. The President can be
replaced due to his own demise, or at his own request or
violation of the prevailing Constitution (broad gudelines of the
state's course and the laws). It must be noted that this system
also applies in other countries adopting the presidential system.
Estrada in the Philippines and Richard Nixon of the United States
preferred to resign rather than be impeached by Congress.

In Gus Dur's case, there is a suggestion of a compromise.
Akbar Tandjung has proposed that Gus Dur serve as head of state
and Megawati as head of government, a proposal that the editorial
of the Post of May 3, 2001 lent support to. However, this
proposal could only be effective if the Constitution were
amended. The problem is whether the Constitution should be
amended only to deal with an immediate problem. If Akbar's
proposal is set forth only as a formal decision of the MPR, it
could be declared null and void from a legal viewpoint and Gus
Dur, in his position as President, could reject it on the grounds
that it violates the Constitution.

So, either Gus Dur should be impeached in a special session of
the MPR or voluntarily step down. Finally, however, a proposal
made by a reader of Media Indonesia (Mr. Marsongko), as quoted by
the Post in its May 4, 2001 edition, is worth considering:
Megawati becomes President and Matori Abdul Djalil the Vice
President.

M. IKHSAN

Jakarta