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