Constitutional amendments

Constitutional amendments

Satya Arinanto
Lecture and Vice Dean
School of Law
University of Indonesia
Jakarta
arinanto@cbn.net.id

One of the biggest legal issues during 2002 -- and the years
immediately preceding it -- was the question of further amending
the 1945 Constitution.

According to S.E. Finer, Vernon Bogdanor and Bernard Rudden in
their book Comparing Constitutions (1995), constitutions are
codes of norms which aspire to regulate the allocation of powers,
functions and duties among the various agencies and officers of
government, and to define the relationships between these and the
public.

Moreover, K.C. Wheare in his influential book Modern
Constitutions says the word "constitution" is commonly used in at
least two senses in any ordinary discussion of political affairs.

First of all it is used to describe the whole system of
government of a country, the collection of rules which establish
and regulate or govern the government. According to Wheare, the
rules are partly legal, in the sense that courts of law will
recognize and apply them, and partly non-legal or extra-legal,
taking the form of usages, understandings, customs or conventions
which courts do not recognize as law but which are not less
effective in regulating the government than the rules of law
strictly so called.

Theoretically, a modern constitution may be changed through:
(1) certain primary forces; (2) formal amendment; (3) judicial
interpretation; and (4) usage and convention.

The old Article 37 of the 1945 Constitution states: (1) In
order to amend the Constitution, at least two-thirds of the
members of the People's Consultative Assembly (MPR) must be
present; (2) A decision shall be taken with the concurrence of at
least two-thirds of the People's Consultative Assembly's members
present.

Constitutional reform or constitutional amendment is one of
the most important issues raised by various groups in Indonesia,
especially after the resignation of President Soeharto on May 21,
1998. The vague nature of the 1945 Constitution contributed to
the rise of authoritarian dictatorships under both President
Sukarno and Soeharto.

The first and second amendments to the 1945 Constitution,
passed in October 1999 and August 2000, have only begun to
address the fundamental issues of constitutional reform in
Indonesia.

The first amendment to the 1945 Constitution, which was
enacted during one of the sittings of the General Session of the
Assembly on Oct. 19, 1999, consist of nine articles, which inter
alia govern the powers of the House of Representatives (DPR)
as the primary law drafting institution; provide for limitations
on the number of presidential terms; set out the presidential and
vice presidential oaths; place restrictions on the presidential
prerogatives; determine the ambit of ministerial authority; etc.

Moreover, during the same session in October 1999, the
Assembly decided, beginning in 2000, to hold annual sessions for
the purposes of further amending the Constitution, issuing
decrees and evaluating the government's performance.

The 2000 Annual Session convened on Aug. 7, 2000, amid
persistent talk of confrontation between President Abdurrahman
Wahid and the Assembly. In the event, the rumored impeachment did
not take place.

Despite the difficulties encountered, the first Annual Session
agreed on amended text for five chapters of the Constitution: on
local authorities, the House of Representatives, citizens and
residents, defense and security, and national symbols.

In addition, two new chapters on human rights and the national
territory were further amended. The constitutional amendments
contained in the second amendment and several of the Assembly
decrees passed by the 2000 Annual Session can be differentiated
as between four primary themes: (1) civil-military relations; (2)
the separation of powers, and checks and balances; (3) the
decentralization of power to the regions; and (4) a bill of
rights.

Each of these themes contains important changes for the
Indonesian political system.

The problems that arose during the preparations for the first
Annual Session and the failures encountered in processing the
second amendment to the 1945 Constitution raised the issue of the
formation of a Constitutional Commission to amend the
Constitution and to prepare the draft of a new Constitution. This
idea was promoted, among others, by a number of NGOs in
Indonesia. They formed a Coalition of NGOs for a New
Constitution.

But the Assembly seemed to disagree with this idea. But later
developments showed that they had a change of heart. They came up
with many concepts for a Constitutional Commission, but this idea
wasn't decided on during the second Annual Session which was held
in November 2001. Not only that, the factions in the People's
Consultative Assembly were unable to reach a consensus with
regard to some crucial articles in the draft of the third
amendment to the 1945 Constitution. Some articles were finally
enacted as part of the third amendment, dealing with inter alia:
(1) the procedures for the impeachment of the president and the
vice president; (2) the Regional Representatives' Council (DPD);
(3) general elections; (4) the Supreme Audit Council (BPK); and
(5) the Judicial Power (Supreme Court, Constitutional Court, and
Judicial Commission).

In line with these failures, the support for the formation of
a Constitutional Commission to amend the 1945 Constitution is
becoming increasingly strong. A new constitution is needed to
construct the political framework of a new Indonesia. A
Constitutional Commission is needed to eliminate political
meddling in the process of amending the 1945 Constitution.

During the third Annual Session held in August 2002, the idea
of establishing a Constitutional Commission seemed to win the
support of the Assembly, which issued Decree No. I/MPR/2002 on
the Formation of the Constitutional Commission. Apart from that,
during the same session, the Assembly also finalized the latest
raft of constitutional amendments. Among the articles enacted
were those on: (1) the composition of the Assembly; (2) second
round procedures for direct presidential elections; (3) the
Supreme Advisory Council (DPA); (4) education and culture; (5)
the national economy and social welfare; (6) transitory
provisions; and (7) supplementary provisions.

Even though the Assembly decree stated its intention to form a
Constitutional Commission, later developments revealed that some
MPR factions were opposed to the plan. Thus, what will transpire
in the future regarding this Commission is still unclear.

The writer is a former member of the People's Consultative
Assembly's 1st Ad Hoc Committee's Expert Advisory Team on the
Third Amendment to the Constitution