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