Constitutional change a must

By J. Soedjati Djiwandono

JAKARTA (JP): Reformasi (reform) has been on the lips of everyone since the fall of president Soeharto. Before the elections, it was the almost universal catchword of the political parties, even those most would generally classify as "status quo forces".

If my reading is correct and accurate, however, it is sad to note that no less than 40 of the 48 political parties contesting the elections -- that is, 80 percent of them -- remain committed to the maintenance of the 1945 Constitution. The majority of these have even continued to use the redundant expression "Pancasila and the 1945 Constitution", typical of the language of Soeharto's New Order, as if Pancasila's "five principles" were separate from the 1945 Constitution.

Indeed, the impact of indoctrination and intimidation for over three decades by the New Order regime cannot be underestimated on this obedient and docile nation. Not only was the 1945 Constitution made sacrosanct, but most of us were led to believe that any change to the Constitution would mean betrayal of the cause of Indonesian independence and the ideals of the Indonesian republic. Few would run the risk of being accused -- though falsely -- of betraying those nationalist ideals by challenging the 1945 Constitution.

One easily forgets these simple historical facts: First, the return to the 1945 Constitution was based on no more than president Sukarno's decree of 5 July, 1959. Ironically, this decree was not even confirmed by the Provisional People's Assembly (MPRS) or by successive MPRs to this day. Thus, the whole legal or constitutional basis (or "legitimacy") of the New Order regime, including the Habibie government, has been none other than that very same decree issued by the late president Sukarno.

Second, prior to president Sukarno's decree, the 1945 Constitution was in force, at least theoretically, for not more than a few months after the proclamation of Indonesian independence in 1945. From then on until what is known as the transfer of sovereignty by the Dutch to the Indonesians at the end of 1949, Indonesia was governed by a parliamentary system with no constitutional basis at all.

The parliamentary system continued from the beginning of 1950 under a federal constitution (RIS), and under a provisional constitution (UUDS) from the formation of the unitary Republic of Indonesia later in the same year until 1959, when President Sukarno issued the decree. This decree not only dissolved the first-ever truly elected parliament and constituent assembly, but also called for readoption of the 1945 Constitution, the implementation of which, in fact, was never been seriously attempted in the turmoil of the first few months of the nation's struggle for independence.

We should have learned that the reintroduction of the 1945 Constitution led, in effect, to a dictatorship under the name of "guided democracy". In hindsight, it was probably only the shrewd Soeharto who learned that lesson and used it to serve his own interests in building his own style of dictatorship under the name New Order. Hence his apparent strict adherence to the 1945 Constitution, to the letter if not to the spirit, and thus his continued use of Sukarno's decree. That the New Order was a "total correction to all the deviations of the Old Order" with Pancasila and the 1945 Constitution to be the justification, and thus the legitimacy, of Soeharto's New Order, with all its dire consequences nation has suffered to this very day.

The nation must not repeat the same mistake. It should learn the right lesson and get the right message from the experiences of both the New Order and the Old Order. It is clear that the 1945 Constitution contains within itself its own weaknesses that can be open to abuse, manipulation and exploitation. It is a recipe for dictatorship, and thus for disaster, for it does not provide a mechanism of effective control, for power sharing or power distribution, for separation of powers and thus for a system of checks and balances.

It is the main challenge for the new representatives of the people, freely elected by the people for the first time in almost half a century. Amendments to the 1945 Constitution, though never attempted before and most likely difficult enough, would not suffice because of inherent serious weaknesses and shortcomings in the document.

What we do need is a new constitution if we wish for a healthier system of democracy that truly respects human dignity and human rights, strives for general welfare, equality and justice for all, instead of a system that only serves sectarian interests, be they of a majority or minority, be they on grounds of racial, ethnic, religious, cultural, or linguistic backgrounds. We have had enough of perennial sectarian tensions and conflicts, in which no one wins and everyone suffers, for more than half a century.

Indeed, if for the wrong reasons, President Habibie has of late suggested a direct election of the president. For certain other reasons that are relevant here, the idea deserves serious consideration, for it may well serve as a point of departure toward constitutional change.

First, direct election of the president would mean direct participation of the people. Secondly, the MPR, which would otherwise elect the president and determine the broad guidelines of state policy, the mandate for the president to implement, would not be needed on both counts. Instead, the directly elected president would offer his own polity to the electorate, and would be responsible to the Constitution.

Thirdly, there would be no need for an MPR, the supreme governing body in the system provided by the 1945 Constitution, with unlimited powers, and under no control whatsoever except through an election once every five years. Instead, the MPR may be split into two chambers, both elected directly by the (local) electorate, one on a constituency basis, the other on regional basis.

Preferably, the electoral system should be changed from proportional to district or single-member constituency system. It is these two bodies that legislative powers are to be vested. All in all, these would establish a system of checks and balances with separation of powers between the legislative, the executive and the judicial branches of government.

We must not miss this golden opportunity to really carry out the mandate of the people for genuine total and fundamental reform. The representatives of the people would need adequate knowledge and understanding of reform and its overall implications, moral courage, political will and the necessary skill to go about it. Otherwise, we will be back to square one.

The writer is a political observer based in Jakarta.

Window: Amendments to the 1945 Constitution, though never attempted before and most likely difficult enough, would not suffice because of inherent serious weaknesses and shortcomings in the document.