Constitutional change a must

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.