Constitutional change not just MPR's task

Constitutional change not just MPR's task

Eddy O.S. Hiariej, School of Law Gadjah Mada University,
Yogyakarta

Following the fall of then president Soeharto in 1998, the
"sanctity" of the 1945 Constitution, held firmly during the New
Order regime, has been eroded by demands for constitutional
reforms. Unfortunately, the amendments to the Constitution --
commenced since 1999, including the recent Annual Session of the
People's Consultative Assembly (MPR) -- have not clearly
indicated the direction of the changes.

This is due to the patchy and piecemeal work done on the
articles -- rather than a conceptual and comprehensive approach
-- which therefore makes it difficult for anyone to fathom which
way the nation is intending to go.

Euphoric Assembly members, with their newly acquired power,
are one of the causes. On one hand the honorable members always
insist that the amendment of the Constitution is their duty and
within their authority and competence, while on the other hand
they simply do not know where to start from.

This is worsened by the fact that there is an inherent
political interest, which ultimately neglects the greater
interest of the people and the nation. While they may be correct
in the reasons for their claims, it does not automatically mean
that the making of a new constitution or its revisions can only
be executed by the Assembly.

When one refers to the 1945 Constitution on the section
pertaining to its changes, attention will immediately be focused
on Article 37. History records indicate that this article, as
explained by its proposer, Iwa Kusuma Sumantri, is a stipulation
that is commonly included in any constitution.

Revisions in the sense of creating a new constitution as per
the 1945 Constitution are actually stated in Article 3 juncto
Paragraph 2 in the Additional Regulations of the 1945
Constitution. It rules as follows, "The People's Consultative
Assembly establishes the Constitution and state policy
guidelines" (Article 3) and in Paragraph 2, "Within six months
after the Assembly is formed, the Assembly is to convene to
establish the constitution".

If one makes a historic interpretation of the above, it is
clear that what is meant by "to establish the constitution" is
not merely to decide the existing Constitution, but to introduce
a new constitution. This was explicitly expressed by one of the
members of the committee for the preparation of Indonesia's
independence (PPKI), Sam Ratulangi, who was the first person to
propose the stipulation.

Ratulangi stated, " ... the basic intention behind this
stipulation is that within one year of signing the general peace
agreement, the government will submit to the Assembly its
proposal with all information and relevant background or
rationale to renew this Constitution ...".

Based on this analysis, it can be concluded that what is meant
by renewing this Constitution is to make a new constitution.
Furthermore, it is not compulsory that the substance of the new
constitution is prepared by the Assembly, but can originate from
the government.

Therefore, the recent issue on the formation of a
constitutional commission by President Megawati Soekarnoputri has
a sufficiently solid basis. In other words, the making of a new
constitution must be removed from the hands of the Assembly.

This thinking is based on the following considerations:

First, the inherently self-centered political interests at the
Assembly could result in constitutional contents that are
beneficial to certain groups only. For example, the amendment to
Article 3 Paragraph 4 concerning impeachment, which was recently
discussed by the Assembly.

The wording reads, "The Assembly can only discharge the
president and/or the vice president during their tenure according
to stipulations in the Constitution". Obviously, this formulation
is to protect the nation's current leaders, because as recent
experience can tell us, the impeachment of Abdurrahman Wahid was
not based on clear-cut legalities, making it more politically
ambiguous than his implicated involvement in the Bulog (State
Logistics Agency) case.

Second, our Assembly members have not matured politically.
The recent scuffle among the honorable members during the opening
of the Annual Session on Nov. 1 illustrates this best. It not
only embarrassed the Assembly institutionally, but worse than
that, it discredited the entire nation. If the country's decision
makers resort to violence to achieve their own goals, then it
would come as no surprise that the behavior of the elite is
copied by society in general.

Third, the intellectual capacity of members is not adequate
enough to think out the future route of this nation. More so when
one relates to the sort of constitution expected: A durable long-
term constitution and one that is able to absorb dynamism in
society. It should also incorporate better guarantees for basic
human rights and limit the power and authority of the country's
administrators.

The assignment to amend the Constitution should be handed over
to a state commission, whose members are independent, coming from
academic circles and the general public.

The task of this commission is to formulate a new constitution
within a year and during that period its validity is to be tested
by public acceptance, including higher education institutions as,
non-governmental organizations, and the people.

Subsequently, the commission's final draft is to be submitted
to the Assembly to be finally promulgated as the country's new
constitution.