Constitutional Commission not as big as its name

Sri Wahyuni, The Jakarta Post, Yogyakarta

The 2003 Annual Session of the People's Consultative Assembly (MPR) resulted in a controversial decision on the constitutional commission, a body which most people were hoping would help in the drafting of a new constitution. State administrative law expert Denny Indrayana of Gadjah Mada University, who is also a PhD candidate at the University of Melbourne in Australia, shared his views on the issue. The following is an excerpt of the interview:

Question: Previously there was much enthusiasm about having a constitutional commission such as the one in Thailand, so people could be involved in drafting a new constitution. But the decision on the setup of the commission seemed to be somewhat anticlimactic. Your comment?

Answer: It was to be expected. Basically our MPR is against the idea of a constitutional commission. The issue of the commission was on the table before the amendments to the 1945 Constitution, but it has never been accepted.

In particular, the MPR doesn't support the genuine version of a constitutional commission, whose tasks would include creating a constitution by involving public participation in the widest sense.

What are the shortcomings of the commission that was adopted?

First, regarding the composition. It only states that the commission comprises 31 members, but it has never been specified whether there should be regional representatives, for example. Functional representation is also unclear.

Thailand's Constitutional Drafting Assembly clearly specifies that its 23 members are political and public administration experts, while 76 others are regional representatives. So, there is intellectual representation and regional representation.

In our case, the lack of clarity on the commission's composition creates a loophole for abuse. Although it is said that no legislator may sit on the commission, from a legal point of view this has to be explicitly regulated.

Another concern is the commission's very limited authority. A constitutional commission has to have the right to make a constitution draft and to involve full public participation. But our commission has no such authority. It is only given the right to conduct a comprehensive analysis of the existing Constitution.

A member of the MPR group working on the issue sort of summed up the MPR's approach when he made the point that it was important to analyze all the commas and periods in the Constitution, and whether they were in the right place! Such limited authority will surely distort the exact meaning of a constitutional commission.

Hence the commission is not deserving of its name; it is little more than a focus group to study the Constitution.

Institutionally, too, the commission is very weak. It was not given the authority to relate directly to the MPR. It is only required to report its work to the MPR through the MPR's working committee (BPMPR). So it is subordinate to the BPMPR and not of the MPR. In fact, there is no guarantee that the commission's report will be conveyed to the MPR. The report could just become a useless document piled up on some working committee member's desk.

What might be some of the consequences of such weakness?

These weaknesses will cause the commission to lose its intended spirit as a constitution maker. In a transitional process, a genuine constitutional commission can become a stimulating institution for the birth of a people's constitution. Take the case of South African's Constitutional Assembly.

With its mandate and authority to involve full public participation, it printed its constitutional draft into 11 languages. The draft was also printed in Braille and recorded onto tapes for the blind and deaf. Those copies were then made available for a huge portion of the country's population.

The result was a people's constitution which was very helpful in the process of democratization, because it helped cure many of the old wounds. (Former president) Nelson Mandela said the constitution transformed South Africa into a more united nation, a more whole nation, one that did not differentiate between black and white, or men and women or any other groups.

Such a constitution, which has the capability of uniting the whole nation, can only be produced by a genuine constitutional commission. What happened in Thailand is similar.

But our version of a constitutional commission will not be able to minimize the potential for disintegration of the country, because the current Constitution is the result of many earlier elitist amendments which exclude many people who are nevertheless required to obey it.

With such limited authority there will just be discussions, comparative studies and useless documents. Even if the documents are given to the MPR, there are further internal mechanisms in the MPR that can potentially use to hamper (any further measures).

Who would benefit most from this weak constitutional commission?

For the legislators in the MPR, especially those in the working group that initiated the constitutional amendments, the present constitutional reforms are considered great achievements regardless of the resulting problems.

But if the commission was given the authority to change the Constitution, there is the real feat that their achievements would be negated. There is a suspicion that any change they made would be overturned.

Secondly, the reason the constitutional commission was established was because of a lack of trust by the people in the working group, which was considered to have failed to make significant amendments. These two interests collide with one another.

So regarding who benefits the most, it would be those who set up the commission, those who felt they had contributed to the first through the fourth amendments (completed between 1999 and 2002). Many of them are content that constitutional reform is now complete with just those four watered down amendments. This is legally incorrect. A constitution must follow the dynamics of its community.

However, we should also appreciate what they (MPR) have done (with the amendments), such as the direct presidential election, human rights protection and the limited military access to a political role, which the constitutional commission should adopt into its draft.

Suspicions that the commission will undo everything the (legislators) did is exaggerated; once a (genuine) constitutional commission is established it will also involve full public participation, meaning the military, the legislators, and thousands of other groups so everyone would get input.

Is there any way out of this problem?

We in the Coalition for a New Constitution (KKB) have taken the position of rejecting the MPR's version of a constitutional commission. We see it as useless and just political cosmetics for the MPR. It does exist, but only in body, not spirit. KKB members will only accept a genuine version of a truly representative constitutional commission. So, because we disagree in principle with it none of us will ever sit on the commission, although we have been asked to do so.

Is there any hope after the next elections?

There's hope as long as the elections result in reform in the political configuration. The problem is, the electoral laws are all so problematic that there have also been fears that the state administration after 2004 will prolong the existence of the MPR, which clearly opposes a real constitutional commission.