Constitutional politicking looms

Constitutional politicking looms

By Makmur Keliat

JAKARTA (JP): If we speak of a political transition from an
authoritarian to a democratic system, two words always come to
mind -- freedom and order. These two words also reflect a classic
dilemma faced by developing countries when trying to improve
their democracies.

It is not unusual to find that when an authoritarian leader is
ousted from power, subsequent political freedoms gained by the
people are badly managed, and help actuate a misguided democracy.

A misguided democracy is said to have appeared if because of
the new political freedoms, the abundance of information
available to the public ironically leads to opposition to
democracy itself.

Rather than enlightening the people through political
discourses, the political freedom paradoxically will tempt the
political elite from all groups to manipulate the information for
the purpose of their vested interests.

Freedom of speech will be misused and tends to be understood
as a freedom to defame. This situation will sometimes result in
the "character assassination" of certain leaders or groups.

"The assassinated leader" is certainly still alive
biologically, but she or he will be considered a nobody socially.
If the situation takes place in a diverse society and exists for
a long time, the society itself will be plagued by an information
war, and sectarian conflicts within the society will readily
break out.

A misguided democracy can become one of the reasons behind the
reassertion of authoritarian rule. The misuse of freedom would
drive a ruling government to reemphasize order and disregard
freedom. In the name of national security and stability,
information would be brutally censored by the government, state
ideology would be enforced as the ultimate truth and decision-
making processes at the national level would become increasingly
personalized.

In fact, if considered from a historical point of view,
Indonesian politics has had substantial experience worshiping
order over freedom. The strategy appeared for the first time in
1959, when the late president Sukarno abolished the
parliamentarian system of government and, instead, popularized
the concept of "guided democracy". Soeharto, who succeeded
Sukarno in 1966, introduced the concept of "Pancasila (state
ideology) democracy". Though he claimed to be different from
Sukarno, the actions of his administrations for more than 30
years showed the public that Pancasila democracy is nothing less
than another name for a guided democracy.

A failure to strike a balance between freedom and order
creates a stumbling block for nations to evolve sustainable
democracies.

Currently, Indonesia faces a similar problem. After Soeharto
stepped down, the question is how should freedom be managed so
that people will not fall into the trap of misguided democracy?

Similarly, how should order be arranged so that the government
will not indulge in abuses of power?

First of all, we need to be fully aware that there should be
certain limitations on what we mean by freedom. Freedom need not
be understood as freedom in everything, nor related to the
expression "as free as a bird". It certainly does not mean that
order should take priority over freedom.

Indeed, as Kenneth Janda (1992) eloquently said, the question
of striking a balance between freedom and order will depend on
"how much freedom a citizen must surrender to the government".
For this reason, if a nation seriously wants to evolve a
democratic society, a legal framework within which the limits of
freedom are arranged is necessary. In other words, it is out of
the question for a nation to nurture a sustainable democracy if
people deny the importance of a legal framework.

As a rule of thumb, the primary source of law is a
constitution, to which the rest of a country's laws must be
subservient. The great emphasis on a constitution also implies
the spirit of constitutionalism. What we mean by this term is
that a constitution constrains arbitrary will.

The power of a government, be it in the form of a monarchy or
a republic, is limited. Accordingly, it is through a constitution
that people will come to know the limits of freedom and order.
People respect freedom not for the sake of freedom. Similarly,
people need order not for the sake of order.

In the context of democracy, one could also say that a
constitution is analogous to a level playing field, on which all
political groups are bound to play the game.

In contrast, those who are not playing the game will be
berated and penalized. As such, constitutionalism can be
considered an integral part of democracy.

It is noteworthy, however, that constitutionalism is not a
panacea. The reason for this is simple. Articles of the
constitution itself are open to various interpretations.

The emergence of various terms, such as constitutional regime,
unconstitutional government, constitutional decision or
unconstitutional policy, is a case in point. The use of such
terms normally crops up in public discussions when executive or
legislative organs of a government issue ordinary laws
encompassing broad aspects of public interest.

In a country with an established democracy, such as the United
States, the question of whether a government regulation or an
ordinary law contravenes the constitution is mediated and solved
by an independent judicial institution, namely the Supreme Court.
The Supreme Court, through the judicial review process, has a
sole mandate to make a judgment. Neither the executive nor the
legislative institutions has such a mandate.

It is expected that through the judicial review process, the
abuse of the constitution by any group can be averted.

If a mechanism for a judicial review is absent, as in the case
of Indonesia, the constitution loses its relevancy, because the
issue is not discussed in a legal area, falling instead into the
political domain. What results is merely constitutional politics.
What we mean by this term is that the constitution has departed
from its original meaning.

From a legal point of view, a constitution is developed to
create checks on a government in the exercising of its power and
authority. However, it has also been used by a ruling government
to stay in power and to stem the rising tide of political change.
As such, a constitution's role as a legal framework to balance
order and freedom would cease to exist, since it would tend to
tip the scales against freedom.

Following the general election, the danger of constitutional
politics looms in Indonesia. As the 1945 Constitution only cites
that the People's Consultative Assembly (MPR) will elect a
president based on suara terbanyak (the most votes), attempts
have been made to shape public opinion by popularizing the idea
that suara terbanyak means a clear majority.

One can then pose a question: why is such an idea raised? If a
clear-cut requisite is not cited in the Constitution, what has
motivated popularization of the idea? Why do detractors avoid the
real meaning of suara terbayak -- that a presidential candidate
can win with pluralitic support?

In the context of constitutional politics, it is not difficult
to trace the reason. It seems the idea was launched as a
deliberate effort to play down the results of the recent
elections.

The objective is clear. A loophole in the Constitution is
being exploited politically to block the Indonesian Democratic
Party of Struggle's (PDI Perjuangan) chairwoman Megawati
Soekarnoputri's road to the presidency.

It is for this reason that her opponents are also trying to
play a numbers game by arguing that PDI Perjuangan cannot not
gain a clear majority in the People's Representative Assembly
(DPR) and that the members of the MPR, as stipulated by the new
political law, comprise 700 members, of which only 462 members
are elected from the recent polls.

Actually, by putting forward such figures, they are trying to
confuse and mislead people, because they are hiding the fact that
PDI Perjuangan gained a large majority of the vote in the recent
general election.

In so doing, they seem to have fallen into the trap of a
misguided democracy. This is certainly not a positive signal for
Indonesia's political development.

Psychologically, such a move would lead to disastrous results
for Indonesia as a nation. It is likely that people would face
inner feelings of conflict and frustration, because the value
system acquired by people in society was in conflict with the
behavioral patterns of the ruling elite.

People will ask what were the elections for if a winner in the
elections is not respected as a winner. There are two kinds of
response should this situation take place. First, is that people
may become apathetic in politics, or alternatively they may take
the law into their own hands.

Should we blame the 1945 Constitution and political laws for
this legal loophole?

We need to note that a constitution and a legal framework are
not everything for an evolving democracy. Of particular
significance are political ethics. The tenets of democracy are
based on an ethical consideration that processes are far
important than results. As a corollary, victory or defeat in an
election is not a great issue. They are the natural results of
democracy.

The virtue of democracy lies in its imperfections, in the
sense that not all parties can win elections. Democratic
elections generate only one winner. So why should we deny a
wining party its right to govern? Or is it the case that the
existing government is not really serious in developing a
democratic society?

The writer is a political scientist living in Jakarta.