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.