JP/7/TODUNG
JP/7/TODUNG
Pat 2 of 2
Consolidation of Democracy: Challenges of Reform
Todung Mulya Lubis
Lawyer
Jakarta
A comprehensive constitution in Indonesia would prevent
debates on whether the MPR stipulation implementing the
Constitution is legally acceptable or not.
A reading of the First, Second and Third Amendments of the
1945 Constitution does not yield the impression that we are in
the process of drafting a comprehensive constitution along a
clear democratic paradigm.
Even though the MPR decrees that the president and the vice
president will have to go through direct voting by eligible
voters, it is not clear what will happen if there is no candidate
winning 50 percent or more of the votes. This means that it is
very likely that a second round of elections will be held at the
MPR by MPR members enjoying the biggest number of votes.
Should this happen, the democracy we all wish for will again
be discarded by an undemocratic power system.
Another thing that may be interpreted as undemocratic is the
confinement of presidential and vice presidential candidates to
members of political parties and/or a merger of political
parties.
Article 6a (2) of the Third Amendment stipulates: "The pair of
presidential and vice presidential candidates shall be proposed
by a political party or a merger of political parties taking part
in the general election prior to the implementation of the
general election."
This article closes the door to independent candidates who do
not belong to any political party, while a citizen is entitled to
nominate themselves or be nominated for public office if this
person is capable, according to the law.
It, therefore, takes away political rights from those outside
political parties, even though political rights are human rights
guaranteed by the Constitution. This article also does not allow
for better and more qualified presidential and vice presidential
nominees than those coming from political parties.
If the drafter of the amendment could understand that the wind
of democratization is blowing throughout the planet, he would
realize that practicing democracy is not the monopoly of a
political party. People who opt not to join any political party
would have a legitimate and constitutional right to join
political activities and receive other constitutional guarantees.
Another thing also ignored by the drafters of the amendment is
the likelihood of establishing a local party. This party would
have its activities in one or two regions only because they just
want to concentrate on the regions, or because they do not think
they are ready for the national political arena.
In Germany, the Green Party began as a local party before
finally taking part in national politics as a national political
party. So, if in West Sumatra, for example, there is a Ninik
Mamak Party (party of elders) only concerned with the development
of West Sumatra, this should be considered legitimate.
Perhaps, in the spirit of regional autonomy, this party might
like to hold the position of governor or regent and influence the
region's administrative system?
In terms of substance, we can raise questions about many
things in all these ratified amendments, for example, the
Constitutional Court, the process of impeachment, human rights,
and so forth. Unfortunately, the grammar of a number of articles
in the amendment are puzzling and confusing. For example, Article
22e (3) and (4), which read:
"Voters in the general election to elect members of the House
of Representatives and members of the regional legislative
assembly shall be political parties."
"Voters in the general election to elect members of the
regional representative assembly shall be individuals."
If Article 22e (3) is carefully read, one may get the
impression that it is the political party that elects members of
the House of Representatives and the regional legislative
assembly.
Who has the right to elect, a political party or a citizen as
an individual? Strangely, members of a regional representative
assembly will be elected by individuals.
Why are those electing members of the House and the regional
legislative assembly different from those electing members of the
regional representative assembly?
Are those drafting the Amendment talking about the origin and
qualification of members of the House, the regional legislative
assembly and the regional representative assembly? If so, why is
the word "elect" used in Article 22?
The inconsistency of articles, clumsy grammar and a non-
participatory process are all factors supporting the demand that
a Constitutional Commission be re-established.
The excuse that such a commission is too late is unacceptable
because if our political elite are really sincere and willing, a
Constitutional Commission could work 240 days a year like in
Thailand.
There should be no fear that the amendment has "gone too far"
or that the unitary state of the republic will disappear.
Popular sovereignty is popular sovereignty. With or without
changes to the Constitution, it would be beyond the power of any
government from stopping people exercising this right. So, stop
scaring people away and let's start to assume an honest attitude
towards ourselves: Are we to build popular sovereignty,
democracy, the supremacy of the law and human rights? Or, should
we return to the authoritarian past where law and truth depended
upon the generosity of the ruler?
The new Constitution will not be a very effective panacea but
if drafted comprehensively through a participatory process, it
will be able to serve as a new social contract that brings with
it new hope for our future, the future of our children and that
of our grandchildren.