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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.