Judicial review may be problematic

Judicial review may be problematic

J. Soedjati Djiwandono, Political Analyst, Jakarta

I have too frequently referred to the three fundamental defects
of the 1945 Constitution: The creation of an institution of
unlimited power, controlled by and accountable to no one, which
is the People's Consultative Assembly (MPR); the absence of a
mechanism for judicial review; and the absence of a separation of
power between the three branches of government, the legislative,
the executive and the judiciary, which helps set up a complex
system of checks and balances.

The successive generations of politicians, particularly since
the onset of Sukarno's "Guided Democracy" to the present, have
had little or no experience in modern democratic processes and
mechanisms. Nor are many of them sufficiently learned in them.

Thus it is understandable if most of them are either unaware
of those fundamental weaknesses of the Constitution, or are aware
of them but have chosen to shut up for fear of "running against
the stream" with all its possible implications -- such as losing
their jobs or the chance of promotion in their careers, as well
as other forms of risk to their lives.

This fear was reinforced by Soeharto's "Pancasila Democracy"
of the New Order, which made the Constitution so sacrosanct as to
make it treason for anyone to temper with it or even to have a
second thought about it.

Before the first amendment, both the executive and legislative
powers were vested in the president. The 1945 Constitution was
thus a recipe for dictatorship. And indeed, it sustained two
dictatorships, one under Sukarno's Guided Democracy and one under
Soeharto's Pancasila Democracy.

Under the first amendment, the legislative bodies (the MPR and
the House of Representatives, DPR) have empowered themselves.
Unlike before, now the DPR can and does initiate legislation.
Previously both the DPR (a larger part of the MPR and with whom
the President was to make law) and the MPR were no more than
rubber stamps for the government's policies. Now, however, with
the empowerment of both the MPR and the DPR, the political system
looks like a system of "parliamentary dictatorship".

Under the presidency of Abdurrahman Wahid, politics was
characterized by a constitutional and legal debate between the
president and the legislature. Without a mechanism for judicial
review, however, Indonesian politics was not unlike a ball game
without an umpire.

Few politicians, unfortunately, are seriously interested in
setting up a mechanism for judicial review, without which no
institution has the power to make the final decision on which
side of the argument was otherwise "constitutional". Unlike in
the United States, for instance, the Supreme Court in Indonesia
has no power of judicial review, except on government regulations
below the rank of law.

Constitutionally, the MPR has the power of judicial review
(called legislative review). However, the MPR has never resorted
to this power, except in the case of presidents Sukarno and
Abdurrahman, who were both alleged to have violated the
Constitution and deviated from the State Policy Guidelines
(GBHN). The two cases resulted in what amounted to the
"impeachment" of the two presidents.

On the issue of judicial review, the MPR has done little. On
the recent occasion of the swearing in of some new members of the
MPR, Speaker Amien Rais said complacently that by the MPR Annual
Session of 2002, Indonesia would have a modern and democratic
constitution. He was referring to the third amendments agreed
upon in the recent Annual Session of the MPR.

Specifically, he made mention of a "constitutional court" that
would have the power of judicial review. This would be a new
judicial institution with a specific task, he said. It would also
be invested with the power to judge the Constitution, in the
event of a constitutional controversy between state institutions,
to dissolve a political party and to have the final say on a
controversy about the results of general elections.

On examination, there are still dozens of constitutional
provisions, pieces of legislation, laws and government
regulations, including presidential decrees, whose consistency
with the Constitution is in serious doubt. Most of these are
discriminatory in nature, and thus against human rights.

The marriage law is one of the notorious examples. It
stipulates that one is to marry according to one's religion,
implying that everyone is to have a religion. It does not allow
interfaith marriages.

Numerous problems have arisen that have made people's lives
miserable because of discriminatory laws and government
regulations that discriminate against people because of their
racial or religious backgrounds. Such legal and constitutional
provisions need to be reviewed and clarified, and then rendered
void or drastically changed first.

A mechanism for judicial review is badly needed. Yet the
problem is dilemmatic. A national consensus is an absolute must
on fundamental principles embodied in the Constitution. The first
principle in the state ideology, belief in God, has always been
controversial. The myth is that it unites this nation marked by
diverse faiths. But the reality is that it has always been a
source of conflict.

The question of whether Indonesia is a theocratic or a secular
state is always answered that it is neither. Indonesians do not
realize the contradiction in the argument that there is freedom
of religion in the country, but everyone must have a religion.

The fourth principle is no less vague. Is voting
constitutional? Or is unanimity the basic characteristic of
Indonesian democracy?

That the president shall be an "indigenous citizen", for
instance, needs to be clarified once and for all. Or else, it may
continue to be interpreted at the cost of Indonesians of Chinese,
Arabic or Dutch stock. In fact, "indigenous" citizens should be
opposed only to "naturalized" citizens.

The word "indigenous" or "native" (asli) was originally used
merely to avoid a Japanese from becoming president in the face of
accusations by the Allied Forces that the new republic (of
Indonesia) was none other than a puppet created by the Japanese
-- very much used by Dutch propaganda in their efforts to
delegitimize the new republic.

Thus no matter how badly the nation needs a mechanism of
judicial review, its creation under the present circumstances
poses a dilemma. It could be counterproductive and dangerous.