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.