Lessons from Special Session: Constitutional change urgent
Lessons from Special Session: Constitutional change urgent
To avoid repeated mistakes, the overhaul of the Constitution
should be a consideration, writes political analyst J. Soedjati
Djiwandono.
JAKARTA (JP): The Special Session of the People's Consultative
Assembly (MPR) has put a new light on earlier concerns raised in
this column.
The tug-of-war for the last few months between the members of
the legislative bodies (the House of Representatives and the
Assembly) on one hand, and the executive (then president
Abdurrahman Wahid) on the other, reached its peak at the Special
Session that finally forced Abdurrahman out of office. The
fundamental reason was simply: the president had violated the
Constitution!
Indeed, the Assembly's judgment was right. Still, one could
rightly ask: Was it constitutionally and legally right for the
political party leaders -- including Megawati as chairwoman of
the Indonesian Democratic Party of Struggle (PDI Perjuangan) to
prejudge the absence of any form (possibly in writing, though
probably unlikely) -- of an "accountability report" by the
president, thereby announcing the impending change of national
leadership in the front yard of the then vice president's private
home, rather than in the Assembly forum?
Unfortunately, president Abdurrahman rarely grasped the
essence and importance of realpolitik and often went against the
rules of the game. He did understand that in a way politics is a
struggle for power, and who has greater power is most likely to
win. Yet power may be understood in different ways. When issuing
a decree on suspending the House/Assembly, he ignored the lack of
military support and at least a large part of the police.
In realpolitik, moral power and what he was confident of
possessing at his disposal, "popular power" is not real and
tangible. Hence his downfall. Later he implicitly described
himself as a victim of "tyranny by the majority" in the wake of a
prolonged "controversy over interpretations of the Constitution".
That is an important lesson on one of the "fundamental
defects" of the 1945 Constitution: the absence of a mechanism for
judicial review in our system based on the Constitution. In the
absence of such a mechanism, the Supreme Court issued a legal
opinion, the constitutional basis of which was ambiguous to say
the least, on the illegality of Abdurrahman's decree on
suspending the House/Assembly.
Nevertheless, it would be highly doubtful whether it is now
time to have the power of judicial review vested in the hands of
the Supreme Court before amending, or better still, drastically
changing the present Constitution. People are already so used to
exploiting ambiguous constitutional provisions to serve their own
personal or sectarian interests, or, out of ignorance or lack of
critical thinking, simply going along with the mainstream view,
even if they are seriously wrong.
One such case is the common (mis)understanding of religious
freedom. We claim that the state guarantees religious freedom.
Yet one must have a religion, previously one of the five
"recognized" religions. This obligation to have a religion is
implied in the marriage law that provides that one shall get
married according to one's religion.
For one thing, it is against human rights, particularly
against religious freedom, to require by law that everyone shall
have a religion (implicitly, that is, except if one should want
to remain single or at least officially unmarried all one's
life). For another, the state has no right to determine what is
to be a religion. At this stage a supreme court vested with the
power of judicial review would not likely judge the current
marriage law as unconstitutional.
I am not sure we can afford to have a supreme court vested
with such power when we are yet to develop a common understanding
of human rights and other universal values. For decades
Indonesians have been trained not to be critical and not to be
against the "mainstream", no matter how wrong it may be. We have
been trained to avoid even discussing "sensitive" issues --
particularly religious, ethnic and racial matters.
Another lesson from the recent political stalemate is the
extent to which the 1945 Constitution contradicts democratic
principles. Thus another fundamental defect of our Constitution
is the creation of the Assembly as the supreme governing body in
our political system or system of government. Once elected, the
Assembly in principle has unlimited power for five years. It is
under no control by any institution, except a general election
once every five years.
Moreover, the votes that have put politicians in that
dictatorial institution were carte blanche for five years. And
because the people cast votes for political parties instead of
their representatives, members of this institution do not,
strictly speaking, represent the people, but the political
parties to which they belong.
Thus the Assembly is a recipe for a dictatorship ("legislative
dictatorship" as we have in this reform era), just as Article 2
of the Constitution (before amendment), which in the past
provided the president with the combined executive and
legislative powers, was a recipe for dictatorship by the
president.
Those two weaknesses point to the third, perhaps the most
fundamental defect that epitomizes the basically undemocratic and
dictatorial nature of the 1945 Constitution. If our politicians
did not learn those lessons from recent events revolving around
the country's second Assembly Special Session in history, they
will not learn anything. I am referring to the absence of a
mechanism for effective control in a complex system of checks and
balances, because there is no clear separation of power between
the three branches of government.
They have clearly not really grasped the essential meaning of
reform from the outset. This explains why the politicians have
always tended to put all the blame of the ruins on the New Order
regime entirely or mostly on Soeharto and those around him,
including the Golkar Party and "remnants of the New Order", and
everybody else except themselves. They have not realized the
decisive role of the flawed 1945 Constitution that is so
vulnerable to misinterpretation and controversy because of its
ambiguity and ambivalence, and thus most importantly
manipulation, because of the fundamental defects discussed here.
Only fools would miss the implications for the process of
reform in the days ahead.