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.