Need for further institutional reform

J. Soedjati Djiwandono Jakarta

It may sound incongruous to talk about institutional reform when the government is preoccupied with important external issues as the dispute between Malaysia and Indonesia over Ambalat, and the Asian-African Summit.

I believe, however, that the efficiency and effectiveness of the government's policies in dealing with both the serious domestic problems and equally tricky external problems in our foreign policy are closely related by the extent by which our political system works, in particular, how the different institutions operate as part of a complex system of checks and balances. Indeed, in the past many of us Indonesians were taught to be proud -- rather than ashamed -- of the fact that we did not follow the principle of the separation of powers. Since the onset of the "era of reform" after the fall of the New Order, however, we have begun to learn to accept the sound principle of the separation of powers among the three branches of government, namely the executive, the legislature and the judiciary.

There are indications, though, that this arrangement, which provides a complex system of checks and balances among the three branches of government, is not well understood here. One indication of this is that we hear few Indonesian politicians, if any, pronounce the term correctly: "Checks and balance" is the normally way they say it, probably thinking that they have pronounced the phrase correctly, for both words end in the "s" sound, as if already in the plural form.

The second is that they seem to understand the principle of checks and balances in terms of a dual relationship only between the Executive and the Legislature. They tend to forget how this relationship also involves the Judiciary.

The working of the complex system of checks and balances in the U.S. may be one of the best models that we can learn from. Congress passes bills, but the bills do not become law until signed by the President -- check. In case of a veto by the President, Congress can override that veto by a two-thirds majority of both chambers sitting in joint session -- checkmate.

The President nominates cabinet members, judges, and ambassadors, but the nominees cannot assume their posts until confirmed by the Senate -- check. The president negotiates a treaty with a foreign country or countries, but the treaty does not become the law of the land until approved by two-thirds of the Senate -- check again. One can almost see the system in motion. Indeed, though this seems a prescription for inefficiency, the system was designed deliberately to prevent any one of the three branches from accumulating power.

While the Supreme Court does not make legislation, it plays a vital role in the legislative process. The principle of judicial review lets the Court examine federal laws to determine if they are consistent with the Constitution. The Supreme Court is the final arbiter in cases involving constitutional law. Its rulings determine the limits of police powers, rights vis-a-vis the President, the powers of the presidency, and on and on. Its role is nothing less than the setting of the limits of freedom in the U.S.

In Indonesia, the position of our Supreme Court is more or less the same as that of the Supreme Court in the U.S. However, it is not that easy for this institution to take decisions in cases of judicial review as there is as yet no national consensus on the values and principles that are contained in the Constitution of 1945, particularly in its Preamble.

Indonesians are particularly ambivalent on the issue of religious freedom, resulting in confusion between right and obligation. Everyone seems to agree on the right to freedom of religion. Yet, the marriage law requires that one is to marry according to one's religion. This not only bars an atheist, if he is brave enough to admit the fact that he is an atheist, from getting married, but it also prohibits religiously mixed marriage. When asked if Indonesia is a secular or theocratic state, one's answer is invariably "neither". Prof. Bill Liddle has coined interesting terms to refer to this particular ambivalent attitude, namely "incompleteness" or "inbetweenness". This also applies to the National Education Law, which makes religious education compulsory.

The main reason for making the preamble to the Constitution sacrosanct arise from the inability or unwillingness to resolve that ambivalence in such a way as to avoid conflict. However, it has turned out to be counter-productive. Different groups try to benefit from that very ambivalence so as to further their own political interests. Tension and conflict becomes unavoidable.

Since the "era of reform", despite amendment of the 1945 Constitution, the political system does not seem to be functioning much better. Indeed, one of the weaknesses of the 1945 Constitution before being amended was that it enshrined the People's Consultative Assembly (MPR) as the supreme governing body. The amendment Constitution has stripped the MPR of all its powers.

Nevertheless, we still maintain the institution, with its only function now being for its speaker to swear in the President and Vice President, a function the Chief Justice of the Supreme Court could perform. Now, the MPR consists of the House of Representatives (DPR) as before, plus a newly established Council of Regional Representatives (DPD). Strangely, however, the DPD has no right to take part in decision-making. It can only (and is thus far not obliged to) provide considerations, and even this right is limited to issues concerning the regions, and excludes national and foreign policy issues. In fact, anybody can put forward considerations and advice without wasting taxpayers' money on an election and paying the salaries of those elected.

Interestingly, even our current President does not seem to be aware of the implications of this institutional reform. The President is no longer subordinate to the MPR. Yet when meeting the speaker of the MPR -- not clear at whose initiative -- the President went to meet him at the MPR building instead of the presidential office. This might look trivial, but it serves to indicate uncertainty in the relationship between state institutions in constitutional terms. In the U.S., in terms of power and prestige, the President sits on the summit in U.S. politics. The Senate comes second, and the House of Representatives third.

The writer is a political analyst.