Need for further institutional reform

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.