On impeaching the president

On impeaching the president

By M. Fajrul Falaakh

JAKARTA (JP): President Abdurrahman Wahid has been heavily
criticized in recent weeks, especially for his idea to revoke a
24-year-old ban on communism.

As the ban is sanctioned by the 1966 decree of the People's
Consultative Assembly, it is not under his authority to repeal
it. Prominent Muslim clerics and the chairman of Nahdlatul Ulama,
Indonesia's largest Islamic organization that Abdurrahman used to
chair, have also dismissed the idea.

On the other hand, the "axis force," a grouping of Islamic-
oriented representations, has suggested that the annual session
of the Assembly, scheduled in August this year, be turned into an
Extraordinary Session to demand Abdurrahman's accountability.

The argument is that he has violated the Constitution, the
Assembly decrees and his presidential authority.

Foreign observers have also argued that the next several
months will be crucial for Abdurrahman's survival.

It has been speculated that the combination of economic drift
and political challenges from the military may lead to a period
of heightened uncertainty in the run-up to the August Assembly
session. A mistake in this argument, however, is the impression
that he will have "to make a key accountability speech" before
the Assembly.

This mistake is reinforced by the fact that former president
B.J. Habibie was forced to relinquish his presidency last
October, following his failure to gain the required majority to
support his accountability report before the Assembly.

The speech was not a mere address. It was an obligatory
accountability speech made at the end of his interim
administration.

The Assembly's General Session in 1999 was also meant to elect
the president and vice president. The Assembly's refusal against
his accountability evidently contributed to his decision to
withdraw his candidacy.

According to Assembly Decree No.2/1999, this year's Assembly
session is not intended to demand the president's accountability.
It is scheduled to evaluate the government's progress report,
which will be presented before the Assembly.

The axis force's political tone has also quickly changed and
Vice President Megawati Soekarnoputri, chairwoman of the
Indonesian Democratic Party of Struggle (PDI Perjuangan), has
pledged her loyalty to Abdurrahman.

Moreover, the president and vice president are
constitutionally appointed for a five-year term.

It seems very unlikely that Abdurrahman will be impeached for
his not-so-performing governance. It can only be speculated that
the Assembly will issue pressing notices on his governance.
Therefore, a constitutional perspective on the impeachment of the
president is needed here. How would it proceed, who would
initiate it and on what grounds?

Impeachment of the president is indeed stipulated in the 1945
Constitution. The president is appointed by the Assembly and is
answerable to it. He is the "mandate" of the Assembly and has the
obligation to implement its decrees under the constant
supervision from the House of Representatives whose members are
concurrently members of the Assembly.

He must therefore "seriously listen" to the opinions of the
House, although he is not answerable to it. If the House views
that the president has violated the general outline of State
Policy Guidelines as stipulated in the Constitution and decreed
by the Assembly, a Special Session of the Assembly can be
convened.

The president is therefore summoned to present his
accountability.

However it is the House who will initiate the impeachment
process. The president must be duly notified by the House and
given the first memorandum of no confidence. If within three
months after the first memorandum has been issued the president
has not complied, or the House is not satisfied with his
performance, the House will then issue the last memorandum to
which the president is given a month to comply with.

If the president continues to transgress the State Policy
Guidelines, or he has still not complied with the memorandum, the
House is in the right position to call for a Special Session of
the Assembly (Article 7 of Assembly Decree No. 6/1973).

This Special Session is meant to demand the president's
accountability. A logical and legal consequence is that the
president can be dismissed from office.

But several problems can arise from the above explanation.
There are no fixed rules to initiate the House's notification or
to cast the vote. Does the dismissal of the president imply the
dismissal of the vice president too?

Why is the vice president automatically dismissed if the one
who has transgressed is the president? Who will then hold the
power of the executive, and for how long?

Unfortunately, Indonesian constitutional law has no
comprehensive answer to these questions. It can be argued that
the vice president cannot automatically be dismissed if the
president is dismissed by the Assembly's Special Session. The
vice president will certainly assume presidency.

If the vice president is forced to also step down from office,
the ministers of home affairs, defense and foreign affairs would
concurrently preside over the government until the new president
and vice president are elected by the Assembly, in line with
Article 5, Clause 2 in the 1973 Assembly Decree.

This might not be the case, since the Assembly in session may
at the same time elect the president and the vice president. If
the Assembly defers the elections and calls for legislative
elections instead, the above triumvirate presides until the
Assembly elects the president and the vice president.

The triumvirate will serve for the remaining tenure of the
chief executive.

Constitutional matters aside, the more pressing issues
President Abdurrahman faces is obviously the concern over the
slow progress of economic and financial reform, the restive
provinces and the establishment of the rule of law.

The writer teaches law at the Gadjah Mada University in
Yogyakarta.