Presidential relations with the DPR
The following article is based on a presentation given by Donald L. Horowitz at a seminar on amending the 1945 Constitution. The seminar, held recently in Jakarta, was organized by the University of Indonesia.
JAKARTA: This article will briefly deal with relations between the presidency and the legislature; the legislature itself; adversary or consensual government; decentralization and judicial review.
There is an air of very great hostility to power and a fear of executive power especially. This is only natural, given Indonesians' experience with presidents who turned into dictators.
But I agree with Dr. Pratikno's remarks the other day regarding the need for a "strong and energetic executive", and urge you not to fight the last war and create a weak presidency just because previous presidents, tossing out the Constitution, have become dictators.
The situation is similar to that in the United States in 1787. The framers of the constitution did not want to have a new king, but they did not want a weak government either.
Some delegates, from states with strong state governors, seized the initiative and in two committees drafted Article 2 on the Presidency and presented it as a fait accompli to the Constitutional Convention. By this move, the United States was spared having a weak executive.
The indirect election of the president should not be continued. The House of Representatives (DPR) and the People's Consultative Assembly (MPR) are likely to be fragmented for years to come, and that is good: it reflects the divisions prevailing in the society -- that is what legislatures should do.
But that also means the MPR or its successor will recurrently do what it did in 1999 -- choose a president whose party has minority support in the legislature. If that president then loses the confidence of the fragmented legislature, but still has a fixed term, there will be deadlock and immobilism.
It is difficult enough to operate a parliamentary system with a fragmented parliament; it is much harder to operate a presidential system with a fixed term where the president has no personal mandate, in circumstances of legislative fragmentation. One result is a multiparty Cabinet that is not fully accountable to the president. That is the present situation, and it is not optimal.
If you really want to create a weak presidency, it would be much better to give up on presidentialism altogether and create a parliamentary system. That would be a perfectly defensible choice in Indonesia's circumstances.
The unspoken theme of the earlier proceedings was really the need for parliamentary supremacy. That is OK. Just because Indonesia has customarily had a president, does not mean it must not opt for a parliamentary system now.
But if you want a presidential system, then opt for direct election of the president, and use an electoral system that will get you a president with a broad national mandate, a person with good electoral reasons to behave moderately and to be a centrist on issues that divide Indonesia, so the president can be a unifying figure in the context of a fragmented legislature.
There are such electoral systems available.
Regarding the legislature, it is a mistake to judge institutions one at a time. It is better to think about the ensemble of institutions than to think about each separately. Do you want one House or two? This is not an abstract question.
Bicameralism will be difficult to operate with a fragmented DPR. It will be hard enough to get things done in the DPR, and if the upper house has real powers, it may be very hard to get anything at all done. If your option is for an upper house, make it weak, like the House of Lords, not strong like the U.S. Senate.
On adversary or consensual government, Indonesians do not seem to have noticed, but it is striking to an outsider that the DPR is not divided into government and opposition. The DPR's standing orders provide for election to the speakership, and all the losers then become deputy speakers. (Likewise, the Cabinet is an inclusive one).
And in the DPR there is no leader of the opposition. Indeed, there is no formal opposition at all.
This is one way to run a government, but it does require strong norms of consensual behavior and some mechanism to express opposition within government. This consensual system may not last -- that, as divisive issues come to the fore and as elections approach, there will be much less harmony, and it is probably best to anticipate this by thinking about the legitimacy of opposition within the legislature.
We heard a lot about checks and balances the other day, but in the context of American-style institutions. Parliamentary institutions can also have checks and balances, and one of the most important of these is the formal legitimacy of opposition and the obligation of the government to consult the opposition.
It would also be desirable if parties did not break along lines of Muslim versus secular. It would be nice to blur that line of division that follows the aliran of Indonesian society.
In the last couple of years, Indonesians have tended to fear fragmentation along the lines of 1955, rather than polarization along the lines of 1965. Both are dangers.
On the issue of decentralization, it is hard to believe that devolution and regional autonomy will provide an impetus to secessionism. In fact, it may well avert it. But by devolving powers, new objects of conflict could be created.
These are likely to take two forms: 1) demands for new provinces. If running a province gives me power, I want one of my own. If I lose out in a political battle in my province, I will take my area and ask for a separate province.
2) Local ethnic tensions are likely to increase with decentralization. Some groups will win power in a province or district, and others will lose. Local ethnic and religious majorities may be intolerant of minorities. Devolution puts regional minorities at risk. While decentralization is good, it is best to take measures in advance to mitigate the resulting conflicts. This issue is worthy of serious attention.
The interaction of decentralization with checks and balances at the national level should also be noted. The combination of a major devolution and a serious system of checks and balances could produce a very weak Indonesian central government.
Finally, it is too late in the day not to have judicial review. Not only is it a worldwide trend, but Indonesia is going to want to sign onto international human rights obligations that will be enforceable in its courts.
So there will already be judicial review, and in that way the decision has already been made. But that does not explain how broad the authority of courts should be.
We know that the Indonesian legal system is not highly developed and that its courts are not noted for their creativity and legal innovativeness. This means that it is risky to ask the courts to deal habitually with complex and difficult constitutional issues.
Indonesia should avoid making the mistake of turning everything into a constitutional question. If there is broad scope for judicial review, that will give politicians an excuse to kick difficult questions to the courts, which, in Indonesia, will be fragile institutions, not necessarily well suited to taking a lot of political heat.
It is much more important to build a legal system in which all citizens can have confidence, than to engage the courts in political disputes under the guise of constitutional adjudication.
Finally, don't be so hard on yourselves. This has been a remarkable transition.
Its supporters are part of the new dispensation. Generally free elections have been held under a new electoral system. The armed forces have been in a peaceful retreat. A divided legislature has elected and seated a president without majority support.
Suffocating centralism is on the way out. Local accountability and civil society are on the way in. Through the pollution of Jakarta, you can smell the air of freedom -- and a sweet smell it is.
The writer is a professor of law and political science at the James B. Duke Law School in Durham, the United Kingdom.