Presidential relations with the DPR

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.