Rebirth of Constitution without legitimacy

Denny Indrayana, Lecturer, Constitutional Law, University of Gadjah Mada, Yogyakarta

When a constitution lacks legitimacy, it is but a worthless document. Legitimacy must be present in the drafting of every constitution. Unfortunately, the main weakness of the Constitutional Commission is the absence of legitimacy.

John Elster (1993) distinguishes three kinds of legitimacy in the drafting of a constitution. They are (1) upstream legitimacy, which is concerned with the maker of the constitution, (2) process legitimacy, which has to do with the process of drafting a constitution, and (3) downstream legitimacy, which is related to the ratification of the constitution. In the case of the Constitutional Commission, it is very weak in terms of the first and the second kinds of legitimacy. The commission may hope to acquire legitimacy only from the process of drafting a constitution.

The commission has its weakness in relation to upstream legitimacy because its establishment is fraught with a wide range of interests. First, the commission has been set up by the Standing Committee of the People's Consultative Assembly (BP- MPR), an agency now at its lowest level of legitimacy in the eyes of observers of the reform of the Constitution. Understandably, the commission will also have a very low level of legitimacy. Although it must be admitted that not all output of the BP-MPR is bad, the four amendments to the 1945 Constitution it has produced are still laden with constitutional problems.

Second, the establishment of the commission by only BP-MPR shows a gross, logical mistake. The public has pushed for the establishment of this commission because of its lack of trust in the performance of the BP-MPR in constitution making. Ironically, it is this BP-MPR that has the full authority to set up the commission. The irony becomes greater when it is realized that it is the BP-MPR that is in charge of the Constitutional Commission. The output of the commission will be submitted to the BP-MPR and then it is the BP-MPR that will decide the fate of the commission. Given the track record of the BP-MPR, it is obvious that the commission is considered more as a foe than a colleague. That is why it is necessary for the BP-MPR to be true to its pledge that it will pass on the output of the commission to the MPR only resulting from the 2004 general elections. Still, I have my doubts that the present MPR will keep its word.

Regarding the weakness of the commission in terms of legitimacy in ratification, this is a characteristic of a constitution-making agency made up of experts. As the members of the commission are not directly elected by the public, the ratification of a constitution will not be directly undertaken by the commission. The commission must submit the output of its work to an institution that has popular representation: the House. However, to ensure that the work of the commission will not be wasted, the mechanism of ratifying a constitution will be returned to the public if the House fails to accept it.

In Thailand, in the 1996 to 1997 reform of its constitution, members of the Constitutional Drafting Assembly (CDA) were elected through a semi-direct election. Of 99 members of the CDA, 76 were elected by the parliament as representatives of all provinces, from 760 candidates that were directly elected by the people. The remaining 23 members of the assembly were experts in law, politics and state administration that the parliament had chosen from 45 candidates universities had recommended. Although the recruitment of CDA members was based on a semi-direct election, its output was ratified by the parliament. If the parliament had rejected the draft constitution from the CDA, a referendum would have had to be organized as the final mechanism for the ratification of the constitution. A referendum will produce the strongest legitimacy in terms of the ratification of a constitution. Peter Paczolay (1993) says, "ratification of a constitution by popular vote would give it unchallenged legitimacy."

Unfortunately, our Constitutional Commission will not be supported by this referendum mechanism. Article 38 of the 1945 Constitution leaves no scope for a referendum. The MPR is the institution that monopolized the process of ratifying a constitution. If the MPR rejects the commission's output, the document it has drafted will simply be a worthless pile of paper.

The only legitimacy that the commission can hope to make efficient use of is the process of drafting the constitution. In this respect, the resolve of the commission to make an overall reform of the amendment made by the MPR is appropriate. The commission, indeed, must engage in "creative interpretation" so that it can go beyond the boundaries that the MPR has deliberately set up. A comprehensive study, as mandated by the MPR, must be construed as the authority of the commission to amend the amendment, and not simply the authority to harmonize the use of punctuation.

To lend strength to process legitimacy, the only thing that the commission can do is to maximize public participation. The MPR hardly made use of this method in the four previous amendments to the Constitution. In this respect, all kinds of media must be made use of. In Thailand, radio and television programs were involved in debates on constitutional matters. In South Africa, aside from radio and television programs, there were telephone hotlines, websites and print bulletins for intensive discussions of the drafting of the constitution. The draft constitution was printed in eleven languages. Students were introduced to the draft through comic strips. Blind people could read the draft in Braille or could listen to a recording of the draft being read out.

In our country, there is very little time left for the Constitutional Commission to initiate comprehensive public involvement, especially now that the golden moment for the commission has passed. The success of a commission like this in the drafting of a constitution during a transition from an authoritarian government will go down in history if the commission begins its work in the early period of the transitional period, namely immediately after the transitional general election is held. To the best of my knowledge, there has never been a constitutional commission that has made a successful contribution after the political euphoria has dissipated, let alone in the run-up to a general election. Prior to a general election, it is very difficult to shift the interest of the public away from election-related issues. Anyway, matters relating to a direct presidential election will be more attractive discussion topics than simply articles of the Constitution.

I fear that the Constitutional Commission will simply be another failure in the drafting of a constitution in Indonesia. Earlier attempts at redrafting the Constitution failed in 1945, 1949, 1950, 1956 to 1959 and 1999-2002. In 2004, Indonesia is likely to have another failure in the country's bleak history of constitutionalism unless there is a political miracle in the upcoming 2004 general elections that will lead to the emergence of a reformist political configuration in the House. Given widespread political corruption and an increasing number of deceitful politicians, I feel justified in remaining concerned.

The writer is a PhD candidate in law at the school of law, University of Melbourne.