Rebirth of Constitution without legitimacy

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.