Should we amend or replace the basic law?

Should we amend or replace the basic law?

There is no doubt that the success of Indonesia's campaign to
transform itself into a democratic nation hinges on the presence
of a strong and supportive constitution. More than three years
into the reform movement, and after three series of amendments,
questions are now being asked about whether the 1945 Constitution
has what it takes to build a peaceful and prosperous nation.

How many more changes do we need to make to our basic laws?

Would it not be better, or certainly simpler, for the nation
to simply draw up a new constitution, instead of making piecemeal
changes that are often dictated more by the short-term interests
of political parties?

History is certainly not on the side of the 1945 Constitution.

While supporters of the basic laws say it has succeeded in
keeping this ethnically diverse nation together, it has failed
miserably in ensuring a solid nation building process for these
past 56 years.

On the contrary, the 1945 Constitution has produced two
presidents hungry for power: Sukarno and Soeharto.

While many people have acknowledged that the 1945 Constitution
is so vaguely worded that it is open to interpretation --
needless to say, it is the ruler's interpretation that always
prevails -- not many are prepared to have it discarded
completely, more for emotional reasons than anything else.

Others argue that the preamble to the 1945 Constitution should
never be changed for it acknowledges and maintains the presence
of diverse ethnic groups, cultures and religions in this country.

The year 2002 will be a crucial time for the future of the
Constitution. The People's Consultative Assembly is working on
the fourth package of amendments, one that is expected to make
significant changes with regard to the way this nation elects its
president and vice president in the 2004 general election.

While there is a widespread consensus on using a direct
presidential election system, the devil is in the details.

The MPR in its November session could not reach an agreement,
and here the debate is heavily wrought with the vested interests
of the main political factions. Needless to say, these are short
term interests, looking at how each party would fare in 2004
under the new election system.

The failure of the MPR factions to come to an agreement has
made the argument for an independent constitutional commission
even more imperative.

While the idea of an independent commission was mooted by
President Megawati Soekarnoputri in her independence day speech
in August, her own Indonesian Democratic Party of Struggle (PDI
Perjuangan) party had not been receptive to the idea. Even
Megawati herself has since made no mention about her proposal.

As the November debate on the details of the direct
presidential election shows, the major political factions are
simply not ready to give up their power to appoint the president,
which is theirs under the current setting.

The biggest drawback of the current system, in which the MPR
has the power to appoint and remove the president, is that it
could produce a president who does not necessarily enjoy the
popular support of the majority.

A case in point was the election of Abdurrahman "Gus Dur"
Wahid in 1999, even though his own National Awakening Party (PKB)
came third in the general election.

Megawati, whose PDI Perjuangan won the general election, had
to settle for the vice presidency.

Ironically, it was also the MPR that booted out Gus Dur and
promoted Megawati to the number one post in July.

Such is the power of the MPR, thanks to the series of
constitutional amendments, which makes it hard to envisage the
political factions ever wanting to give it up.

But it is not only the MPR's power that is under threat.

Its own existence is also in question. Without the power to
appoint and replace the president, what is the purpose of having
an MPR at all?

In endorsing the very idea of a direct presidential election
system, the MPR factions, knowingly or not, have undermined their
own existence. Changing the way the nation elects their president
means making a whole lot of other changes to the Constitution.

"One of the fundamental flaws in the 1945 Constitution is the
creation of the MPR, with virtually unlimited powers," said one
of the panelists at a discussion hosted by The Jakarta Post.

On one hand, the Constitution says that sovereignty is in the
hands of the people, on the other, it creates an MPR that is not
answerable or accountable to anyone, not even to the people.

The way the debate has been going, a new senate-like body
would be established in place of the MPR, strengthening the
representation of the regions.

Dissolving the MPR, the nation will do away with the presence
of unelected representatives in the legislature. Those with the
most to lose therefore are the factions of the interest groups
and the Indonesian Military/National Police.

Campaigners for constitutional reform say whether the nation
amends the 1945 Constitution or replaces it with a totally new
one, the most important aspect is the presence of a mechanism of
checks and balances to prevent power abuses by the state
legislatures.

Then, there is also the question of accountability of holders
of elected public office, something that is not clearly spelled
out in the current basic laws.

And whether one is for constitutional amendment or a
completely new constitution, many articles in the 1945
Constitution definitely need reviewing.

One panelist states that by stating that a President must be
an "indigenous" citizen, the Constitution is discriminating
against minority ethnic groups, like the Chinese.

While this clause was inserted back in 1945 to preclude the
possibility of a Japanese becoming president in the aftermath of
World War II, Indonesia, then under a Japanese military
occupation, proclaimed its independence in August 1945.

That clause on "indigenous" citizen has remained unchanged and
had been used to discourage Chinese and other minority ethnic
groups from running for public office.

Changes in the constitution, whether through major amendments
or through the drafting of a new one, is what Indonesia needs
today.

Whether the MPR has the ability to affect those changes is
another question. Looking at its performance in November, there
is good reason for pessimism.

Certainly, without outside prodding -- here is where non-
governmental organizations come in -- it is hard to expect the
MPR to implement those reforms.

One thing is for certain, the nation's founding fathers who
drew up the 1945 Constitution never intended to make it
permanent.

The last article in the Constitution recognizes the
provisional nature of the basic law -- as good as the basic law
may seem, it was hastily drafted -- and allows for amendments.

The question is now left to present day leaders: How much and
how fast do we need to change the constitution to bring the
country closer to the ideals of a more humane civil society?

At any rate, it is clear now that amending or replacing the
constitution, which essentially determines the future of this
nation, has become too precious to be left entirely in the hands
of mostly short-sighted 700 members of the MPR.