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.