Soeharto's legislation needs total scrutiny

Despite widespread criticism, especially from Muslim-based politicians, President Abdurrahman Wahid is unrelenting in his stance on the need to revoke a 1966 decree of the Provisional People's Consultative Assembly banning communism. Political analyst J. Soedjati Djiwandono supports the President's stance.

JAKARTA (JP): President Abdurrahman Wahid seems to be adamant, and rightly so in my mind, in his proposal that the ban on communism be lifted. The ban is against human rights, against democracy and thus against humanity.

Indeed, I would argue that all past legislation passed by Soeharto's New Order regime must be thoroughly reviewed, and I believe much of it should be revoked.

If banning communism or banning an idea, an ideology, a belief or a religion is wrong because it violates freedom of opinion, then the opposite, that is imposing an idea, an ideology, or a religion, even enforcing the teachings of a religion on its followers, is equally wrong for exactly the same reason. Both are equally wrong in moral terms.

Thus the marriage law, which stipulates that one must marry in accordance with one's religion, which amounts to the imposition of religion sanctioned by the law of the state -- and to make it worse, only a religion recognized by the state -- and the law on national education, which makes religious education compulsory, are precisely the type of legislation that must not just be reviewed, but revoked immediately. They both violate human rights, particularly the right of freedom of religion.

I often cite these two laws, for they are the most notorious cases in point. Other pieces of legislation of similar nature passed during the Soeharto regime abound. It would take years of scrutiny to review all the legislation from the Soeharto era, passed by both the Provisional People's Consultative Assembly and a series of "elected" People's Consultative Assemblies, as well as all forms of government regulations, including presidential decrees. But given the political will, moral courage and good faith, this would not be an impossible mission.

Many of those defending the ban on communism, politicians and intellectuals alike, even those who agree with the President "in principle", have argued that "the people are not yet ready". Why is it that when these politicians and intellectuals are themselves not ready for a change, either because of their own ignorance, their own fear or some other reason, they tend to claim to represent the public at large? How do they gauge people's readiness, anyway? Have they conducted some type of research?

Barely two years ago, for days on end young university students, free from sectarian interests and with hardly any encouragement from their elders, staged continuous demonstrations against then president Soeharto, demanding his resignation and total reform. Who would dare say these young people were not ready for change?

I am reminded of an article titled Is Democracy an Asian Value? in Time magazine a few years ago, in which the writer aptly compared the behavior of past colonial regimes with the current regimes of many developing countries. The colonial regimes were used to saying, "The people are not ready for independence," while the current regimes are prone to say, "The people are not ready for democracy."

Indeed, it is the duty of the representatives of the people to give voice to popular aspirations. But the nature of the Indonesian electoral system is such that it is difficult to see how this is to be realized. In general elections, the electorate practically give their representatives carte blanche. And short of a district or single-member constituency system, they vote for political parties rather than individual candidates. Moreover, it is also the function of politicians and intellectuals alike not only to represent, but also to lead the people toward progress.

Going back to the question of thoroughly reviewing past legislation, however, the process should ultimately lead to a reexamination of the very basis of the Soeharto regime's legitimacy. Soeharto primarily based the legitimacy of his New Order government on his allegation that founding president Sukarno had deviated from the 1945 Constitution. However, he never questioned the validity and legitimacy of Sukarno's decree on July 5, 1959, reintroducing the 1945 Constitution.

Indeed, given the circumstances of the time, perhaps that was the best alternative in order to overcome the deadlock in the Constituent Assembly. It was a blessing in disguise, for the vote on whether Indonesia was to be an Islamic or "nationalist" (i.e. secular) republic was an abuse of voting as a democratic mechanism. A mechanism of democracy should not be used for aims contrary to the democratic ideals of equality and justice for all and respect for human rights.

If the result had been a victory for the theocratic aspirations, it would have resulted in a violation of freedom of religion, and thus a violation of human rights. It would have entailed the principle that while all men are equal, some are more equal than others.

The implication is clear. We have to reconsider the status of the 1945 Constitution itself, including its preamble, a possible change to which is dreaded by many in the country, not necessarily for the same reasons, and not inconceivably even for opposing reasons.

I often wonder if those defending the 1945 Constitution, particularly its preamble, are truly clear and honest in their reasoning. Are the politicians of this country ready to think along these lines? Short of exploitation by politicians, I, for one, have no doubt about the readiness of the people.