Sorting out what is 'unconstitutional' behavior.

Following President Soeharto's comments about "unconstitutional" groups, many Indonesians have been confused as to just what is constitutional and what is not. Lawyer Nikolas Simanjuntak of the Jakarta-based Atmajaya University attempts to clear up this controversy.

Question: Can you explain the concepts of constitutional and unconstitutional?

Answer: The concepts of constitutional and unconstitutional have been completely mixed-up here. People have confused these issues with basic value judgments, whether something is"good" or "bad" -- which is related more to an ideological or dogmatic justification, whether it is right, wrong, "appropriate or less appropriate" -- which is related to its political legitimacy.

The confusion comes to the forefront when a decision about legal-political legitimacy must be made with reference to a dogma or ideology.

When we speak of constitutional legitimacy in Indonesia we must refer to the constitution conceded to when this state was first formed, that is the 1945 Constitution whose preamble carried the five ideologies of Pancasila.

Q: If that is the case, how will you explain the existence of opposition groups in Indonesia? Is it constitutional to say that the Indonesian constitution doesn't recognize oppositions?

A: Let me put it this way. During a general election in Indonesia, the people's aspirations are channeled through the three parties -- the United Development Party (PPP), Golkar, and the Indonesian Democratic Party (PDI). In the House of Representatives the three parties subdivide into five factions, carry out debate and discussion, out of which emerges the five- yearly guidelines of how the incumbent government should implement policy.

In other words, it is through the State Policy Guidelines (GBHN) that the aspirations of each faction in the House of Representatives -- which are supposed to represent the whole people -- are expressed and compromised. Once the GBHN is established through debate and discussion the People's Consultative Assembly (MPR) then ratifies it in the form of a decree. A president will only be elected whenever the MPR has ratified the GBHN. It is also worth noting that the GBHN has always come as the second decree of the MPR, while the decree of the presidential election comes as the ninth, 10th or even 11th decree.

Therefore, President Soeharto was right when he said that there was no official opposition in the country. The President does not create the basic programs that he implements. They are the result of debate and discussion in the House between the three election contestants. In theory they are the programs of the people. So then who is the opposition?

Q: Are you saying that the President was only stating the obvious?

A: That's right. The explanation is as simple as that. In other words, he was trying to say that if people no longer want him to carry out their policies they can just make him step down. Just that they must do so in a constitutional manner. That's my interpretation of his recent statements.

Q: Why then, do people make a fuss about the statements?

A: As I said, they -- mostly practical politicians -- are confused over the two sources of legitimacy. If we discuss democracy, we are talking about a ideological justification. In this case, the Indonesian Pancasila democracy. If this is the case, therefore, there is nothing wrong with the statements.

It is incorrect if we talk about Indonesian democracy by referring to other countries' constitutional philosophies. If you want to use any other ideological framework, you must first change the constitution. The 1945 Constitution doesn't not allow for this.

Q: So, what do you think is the real problem underlying such confusion?

A: The people's political awareness. Their lack of awareness is not their own fault. The problem has become very complicated. Besides, there is also a wide range of possibilities -- there could be either an improvement, addition, reduction or others -- between basic value judgments of right and wrong. To be completely right requires a long process. It's not the time to judge things as right or wrong, yet.

Q: Is there any special message you can read from the President's statements?

A: As far as I'm concerned, regardless the possibility of any media misquotes, Pak Harto felt that there was a possibility of unconstitutional organizations. It could be Sri Bintang or even others as he was not specific. There were, therefore, many possibilities as to what he actually meant.

Second, he may have just wanted to warn us to be aware of such movements. Or, he might want to tell us that know that action needed to be taken to make people understand these complicated ideological problems and see them in the right perspective. So if nothing was done, unconstitutional activities could arise.

The arrest of Sri Bintang for example may represent a mistake in the interpretation and implementation of the President's intentions. Besides, such arrests will never address the real problems. Pak Harto has probably been smiling to himself in his palace looking at what his staff have done in reacting to his statements.

Q: What is the real problem?

A: There is a need to discuss the concept of democracy. We need a clear explanation of democracy. And above all, we have to make a distinction between what can be judged as constitutional or unconstitutional. As you know, ideology is abstract. You won't be able to integrate it into the community if you fail to make it sound "concrete" to them first.

The social implementation of an ideology, therefore, will only be successful if you succeed in gaining social acceptance. It could be that Pak Harto considers this process to be a problem.

Q: How do you see the case of Sri Bintang in the context of distinguishing between constitutional and unconstitutional?

A: First, we have to consider whether Bintang's move was an attempt to show that there is a means of realizing the abstract notion of democracy within the Indonesian community. If it was, did he subscribe to the concept of Pancasila ideology or did he mean a democracy inherent in human nature?

Q: What if it is the ideal democracy that he has been struggling for? Can we consider this to be wrong?

A: It depends on whether we consider him to be "right" or "wrong" or "appropriate" or "inappropriate". I myself consider both his arrest -- by the Attorney General's Office -- and his own organization to be inappropriate. Strictly speaking, both of them are unacceptable within the current political system. It's not just the problem of right or wrong. It's too narrow to think it in these terms.

There are, as I said, still many possibilities between the right and wrong choices. If, for example we place right and wrong on a spectrum of zero to one, there can be a large distance between the two numbers. There are many possible numbers between them. They can be 1/4, 1/3, 1/1,000, etc. That's why nothing will never be perfect.

The case between Muchtar Pakpahan and the Supreme Court, for example, is in fact only a case of law enforcement. There is, nevertheless, the so called rechts vinding or the re-invention of the actual laws behind the cases. A law is, however, more than just a written institutionalized norm or principle. It has to be applied through a universal interdisciplinary methodology, not one which is Indonesia specific.

In other words, we need to redefine the whole system including the legal institutions, legal processes and other related aspects. It is questionable, for example, whether the existing legal institutions have already met the people's need for justice. What can an NGO can do about it? There are many such questions to answer.

Q: It's not an easy task...

A: That's right. It's a serious matter. A redefinition of a nation's laws also involves a redefinition of political, economic, as well as social life. That's why we need a leader who has a grand vision of the solution.

Q: Are you suggesting that we should change the nation's constitution?

A: The constitution should be left as it is. Although we should make it more open to change so that it continues to grow and is not a stultified institution.

Maneuvers like that of Sri Bintang's, for example, or others can be made compatible with the existing constitution. I'm not saying that what Bintang did falls outside the basic limits of the constitution. I'm suggesting that such actions can be adjusted to the constitution by making certain alterations or modifications. That's why we also need the so-called architects of law and not just legal workers.

Q: One of the goals of our government is to create a just and prosperous community. Can we say it is unconstitutional if the government fails to meet that objective?

A: Again, we have to make a distinction between specific political and broader ideological justifications. As the 1945 Constitution clearly specifies the goals of justice and prosperity it is obvious that this falls under the heading of ideology. It's about right and wrong. Thus, the question will be: Does our government move beyond that goal?

From a political angle, on the other hand, we can see the governments efforts to achieve justice and prosperity. The question is whether or not they are successful. We cannot argue that the government is unconstitutional just because they have not achieved these goals.

The GBHN for example, mentions that one of the government's tasks is realizing the so called eight-path course to social and economic equity. If at the moment the government is only successful in five of them, we cannot immediately deem this to be unconstitutional. What we can do is offer criticism based on the constitution.

A government can be considered unconstitutional only if it transgresses the existing constitution

Q: What is your observation toward our present government?

A: As far as I'm concerned, judged from its stated policies, the government is constitutional. Nevertheless, its stated goals require further conceptualization to be put into action. It is unfortunate that the government does so imperfectly. There is an indication that things are done loosely. What you see are only disconnected concepts, not integrated ones.

All those strategies should have been interpreted into holistic concept that we can apply them in a synergetic way. The problem is, therefore, not a problem of enforcement but a problem of application. In other words, we are already in a good track but not yet in the proper system.

Q: How do you see critical remarks on the Indonesian law and justice?

A: Critical remarks are all right. As long as they are concerned with law enforcement, they are worth considering as inputs. This, of course, doesn't mean that the critics are the best people as there are important and substantive criticisms yet to be made.

Most of the critical remarks we hear at the time have not yet touched the roots of the problems. They are mostly superficial.

Take the case of those remarks criticizing the ambiguous position of the Indonesian judges. The fact that they are under the aegis of two different ministries: the Ministry of Justice -- which is supposed to be an executive institution as it is a part of the government -- and the Supreme Court which is supposed to play the role of a judiciary institution is not a problem to me. It's not the root of the problem. After all, both institutions are sometimes playing either an executive or judiciary role.

Q: If that is the case, what's then the real problem?

A: The problem is the functioning of the law. Is it to be used as a tool merely to satisfy the authorities or is it used as it has to be, that is as a tool of a social reform to realize a better life where justice is strictly upheld. (swa)