Sorting out what is 'unconstitutional' behavior.

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)