Transfer of power must be legal

Transfer of power must be legal

By Mulyana W. Kusumah

JAKARTA (JP): Soeharto's declaration that he would quit the
presidency on May 21, 1998 and the subsequent rise of then vice
president B.J. Habibie was a historic constitutional event.

Article 8 of the 1945 Constitution stipulates the vice
president replace the president in the case of "resignation while
in office", until the end of the tenure.

There are no other constitutional provisions or laws
regulating the procedure for the implementation of the
Constitution. To date there is only People's Consultative
Assembly (MPR) Decree No. II/MPR/1973 which stipulates the
procedure for presidential election.

As the elucidation of the Constitution stipulates that the
president is elected by the MPR with a majority of votes and that
the president is appointed by the MPR, submits to the MPR and is
accountable to the MPR, obviously a constitutional procedure must
be resorted to if the president of his own volition "resigns
while in office".

Likewise, considering the political values of the
constitutional law, the president must first give his
accountability report regarding the implementation of his duties
in running the government to the MPR, which is the people's
sovereignty and the supreme state organizer.

The president cannot ignore this constitutional procedure and
the House of Representatives (DPR) must perform its function to
convene a special session of the MPR so that, pursuant to the
elucidation of the Constitution, this special session may ask the
president to give his accountability report.

It is a fundamental constitutional deviation if a president
may just, of his own volition, resigns while in office without
any constitutional consequences, particularly those related to
the president's formal accountability report, and the MPR's
judgment of its "mandate holder's" report.

Except in the event of the president's death, in the case of
the president's resignation while in office or his being
incapacitated to perform his obligation -- a condition enabling
the replacement of the president by his deputy pursuant to
Article 8 of the Constitution -- judgment and decisions set forth
in the form of decrees of the MPR are still required.

Pursuant to Article 8 of the Constitution, the replacement of
the president by the vice president must also be confirmed by
virtue of a decree of the MPR as happened when the Provisional
MPR (MPRS) issued its decree No. XXXIII/MPRS/1967 on the
revocation of the state's administration authority from former
president Sukarno in 1967.

Obviously we all do not want to see such deviations become
precedents in our history and constitutional practices.

Basically, a special session of the MPR, which is proposed by
various quarters, is an appropriate constitutional forum for the
following:

1. To pass judgment on former president Soeharto's
accountability report.

2. To discharge Soeharto on the basis of the said judgment and
on the basis of his own volition.

3. To decide on and confirm whether or not Article 8 of the
Constitution is applicable in this respect, and also the
replacement of former president Soeharto by the vice president,
in view of the fact that the interpretation of this article is
not entirely clear and that there has not been constitutional
ruling on the procedure for the enforcement of Article 8 of the
Constitution.

4. To revoke decrees of the MPR No. IV/MPR/1998 and No.
VI/MPR/1998 on the appointment of the president and the vice
president of the Republic of Indonesia and also the No.
V/MPR/1998 decree on the assignment of and the endowment of
authority to the president/mandate-holder of the MPR in the
framework of making national development a success and
safeguarding it as the application of Pancasila.

Furthermore the special session of the MPR may be designed to
stipulate the following:

First, the establishment of a "new government" -- which may of
course be led by President B.J. Habibie if he is elected
president in this special session -- which will be assigned to
immediately carry out comprehensive reform programs with
priorities on welfare programs and the organization of a general
election.

Second, reforming the membership of the DPR/MPR, namely
through: (a) reduction of the DPR/MPR members who smack of
nepotism and those that in the judgment of the DPR/MPR leadership
may directly or indirectly hamper the DPR/MPR in fulfilling its
role in the national reform process; (b) reduction of the DPR/MPR
members who are appointed with the president's approval; and (c)
additions from sociopolitical forces and representatives from
regions and social groups.

Third, the new government and the reformed DPR/MPR draw up
legal products of at least the following: (a) a new law on
political parties, which will enable expansion of people's
political participation and the establishment of a selected
multiparty system; (b) a law on the structure and position of the
MPR, the DPR and the regional legislative assembly (DPRD); and
(c) a law on the general election, which will give assurance to
the implementation of a fair and democratic general election and
the legalization of an independent election supervision and
monitoring institute.

Fourth, to revoke all MPR products which are considered not in
line with or able to hamper the national reform drive, including
the decree of the MPR on the general election.

Fifth, to stipulate that the new government and the reformed
DPR should revoke all laws contradicting the substance and the
spirit of the national reform drive.

Although everything has taken place now and President B.J.
Habibie has begun to perform his duties, including the
establishment of the cabinet, most of the ideas set forth above
can still be put into practice to prevent constitutional
deviations from dragging on or recurring in future.

It is also of great importance that all organizational groups
or parties which, in every way possible, have been obstructing
demands for comprehensive reforms -- some of whom even resorting
to the policy of violence -- should practice introspection and
make adjustments as far as possible to the currents of history,
which have taken side with reforms in all areas to save the
nation.

It is also appropriate that any institutional attitude and
behavior running counter to the aspiration of total reform must
be scrapped as they have been obviously strongly rejected by the
people and history.

The writer is a lecturer in social sciences at the University
of Indonesia and secretary-general of the Independent Election
Monitoring Committee.

Window: It is also appropriate that any institutional attitude and
behavior running counter to the aspiration of total reform must
be scrapped as they have been obviously strongly rejected by the
people and history.