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.