Using and abusing legal loopholes

What would be a legally acceptable outcome to the current political crisis? Professor in constitutional law Indra Perwira of the Bandung-based Padjadjaran University shares his outlook.

Question: If President Abdurrahman "Gus Dur" Wahid were to resign before the special session of the People's Consultative Assembly, how should he be replaced?

Answer: Then Clause 8 of the 1945 Constitution would apply -- that if the President dies, quits the presidency or is unable to carry out his obligations while in office, he is automatically replaced by the Vice President until the end of his term. This principle applies throughout the country -- that the position of the president cannot be vacant, even for one second.

But the Constitution does not mention the case of a president who is made to resign. Would we see a repeat of the controversy surrounding the rise of former vice president B.J. Habibie to the presidency?

The controversy about Habibie concerned Clause 9 of the 1945 Constitution, that before a president-to-be is installed he should take his oath before the House of Representatives (DPR) and the Assembly (MPR). How could Habibie have taken his oath in the MPR/DPR building while it was occupied by students?

Could we avoid a repeat of such a controversy in a future replacement of the President?

What is clear is a return to the Constitution ... that a president who quits while in office means either voluntary resignation or that he is made to quit by the Assembly.

What if the special session takes place without the President delivering his accountability speech, as reportedly requested by Gus Dur?

The main agenda of a special session is to request the President's accountability report. Whether he likes it or not, the President must deliver this (report), which will be evaluated by the MPR.

If the President is considered to have violated the State Policy Guidelines (GBHN), he can be dismissed during his term in office.

But until now there is no constitutional ruling on the criteria of the GBHN, so (a statement on) its violation could become controversial. This is what is happening between Gus Dur, as the President, and the legislature.

I agree here with (constitutional law professor) Harun Al Rasjid, who has questioned what Gus Dur violated as president.

In the case of the United States, a president faces impeachment if he is considered to have committed treason, accepted bribes or committed a serious crime.

Along these lines, the alleged involvement of Gus Dur in the Brunei and Bulog financial scandals can be the basis of requesting his accountability. But are the facts of his involvement quite clear? If not, Gus Dur's report would be limited to explaining his position in both cases.

So what if Gus Dur refuses to be dismissed by the Assembly after disagreeing with its criteria of the GBHN?

This is indeed one of our legal weaknesses. The DPR is demanding the President's accountability, and the referee in this matter should be the Assembly. The problem is that while the composition of the DPR and the MPR used to be equal with 500 members each, the DPR now outnumbers the MPR, which now has 700 members.

So if the DPR is intent on toppling Gus Dur, this is what will happen. Politics will determine the criteria for the GBHN, given our weakness in this legal respect.

The DPR considers Gus Dur lacking in competence, but its members don't know how to "stop" him. So they use Buloggate and Bruneigate ... It is lamentable to witness legal uncertainty being used in political games. The law should be used to prove in court whether the President is guilty.

But there are no rules on a president going on trial as there were under the Constitution of the Republic of the United States of Indonesia.

But what's clear here is that if the MPR dismisses a president he is legally no longer president. If he resists (the MPR decision) it would amount to treason against the Constitution. Would the President's reported plan to impose a state of emergency be acceptable in today's climate?

The President's plan to declare a state of emergency to enable him to issue a decree to dissolve the DPR and hold elections is a misreading of the history of our constitutional law.

When president Sukarno issued a decree (stating a return to the 1945 Constitution and the presidential system) a state of emergency was not declared beforehand.

Because a presidential decree lacks a legal basis, some experts justify such a decree as a constitutional (product) in a state of emergency ... (such as) if the constitutional situation is seen to be in a deadlock. In 1959, we experienced a serious constitutional crisis given the equally strong contradicting powers in the body assigned to draw up the Constitution. The decree was an "unconstitutional" way out to save the nation.

We were then under the 1950 Provisional Constitution in which the president was only a "nominal executive" in a parliamentary system -- where a head of state must take action to overcome a political crisis.

But the 1945 Constitution does not recognize this (condition) ... unless, for instance, the Indonesian Democratic Party of Struggle with the National Awakening Party resisted Golkar; with their equal strength (the deadlock created) could be considered a constitutional crisis.

However, a conflict between the President and the DPR cannot be considered cause for a state of emergency. (Yuli Tri Suwarni)