Weighing the urgency of constitutional amendments

Munafrizal Manan, Jakarta

The Regional Representatives Council (DPD) is eager to propose an amendment to Article 22D of the Constitution of 1945. Article 22D regulates the role of the DPD in law making. By amending this article, the DPD hopes to increase its authority so as to become an equal with the House of Representatives (DPR).

The DPD has thus been canvassing for support. DPD Chairman Ginandjar Kartasasmita claims to have gained backing from two factions in the DPR, the Democratic Party and the Prosperous Justice Party. This being the case, he continued, only 100 more votes would be needed to reach a third of the required total, or 223 votes.

This discourse on constitutional amendments to enhance the DPD's authority has gone on since the very formation of the DPD. An amendment to the constitution establishing the DPD was adopted by the People's Consultative Assembly (MPR) on November 9, 2001. At that time, the DPD was vested with limited authority, and was subordinate to the DPR rather than being a public institution equal in role and power to the DPR.

From the very beginning, the idea of the DPD triggered arguments for and against. One camp firmly rejected the DPD, while the other camp wanted a strong bicameral system for Indonesia's political structure. But in the political context of that time, the DPD was actually an endeavor to contain growing calls for a federalist state, replacing the current "unitary republic", thus the proposal to set up the DPD was agreed upon. Compromises had to be made in its realization, however.

Against this background, a constitutional amendment as proposed by the DPD is indeed reasonable. Without an amendment giving the DPD the same authority as the DPR in terms of legislative matters, it is hard to deny the notion that the DPD is merely the DPR's "expert staff" in the area of law making. The DPD's involvement in law making, as defined in Article 22D of the Constitution, is limited to submitting bills to the DPR and discussing them. However, it is the DPR that decides on which bills go forward. The DPD should be given equal power with the DPR to propose and make laws, pursuant to Articles 20 and 21 of the Constitution.

Nonetheless, as the DPD was formed to represent regional interests, its authority to propose and make laws should be limited to matters concerning regional autonomy, central-regional government relationships, formation, division and amalgamation of administrative regions, management of natural and economic resources, as well as matters related to central-regional financial ratios. Therefore, it should not be too concerning to have the DPD and the DPR on equal footings in terms of proposing and endorsing bills, as the role and authority of the DPD is designed to carry out specific missions concerned with regional affairs.

There are sound reasons to back the amendment to the Constitution the DPD is striving for. Nevertheless, the amendment proposal still has some drawbacks. First, the DPD has not been established long enough to gain a track record that could be used to evaluates its continued existence and development. So far, the DPD has proposed no bills concerning its areas of authority.

Second, reopening the political arena for constitutional amendments has the potential to cause conflict among and between power elites and the public at large. There would be no guarantee that opening up debate on the Constitution could avoid the emergence of proposals and pressures to amend other articles that are sources of intense political competition and conflict. There have been four amendments to the 1945 Constitution: in 1999, 2000, 2001 and 2002. All were invariably followed by intense political friction. Any failure to compromise on the elite's political agendas for constitutional amendments threatens deadlock, with the obvious outcome of political destabilization.

In addition, there is no guarantee that reopening constitutional debate will not shake the foundation of Indonesia's present political structure, which is now already fairly progressive compared to the pre-amendment period. The heated debates in the Constitutional Commission assigned by the MPR to systematize and formulate an academic manuscript of the Constitution -- although devoid of political authority to make decisions -- indicates the sensitivity of constitutional amendments. At that time, certain members of the Constitutional Commission proposed the elimination of articles relating to human rights and a reduction of the authority of the Constitutional Court. Just imagine if this constitutional deconstruction had been undertaken by politicians having actual power to make amendments!

Third, for constitutional amendments that have destabilizing potential and that require state funding, the present time obviously is not the right moment, with the nation facing the aftermath of the earthquake and tsunami disaster in Aceh and North Sumatra.

Indonesia must indeed introduce further constitutional amendments in the future, but now is not that time. State constitutions are often amended for the purpose of adjusting to the spirit of the times. Therefore, constitutional amendments are not a taboo. Even the U.S., whose constitution has been amended 27 times (12 times in 1804 and 15 times since), still sees discourse on the need for further adjustments.

In Indonesia, constitutional amendments are also needed as the Constitution, even after being amended four times, still has problems in its substance as well as its systematic arrangement. This is due to the fact that previous amendments were not properly prepared and were imbued with the shortsighted agendas of the MPR political elite of that time. The Constitutional Commission formed by the MPR some time ago actually gives acknowledgement to the fact that the constitution still needs work.

However, it would be regrettable if proposals for constitutional amendments were limited to articles concerning the DPD's authority. The power of other public institutions also needs thorough study to determine whether they should be reduced or increased. The Constitutional Court, for instance, should have the authority to resolve constitutional disputes -- like that of the German Constitutional Court -- to act as a shield for Indonesian citizens against any violation of their rights by executive or legislative bodies.

Consequently, proposals for constitutional amendments should be broader and have the mission of making the constitution more progressive, in the sense of meeting the principles of constitutionalism: upholding the rule of law and the code of checks and balances, separation of powers, constraint on power, government by the people, and protection of human rights. In brief, when the right moment arises later, constitutional amendments will have to be introduced in a comprehensive manner rather than a piecemeal approach as we have done before.

The writer is researcher at the Center for Constitutional Court Research and Study. This article represents his personal views.