Weighing the urgency of constitutional amendments

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.