Who desecrates the Constitution?

Who desecrates the Constitution?

By Johannes Nugroho

SURABAYA (JP): President Soeharto's concessive annunciation of
the possible speeding up of political reformation has been a
single, significant sign of democratic progress in the last
decade. The architect of the New Order further signaled the
revision of four of the five existing Laws of Politics.

The reformation package on offer includes the reconstruction
of the People's Consultative Assembly (MPR)'s composition, the
role of political parties and the general election. Despite the
seemingly magnanimous promise, the government is insistent on
retaining the Referendum Law which is interpreted as an attempt
at preserving the 1945 Constitution.

The Constitution, together with the Pancasila, have been an
inherent part of the New Order governance. In fact, the
legitimizing premise on which the New Order was founded was the
1945 Constitution.

The cessation of the almost infallibly sacred Constitution
would definitely result in the technical degeneration of the New
Order. Understandably, the government is at pains to ensure the
perpetuation of a Constitution which hallmarks its historical
legitimacy.

However, history has revealed the flaws and loopholes in the
present Constitution. These loopholes, partly owing to the
conciseness of the document, have thus far retarded democratic
progress in Indonesia.

The creation of an insuperable executive, coupled with a lame-
duck House of Representatives (DPR), worsened by the curbing of
free speech and a docile judiciary bear, are testimony to the
paramount urgency of revising the Constitution.

Moreover, the mythical notion of the Constitution's
untouchable status is inexcusable. Part two of the addendum
attached to the Constitution evidently states that: "Within six
months of the formation of the People's Consultative Assembly,
the said Assembly will deliberate to formulate the Constitution."

The clause must necessarily dispel the myth of the
Constitution's unassailable permanent status in Indonesia's
political system. Indeed, there is evidence to suggest that the
present Constitution was drafted to facilitate the first phase of
transition to self-rule.

The mention of a second formulation of the Constitution
alludes to the adaptability of the Constitution to suit the
changing needs of an evolving nation.

Articles 1, 2 and 3 of the 1945 Constitution, which reiterate
the role of MPR as a supreme state institution, deserve more
detailed articulation if, under a reformed system, the
institution is still relevant.

In the event of a district-based electorate system, which
would probably lead to decentralization, the MPR could well
appear to be an archaic, sluggish constitutional and
unrepresentative body to cope with the new system.

The more representative district-based system would only
render the half unelected members of MPR obsolete. Decentralized
regional government, which might lead to the formation of states
within an Indonesian federation, would abolish the need for
unelected regional representative who are practically members of
the executive branch.

The Indonesian legislative system could evolve into a
bicameral system with a Senate and the DPR. To safeguard the
interests of regional governments or the states, a quota of 10
senators is to be allocated to every province or state,
regardless of its size or population. These senators are to be
democratically elected as are their DPR counterparts.

A candidate running to be a senator does not necessarily have
to represent a political partly. An independent candidate is
permissible as not all political parties are able to represent
minority groups.

Constitutionally speaking, the Armed Forces (ABRI) faction in
the MPR is an aberration in a democratic and civilian system of
government. The presence of the military in the legislative
bodies would only obstruct the process of democratization.

The composition and the role of the Senate to initiate bills
are to be embedded in the Constitution, together with its
nonexistent right to veto a proposed bill by the president or the
House of Representatives.

Article 19 in the 1945 Constitution which regulates the role
and function of DPR is in need of further expansion as well. The
intended district-based electorate system will have to give
blessings to the rise of new political parties and independent
candidates. The equal footing on which DPR and the president
tread will need to be postulated in detail.

Further provisions need to be made in the event of a "hung"
DPR which might result in a deadlock during voting. The
prerogative of the DPR to veto a proposed bill by the executive
is to be reinforced in the Constitution.

Similarly, the role and prerogatives of the president are to
be articulated in the Constitution. Article 6 of the
Constitution, which could be considered racist, is to be annulled
or replaced by a clause necessitating a president to be an
Indonesian-born national without further allusions to his/her
ethnical background. The permissible term of presidency is to be
revised to a maximum of two terms.

More importantly, the procedure of electing the president is
to be specified in the Constitution, not simply by an Assembly
decision (TAP MPR) which bears less constitutional weight and is
liable to be easily altered by a strong executive for its
benefits.

The president should ideally be the leader of the biggest
political party in the DPR but not necessarily in the Senate.

Furthermore, the existence of the ambiguous DPA in accordance
to article 16 is subject to revision as well. The role of DPA,
its constitutional status and its election procedures are
decidedly vague.

Whether the Supreme Advisory Council (DPA) is part of the
executive or an independent body is disputable, not to mention
its constitutional correlation and interaction with the DPR.

Article 24 of the Constitution deals exclusively yet
inconclusively with the judiciary. Theoretically, the judicial
powers are vested upon a High Court, which traditionally is
headed by an attorney general. Hence the attorney general is the
supreme judicial figure, who is independent of both the executive
and the legislative.

Strangely enough, the present attorney general is a member of
the cabinet which puts him second in precedence to the president.
Being a member of the cabinet, thus a minister of the president,
compromises his independence and impartiality.

The procedure in which an attorney general is elected is also
missing in the Constitution. To ascertain the attorney general's
independence and impartiality as a check and balance, a candidate
is to receive endorsement from the president, the Senate and the
House of Representatives.

More ambivalence is created by the presence of the Ministry of
Justice which seems to precede the High Court in importance. The
recently promised law reforms came from Muladi, the justice
minister, instead of the head of the supreme High Court, the
eternally low-profile attorney general. The fact that an
assistant to the president, thus an executive personage, is
endowed with such judicial powers is a constitutional disaster.

The role of the High Court is, in accordance with Article 24,
regulated by law, which puts the judiciary at the mercy of the
executive and the legislative. The Constitution must necessarily
stipulate the role and prerogatives of the High Court in its
capacity to unravel disputes between the legislative and the
executive. It has also in its role the prerogative to be the
judicial watchdog in ensuring the absence of abuse of human
rights by the state.

On a more fundamental note, Article 28 is arguably not
conducive to democracy and is a form of restriction on civil
rights. The American Constitution absolutely ensures the freedom
of expression while our Constitution merely states that such
freedom is, again, regulated by law. If democracy is to be
upheld, then Article 28 must reinforce unconditionally the
freedom of expression and the existence of a liberated press.

Finally, the legitimacy of the Referendum Law is something to
ponder. The law was, theoretically, a collaboration between the
executive and the legislative, thus bearing less legal weight in
comparison to an Assembly decree (TAP MPR) which, in turn, bears
less legal weight than the Constitution.

Having established the supreme legitimacy of the Constitution,
it is stipulated in Article 37 of the 1945 Constitution that only
the votes of two-thirds of the present members of the MPR would
meet the requirements. In contrast, the Referendum Law requires
two-thirds of the populace to endorse any change to the
Constitution.

The question is which ones should take precedence? Legally
speaking, the Constitution must override any law owing to its
superior legal weight. Yet, such is the haphazard interpretation
and the loose implementation of our Constitution, that it has
left our political system crippled.

Honestly speaking, we ought to be ashamed of ourselves with
the numerous discrepancies in the application of the present
Constitution.

Britain, which has an unwritten constitution, has fared so
well for centuries while most of us have either been guilty of
desecrating or letting people desecrate our written Constitution.

The writer works at the International Language Program,
Surabaya.

Window: Strangely enough, the present attorney general is a member of
the cabinet which puts him second in precedence to the president.
Being a member of the cabinet, thus a minister of the president,
compromises his independence and impartiality.