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.