MPR and Amendments to the Constitution
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There have been a number of oral and written discourses about whether or not the Constitution should be amended. Similarly, a number of academic studies or forums have been organized by several institutions across disciplines of study.
Arguments based on constitutional law, public administration and political science have also been widely exposed. In fact, since 2007, or five years after the fourth amendment, many judgments and demands have been identified and inventoried.
Some have accepted the changes made and reject further amendment. Others reject the amendments and demand for a total overhaul of the 1945 Constitution.
Still others have asked for the broadest changes, to strengthen the position of a particular body and, as has been often heard lately, have called for a need to revive the General Guidelines of State Policy (GBHN) in order to guarantee the sustainability of development.
In the last two years, even more vigorous thoughts and requests have been made to restore the original 1945 Constitution, a demand that has escalated quickly through social media.
Upon different considerations and reasons, some people have also called for returning to the original 1945 Constitution and then gradually improving and refining it based on a clear concept of mutual consensus.
So, this is the general outlook about the discourses on the possible amendments to the 1945 Constitution. It is not improbable that the idea has developed further. Whether the prolific trends only reflect the differences in academic thought or the desire to have a national order in which the philosophy of the constitution’s content and their explanations are synchronized, or a national system that is effective and efficient, or that it is for the fulfillment of short-term political interests and goals, all are possibilities.
Perhaps some may judge that they are just understandable hoopla. That it is just noise, and it will not cause trouble. However, it is not wrong to say that some of the arguments are worthy of attention. At the very least, the debate over the basic laws of the country should be managed properly and wisely to ensure that it will not cause conflict.
Authority to change
Now, while the debate is about whether or not a change is necessary, why it should be changed and which part, no less important is the question: how should the main issue be addressed? Set aside the aspects of substance and materials, and focus on the procedural and formal aspects. Who should accommodate, facilitate, and lead until a consensus is reached? Many still think that the MPR (People\'s Consultative Assembly) is a given for the role.
Would that be correct?
On the MPR’s authority to change the constitution, it must follow its existing authority, when it still had the authority to fully exercise the sovereignty of the people. This authority was stipulated in Article 3 (the old one) relating to the position and function of the MPR as an institution that fully exercise the people\'s sovereignty, along with Article 1, Paragraph 2 (the old one). The role and function of the MPR as a representative of the people\'s sovereignty –which was in the 1945 Constitution even after four changes – no longer exits.
Because of this, if the MPR designed and stated in Article 3 Paragraph 1of the third amendment (2001) that the institution "is authorized to amend and enact the Constitution", what kind of argument might it have?
As the highest written law, the Constitution contains the basic rules for governing the state and its functions, the composition of government institutions and their authority and working mechanisms, and regulating citizens (rights, duties and governance of their lives).
The Constitution is basically a legal document that is (according to popular terms and theories) a social contract drawn up by the people agreeing to form a state, to give up some of their rights to the state, and to release some of their rights to be bound by obligations by the state.
As the owner of sovereignty, the people entrusted their sovereignty to the MPR, which, in its early conception, was designed as an "alter ego".However, the people merely entrust it, and they remain the actual owner.
In the earlier concept, when the MPR was established as the highest state institution that accommodated all of the people’s elements and layers or factions, it was entrusted to implement the people’s sovereignty: "Sovereignty is in the hands of the people and realized entirely by the People\'s Consultative Assembly". Because of these mandates and beliefs, the MPR was given the authority to determine or change the basic rules for the lives of the state’s citizenry.
In the earlier conception, the authority of the MPR to determine the Constitution as defined in Article 3 Paragraph 1 (old), must be understood philosophically and sociologically in relation to the MPR’s role and authority to fully implementing the people\'s sovereignty, as defined in Article 1 Paragraph 2 (old). This authority to determine the Constitution as such was given based on its role as bearing the mandate, as manifested, to be the implementer of the people\'s sovereignty.
This older philosophical construct seems to have been abandoned over the four amendments in 1999-2002. Like other fields, the approach seemed mechanical. What was necessary and considered good at that time was because of the generally accepted universal values.
The formulation of Article 1, Paragraph 2 of the 1945 Constitution after the amendment reads: "Sovereignty is in the hands of the people and is carried out according to the Constitution". The MPR is no longer the implementer of the people\'s utmost sovereignty. The MPR is no longer an "embodiment or caretaker of the sovereign mandate of the people".
The new formula looks like it has a different concept than before. It looks like the MPR is an institution that is no longer established on thoughts based on the spirit of kinship and gotong royong“ (mutual cooperation).
In the current format, there is a disconnect between this philosophy and a description in the body of the Constitution. The existence of Article 3, Paragraph 1, of the Constitution after four amendments is formulated: "The People\'s Consultative Assembly is in a position to amend and enact the Constitution". This raises questions. There is the phrase "state" because many considerations may be accepted merely for reasons of ceremonial interests of the state, what about "alter" (or even "replace")?Which moral, philosophical, and sociological forces underlie the claims of authority to amend the Constitution, when the MPR is actually "nothing " in relation to popular sovereignty?
Sometimes it sounds satirical that the MPR is now a renovated institution, but that its form and function are no longer in accordance with the philosophy, ideals, and visions that existed when the Unitary State of the Republic of Indonesia (NKRI) was established.
The MPR is like a house built without a foundation. Without soul. Unsurprisingly, the situation has also invited further grumbling concerning the necessity and existence of the MPR as it is today.
Referendum
Article 3, Paragraph 1 of the Constitution results from an amendment (made by the MPR itself) exists, but without moral, philosophical and social guidance. Who should examine such a constitutional article, except the people as the owner of sovereignty? What is the middle way to resolve it? For fundamental reasons related to both the nature of the people as owners of sovereignty and as a strategic solution, the best way to make changes to the Constitution is through a referendum. Why is that?
Revising the Constitution as the basic law, as a basic rule that is structured as an expression of sovereignty, can be easily accepted if the change is made with the consent of the people as the owner of sovereignty.
When the present MPR is no longer a sovereign entity, its willingness to change the Constitution – unless it is supported by the Article 3, Paragraph 1 of the amended Constitution – is questionable. To use the old language, the MPR is no longer the manifestation of the people. The MPR is no longer the caretaker of the people. The MPR is no longer the highest state institution.
With these changes, sovereignty has been returned to the hands of the people. Now it is the people who are fully empowered with sovereignty, which originates from and with them. In the sense of sovereignty that has been “repossessed” by the people, changing the Constitution (to reiterate the earlier phrase) is essentially the same as changing the social contract.
Because of the contract, the people are also entitled to change it, whether its direction, form, content, ordinance, or coverage. The Constitution must be amended with the consent of the people first.Such a process is called a referendum.
Arranging a referendum is certainly not difficult, because we already have experience. In the past, we had Law No. 5/1985 on Referendum as an implementation of the MPR’s TAP. When in 1998 the MPR intended to amend the Constitution, it replaced TAP IV/1993 with TAP VIII/1998. The change was then enforced by the president in passing Law No. 6/1999 on Revocation of Law No. 5/1985.
Improving the concept is necessary. As an activity, a referendum will bear costs. However, don’t we also have much experience in the design and management of funds for various elections: legislative elections, presidential elections, or regional elections?
The question that is rational, but still beyond the MPR\'s authority, is: Who should initiate the entire process and what instruments should be considered? The uncertainty around this very basic issue is clearly not good and should not be left without a firm approach or decision.
Many parties will make their own conclusions and develop views, ways, and actions based on their respective interpretations. It would be wise if all parties could help and convince the President with a comprehensive explanation, especially the philosophical and academic reasons for the need for the president, as head of state, to initiate a national agreement, by bringing the leaders of all segments/elements of society together.
If a final word can be reached on national agreement, the current Constitution can be amended again (or refined partially or completely, or returned to the original 1945 Constitution), or not at all.
Even if the change is finally agreed, it is very important first to include strict conditions, such as those things that cannot be changed (especially the Preamble of the Constitution).
Also, the draft of the amendment and its formulation should be made by an Ad Hoc State Committee (in order not to invite confusion, its name should stay away from "commission") that is accountable to the President and comprises experts and experienced and wise statesmen, and is formed by the President, along with community leaders of the community and MPR leaders.Also, if the amendments are made under a comprehensive and principal design, their implementation can be carried out gradually, and must pass a referendum at every stage.
BAMBANG KESOWO
A public policy observer
