Snowballing Issue of Fifth Constitutional Amendment

Many issues began to emerge soon after the general election ended. The issue of amending the 1945 Constitution is clearly avalanching. It is seeing a strong onslaught of ideas, either as a natural response to the needs of the nation or as an unnatural response that is triggered simply by political agendas.

In actual fact, while change is necessary, clear demarcation is needed on which matter is urgent in terms of the national interest and which is mere political marketing. Do we need to amend the Constitution? This question can be answered by asking whether the legal structure of our 1945 Constitution is appropriate. A detailed reading of the Constitution reveals many areas that need touching up.

Problems in the Constitution

First, it must have a more orderly affirmation of whether we use the governance system of a presidential democracy, a representative democracy or a combination of the two. It is fine if we even want to express this as an Indonesian-style presidential system, as long as we do not allow for contradictions and other matters that harm the intended concept. To borrow the term of Fajrul Falaakh (2002), we now allow the model of "parliamentarianism through the back door". There are consequences to the governance system we choose.

Combining systems without correct apportioning carries potential complications that could damage the system itself. For example, imposing the State Policy Guidelines (GBHN) will incur no small complications to the governance system.

Second, the Constitution made a big "mistake" when it adopted the highly unbalanced bicameral legislative model. The House of Representatives (DPR) is very strong, but the Regional Representatives Council (DPD) is very weak. This model, according to Stephen Sherlock’s research (2005), is a strange combination that has never existed in any country. The relationship between the DPR and the DPD has given birth to a kind of bicameralism that is far from effective. The bicameral DPR-DPD model does not require "the DPR to be on equal footing with the DPD", said Geovanni Sartori (1994), because a bicameral legislature has a tendency to mutual weakening or contradiction, which can lead to a deadlock.

This unhealthy bicameral model is illustrated in legislation. The Constitution gives very strong legislative power to the DPR, compared to the DPD. In terms of supervision, the DPD must submit the results of its supervisory function to the DPR for follow-up. This procedure makes the DPD appear to be an "assistant" to the DPR. Likewise, all recruitment of public officials ends up at the DPR. The DPD is only given a very small authority in recommending appointments to the Supreme Audit Agency (BPK).

Our legislative model also needs to the structural support of another institution, the People’s Consultative Assembly (MPR). Jimly Ashiddiqie (2005) calls this the tricameral model. Serious discussion is needed to determine whether the MPR is just a joint session similar to the United States Congress or if it is a separate institution.

There is also an urgent need to start thinking about the concept of constitutional complaints as a legal instrument for individuals to assert their constitutional rights as citizens.

Third is the division of the judiciary into the Constitutional Court (MK) and the Supreme Court (MA). Of course, both courts must be strong and independent, but symptoms have recently emerged of overlapping and incorrectly placed authorities in the two institutions. For example, the Constitutional Court issues a decision on the DPD and its representatives, and then the Supreme Court issues a separate decision on something that has already been decided by the Constitutional Court. There is also an urgent need to start thinking about the concept of constitutional complaints as a legal instrument for individuals to assert their constitutional rights as citizens.

Fourth is the arrangement of state institutions. The complexity of the current problems of constitutionality has led to the creation of new institutions called “state commissions” under the constitutional system. These state commissions are state organs that are ideally independent and outside the executive, legislative and judicial branches, but instead combine the functions of all three.

The Constitution has several articles on forming state institutions. Some are formed through laws; many others are formed through regulations that number in the hundreds under the laws. Restructuring is thus necessary in relation to their independence and selection.

These four major areas of constitutional amendment can be expanded even further to cover, for example, strengthening human rights (HAM), regional autonomy and central-regional ties, as well as the direction of national development, as is being widely discussed lately.

Is the GBHN the answer?

What is surprising is that, of the many proposals and amid the urgency for improving the Constitution, the only stated goals are national development and the status of the MPR. The word "only" must be included here because if we are to be honest, there are so many agenda items that need doing, but only areas that relate to the GBHN are touched upon. The direction of development has then been wrapped up in a statement on the importance of reviving the GBHN.

Three reasons have been put forward. First is the poor system of national development, which has been increasingly non-cohesive and tends to be short-term. This is because the national vision and mission as well as development programs change as soon as there is a change in leadership. Second, since the last amendment, Indonesia does not have an official guideline for national development in all areas.

The third reason – and the more fundamental one according to those who agree with this discourse – is that all state institutions must implement and elaborate on the implementation of the national vision as set forth in the 1945 Constitution, and not just the president. Thus, the idea of reviving the GBHN must be placed squarely within the framework to restore the state vision.

This is also inapplicable, because if this is the reason, why have not the RPJMN and RPJPN been overhauled, strengthened or otherwise improved?

This idea is actually incorrect. First, no official in-depth study has been conducted to prove this accusation, so this is none other than the individual opinions of a number of institutions that consider the National Long-Term Development Plan (RPJPN) and the National Medium-Term Development Plan (RPJMN) as substitutes for the GBHN that remain partisan, favor group interests and exclude fundamental, public interests. This is also inapplicable, because if this is the reason, why have not the RPJMN and RPJPN been overhauled, strengthened or otherwise improved?

The accusation that the government has only ministerial assistance in drafting the development plans and that therefore the plans might not accommodate the overarching interests of the nation is also unacceptable, because the DPR and the DPD together deliberate the plans’ legislation. It is very possible to involve all stakeholders in the deliberations. The RPJPN and RPJMN are also not binding and do not regulate state institutions outside the executive, such as the DPR, the DPD, the Supreme Court, the Constitutional Court, the BPK and the Judicial Commission (KY). It applies to anyone only if it becomes law.

Public or political needs

There is an impression that the reasons for a constitutional amendment are all manufactured. That the RPJMN and RPJPN contain shortcomings may be true. But is the answer the GBHN?

The strangeness is more evident if the complicated system we are using is analyzed. First, as Jimly Asshiddiqie pointed out (2007), one of the characteristics of a presidential system is constitutional supremacy. In this case, reviving the GBHN as the official guidelines for national development in all areas, as applicable to all state institutions (executive, legislative, judiciary, and supporting institutions), is clearly not in keeping with the principle of constitutional supremacy.

Even though the GBHN is to be considered in translation and is to be placed under the 1945 Constitution, there is no guarantee that the GBHN will not contradict the Constitution. If it contradicts the Constitution, no mechanism exists for testing the constitutionality of the GBHN. Constitutional supremacy also means that no institutions or regulations have primacy over the Constitution, because state institutions are founded on the principle of checks and balances.

Second, the presidential system is different from the parliamentary system that adheres to parliamentary supremacy in that the executive is directly responsible to the people. The proposal to revive the GBHN as determined by the MPR means that it is very likely that the MPR will be restored as the highest state authority. The president will consequently be responsible to the MPR in implementing the GBHN as part of his duties in running the government.

Third, the matter of impeaching the president must be considered in relation to carrying out his executive responsibilities. Will the president be obliged to implement the GBHN? If he does not, will the president be overthrown? If a president violates the GBHN, will this be deemed an impeachable violation? Impeaching the president simply because of a policy decision is certainly very close to a parliamentary system.

If the president cannot be impeached for violating the GBHN, then the question is, what is the purpose of reviving the GBHN?

Fourth, another characteristic of the presidential system is that there is a clear separation of power between the executive and the legislative branches. If the GBHN is revived, the executive and legislative powers become blurred. The president is merely required to implement the GBHN as determined by the MPR. The president is accorded no space to realize the vision, mission and programs he has promised in his election campaign.

Fifth, the people directly elect the president in the presidential system. Reviving the GBHN renders the direct presidential election almost meaningless. If the people directly elect the president, but a separate state institution – the MPR – determines the president’s vision, mission and programs, the people have no logical or rational parameters for electing a president.

The proposal to reviving the GBHN to determine the direction of development by amending the 1945 Constitution to restore the role and functions of the MPR clearly contradicts a presidential system. Reviving the GBHN implies altering the principles of popular sovereignty, constitutional supremacy, presidential responsibility, presidential impeachment, separation of powers and the direct election. This means that the Indonesian system of governance will again embrace the supremacy of the MPR as it was before the Reform Era.

The final question: Is this a public need or a political demand? It is clear that the public do not reject the idea of amending the Constitution. But when the agenda only focuses on strengthening the MPR and the GBHN to follow up on a proposal to expand the number of MPR leadership seats, then the possibility that this avalanche is not a natural response to public needs is reinforced. This is a political demand. Perhaps an intention indeed exists to turn back history to the system desired by those of the New Order view.

Zainal Arifin Mochtar, Lecturer, Gadjah Mada University (UGM) Law School, Yogyakarta; Researcher, Center for Anti-Corruption Studies (PuKAT), UGM Law School