The search for consensus is taking time

Blair A King

The vague nature of the 1945 Constitution (UUD 1945) contributed to the rise of authoritarian dictatorships under both Presidents Sukarno and Suharto. Constitutional reform was thus one of the basic demands of the student movement that overthrew Suharto in May 1998. The First and Second Amendments passed in October 1999 and August 2000 have only begun to address the fundamental issues of constitutional reform in Indonesia. Much of the more important work lies ahead.

Despite its drawbacks, the 1945 Constitution has remained the basic framework for the ongoing democratic transition in Indonesia. UUD 1945 places implementation of popular sovereignty in the People's Consultative Assembly (MPR). One of the primary functions of the MPR is to establish and amend the constitution.

In October 1999, the MPR decided to begin in 2000 to hold annual sessions, in order to amend the constitution, to pass decrees, and to evaluate the government's performance. The 2000 Annual Session convened on August 7 amid persistent talk of a confrontation between President Abdurrahman Wahid and the MPR. In the event, the rumoured impeachment did not take place. Behind these headline events, however, a large amount of work was done on other issues a few of which made news, most of which did not.

In Indonesia, as in many other countries, 'constitutional' issues are not just resolved in the formal constitution but also in other sources of law, such as MPR decrees and laws themselves. In late 1999, the MPR Working Body (Badan Pekerja) formed two subcommittees, one to address formal constitutional amendments and one to draft MPR decrees, following the mandate given by the 1999 MPR General Session.

The first subcommittee (Ad Hoc Committee I, or PAH I) aimed to amend the existing 1945 Constitution rather than draft an entirely new one. At the beginning of its deliberations, PAH I reaffirmed support for the existing preamble, the unitary state, and the presidential system.

Responsibility for drafting new decrees for debate at the MPR Annual Session rested with Ad Hoc Committee II (PAH II).

Between November 1999 and May 2000, these two subcommittees conducted numerous consultations. After the legislature reconvened in May 2000, PAH I conducted a detailed chapter-by-chapter review of the 1945 Constitution, which it completed at the end of June. PAH II considered about 20 possible subject areas and narrowed the list down to six topics for seven draft decrees, among them some on regional autonomy and the separation of the police (Polri) from the military (TNI).

The final subcommittee reports were agreed at the end of July and were transmitted via the full MPR Working Body to the Annual Session. This session referred the reports to its commissions, who then reported back to the plenary session on August 15. The MPR approved the new decrees and the Second Amendment on August 18, the 55th anniversary of the promulgation of the original Constitution in 1945.

The PAH I proposals included revisions to 16 of the chapters of the existing 1945 Constitution, and draft text for five new chapters. In the event, only seven of these 21 chapters were approved.

Slow

There appear to have been two main reasons for the slow progress: the first related to political positions, the second to procedural issues. The political cause of delay was the lack of any real consensus on the major structural issues of the constitution. Elements in the MPR that are more conservative on constitutional change wished to conduct the debate in what they called a slow and cautious manner. The conservative camp is led by the largest bloc, PDI-P, and the TNI/ Polri bloc. Together these two blocs control 223 of the 695 MPR seats, nearly the 232 votes needed to block constitutional amendments. Both blocs argue that UUD 1945 is an 'inheritance of the nation's founding fathers' that should not be radically amended. Many of the other major parties say that, in the end, 'slow and cautious' may mean little significant reform at all. As compromises negotiated in PAH I broke down, debate started over again in Commission A. This led to procedural arguments as well.

Despite the difficulties, amended text was agreed for five chapters of the constitution: on regional authorities, the People's Representative Assembly (DPR), citizens and residents, defence and security, and national symbols. In addition, two new chapters, on human rights and on national territory, were agreed.

The constitutional amendments contained in the Second Amendment and several of the MPR decrees passed at the 2000 Annual Session can be divided into four themes: (1) civil-military relations, (2) the separation of powers and checks and balances, (3) the decentralisation of power to the regions, and (4) a bill of rights. Each of these themes contains important changes to the Indonesian political system.

The military was the backbone of the authoritarian New Order political system. Ending its role in domestic politics has been an important facet of the democratic transition. The 2000 MPR Annual Session represented one of the first opportunities for civilian politicians to address the military's role in politics on an institutional level. The results are mixed, but the MPR has laid a legal foundation on which the DPR can now build democratic, civilian control over the military in Indonesia. This foundation includes drawing the distinction between external defence, as the responsibility of TNI, and internal security, law enforcement and maintenance of public order, as the responsibility of Polri. It also includes requirements that presidential decisions to appoint and dismiss the TNI commander and Polri chief be approved by the DPR. Finally, the police will be fully subject and the military partially subject (for ordinary criminal cases) to the civilian judicial system. The previously all-encompassing military judicial system will now only handle breaches of the military legal code. The challenge now will be to pass laws and regulations that fully reflect these important changes, and then to implement the new system.

The main points of concern are the decision to extend the TNI/ Polri bloc's existence in the MPR until 2009, and the inclusion of the 'total people's defence system' (sishankamrata) doctrine in the constitution.

One of the primary weaknesses of the 1945 Constitution is the lack of clarity concerning one of the fundamental dimensions of any democratic system: is it presidential or parliamentary? Since the greater weight is on the presidential side, perhaps it is appropriate to call it 'presidential with parliamentary characteristics'. This MPR session endorsed the basically presidential nature of the system. At the same time, the MPR and DPR wish to restrict the formerly unchecked powers of the presidency. One of the challenges is that UUD 1945 does not recognise the separation of powers and checks and balances among the executive, legislative and judicial branches that is such an important part of a presidential system. On the whole, the amendments and decrees passed in August 2000 have helped to strengthen these principles, although they have not fully resolved the issue.

The New Order was a highly centralised political and economic system. Decentralisation of power was thus one of the central demands of the reform movement in 1998, and after Suharto resigned many regions began voicing their discontent. The transitional administration of President B J Habibie responded with a policy of 'wide-ranging regional autonomy'.

Despite concessions by the centre (Laws 22 and 25 of 1999), many regions remained dissatisfied that regional autonomy was based only in laws that were in essence a 'gift' from the centre that could be rescinded at any time. Thus pressure continued for the decentralisation of power to the regions to be enshrined in the constitution, making it harder to reverse in the future. Through the amendment to chapter VI of UUD 1945, the general spirit of Laws 22 and 25 is now reflected in the constitution. A strongly regional flavour is given by the principle that regions may act on any subject that is not reserved by law to the central government. The primary challenge remains the implementation of these laws, in a context of resistance from line ministries in Jakarta, poor human resources in local bureaucracies, and little tradition of government accountability to elected bodies at any level.

Human rights

The original 1945 Constitution contained few guarantees of civil and political rights. It more often referred to citizens' responsibilities to the state. It is thus quite significant that a substantial new chapter on human rights has been added to the constitution as part of the Second Amendment. The provisions of the new chapter XA of UUD 1945 on human rights have proven controversial, despite having been substantially drawn from the Universal Declaration on Human Rights (UDHR). In particular, the clause prohibiting prosecutions under retrospective legislation originates from Article 11(2) of the UDHR. The juxtaposition of international human rights standards and the calls for justice for past human rights violations by the military and police has created a dilemma for Indonesian and international human rights activists. However, the controversy surrounding this clause has largely died down in the months following the annual session. Indeed on November 6 the DPR passed a law establishing human rights courts across the country that are based in the current criminal code, thus avoiding the retrospective problem.

Some of the material that was not agreed at this MPR session was fairly routine, but some has proven highly controversial, relating to the basic structure of state institutions. These chapters include the form and sovereignty of the state, the structure and role of the MPR, executive powers (including the method of election of the president and vice president), the possible creation of an upper chamber representing regional interests (Dewan Perwakilan Daerah or DPD), and the procedures for constitutional amendment.

The MPR has decided to use the remaining material prepared by PAH I as the basis for a continuing constitutional debate, scheduled to take place between now and August 2002. This is the latest annual session at which it will be possible to pass major changes to the structure of state institutions with enough lead time to conduct elections under the new arrangements in 2004.

Many MPR members at the 2000 Annual Session may have felt that fundamental decisions on structural issues should not be finalised in an atmosphere of high tension over the relationship between the current president and the current legislature. Whether the atmosphere will be more conducive to debate on these issues in 2001, or 2002, is not yet known. However, the additional time available does create a very important opportunity for wider public debate.

Blair A King (baking@lycos.com) is a PhD candidate in political science at Ohio State University. In 1999 and 2000, he worked at the Jakarta office of the National Democratic Institute for International Affairs (NDI). This article is drawn from a study he co-authored for NDI (' Indonesia's bumpy road to constitutional reform', see www.ndi.org)