Civis 004/2016

III. Consolidation of democracy

With such background, various progress and shortcomings as listed above, we will face two possibilities in the future.

First, we could manage to build a democratic system, enforce the law, and continued the sustainable development towards an Indonesia which is fair, prosperous, also respectful of human rights, Bhinneka Tunggal Ika, religion and religious living and have free and mutual respect.

Secondly, we could be plunged into uncertainty, chaos, violence, radicalism, terrorism, destruction of the system, followed by the split and the urge to go back to the old system or the new authoritarianism.

The possibility of what will happen depends on what has been done, what we will do and to what we do not do as a nation.

First, the democratic system, with all its faults, remains the best option we have because the basic principle is respect for human dignity.

In relation to this, we talk about the importance of consolidating democracy, so that our state institutions and procedures carry the substance and the constitutional order at the national and regional levels.

Of the many areas that are in need of consolidation, or also referred to as sustained reformation we choose a few as examples.

We need to join efforts to build a government organization (organizational development – OD) so that the bureaucracy in all sectors can fulfill their duties in governmental dan development programs according to the principles of the constitution. If the bureaucracy is neat and reliable, it will bring improvements the community while improving the efficiency of resource use and preventing corruption.

Reformation of the party system is also needed. The first is in terms of quality. The 1945 Constitution Amendment established political parties as an instrument of the constitution. Recruitment leadership and absorption, delivery and processing community aspirations in life of the state by political organizations. It is necessary to build the system so that the quality and integrity of politicians can be improved. To that end, the financial state and funding for political parties (eligible ones only) should be supported by the state and treated as the object of state audit examination.

It can be said that political parties are the ones that moves our state system, although in general it looks disappointing if not depressing. There are many state officials, members of Parliament, ministers, heads of regional and so on, who are not qualified and problematic. Many of them are involved in corruption and a large number locked up in prison.

Oligarchy leadership in parties needs to be prevented by the circulation of an open leadership and political cadre education is a must. Only those who possess political cadre education are allowed to be nominated in the election. In such circumstances, our political arena will be filled by politicians who have ideals and are ready because they have undergone considerable political education.

In terms of number, although establishing a political party are among the basic rights of citizens, but the number of parties who directly participate in the state institutions should be limited. Electoral threshold needs to be increased, so that the number of parties with seats in the House of Representatives is not a lot, but not too little, so that the parties can still accommodate the political currents of Indonesian society which is very complex.

Money politics in the elections system must be combated. Elections, according to the constitution amendment, is a constitutional instrument. Therefore, the Act must affirm that all eligible citizens are entitled and obliged to follow the elections. Citizens should not be prevented from participating in the election. On the other hand, every voter should come to the polls and there needs to be sanctions if they do not come. But freedom and confidentiality of who they vote for should be guaranteed, even if they’re not going to vote for anyone in election booth.

Next is the state of law enforcement, including the development and institutional consolidation. Let us bear in mind that a country which by its constitution stressed the rule of law but was not able to enforce the law is basically not a state law. Similarly, a democracy without the rule of law is not democracy but anarchy, and will soon collapse.

But it should be noted that in order to enforce the law an authoritarian system is not needed. It is impossible for an authoritarian government to enforce laws that respect human rights (rule of law). Only authoritarian governments can enforce the law according to his wishes (arbitrary – rule by law). While democracies advance through enforcing the law seriously and firmly.

In practical terms, the rule of law requires a radical overhaul and construction of maximum capacity, with the purpose of firm enforcement, which may be a strong prevention against abuse of authority. Misuse of authority and corruption around law enforcers should be given strict and heavier sanctions. Recruitment of judges at all levels, including district court judges, justices and constitution judge, also prosecutors, needs to be tightened.

The police force, which is on the forefront of law enforcement, needs to have improved education and training. Their numbers should be multiplied (the ratio the Indonesian police force is smaller for example than Malaysia) and operational expenditures paid back. Similarly, the legal basis should be equipped and the doctrine of their duty should be emphasized, which should not be flexible, so there are no field policies. Enforcement by the police and prosecutors should be firm and rigid (legal-formal).

Such approach would restore the sense of justice and social disciplines in the middle of the community, both in rural and urban areas, what is allowed and what is not allowed.

Leave it to the judges of the court to enforce law and justice by considering the sense of justice wisely.

It is not exaggerated to say that during the next 5 years, the fate of democracy and continuation of development is in the hands of law enforcement performance, in particular the police and prosecutors, in addition to the judges.

We also need to make major reforms in the judicial environment. The existence of the Judicial Commission should be used, as appropriate, as an institution that conducts an external check on judicial power so that the independent judicial power in the state based on law is not untouchable.

According to the 1945 Constitution, the Judicial Commission does not only give sanction recommendations for violation of the law by a judge but also still respecting the independence of the judicial power, the Constitution authorizes the Judicial Commission to act, to maintain and uphold the honor, dignity and behavior of judges (Article 24B paragraph (1) of the 1945 Constitution).

In the meantime, we need to record the performance and give appreciation to the Corruption Eradication Commission that for all its faults offers hope for improvement, though the seemingly decisive action of the Corruption Eradication Commission still doesn’t deter the perpetrators of bribery and corruption.

As our historical experience in the 1950s, particularly during the parliamentary system and the Constituent Assembly, the people’s anger was directed at the behavior and performance of politicians at the time. They are busy jockeying for power, the cabinets were unstable, busy sharing license, in search of wealth as much as possible, so that it has raised anti-party behavior and even undermine public confidence in the democratic system.

In the midst of disappointment and anger of the people, the dreamers and those who really want to enforce authoritarian system gained momentum to pave the way for anti-party and authoritarian rule in the past. That was how democracy at that time ended. Similar signs are also visible now.

Hence, democracy must be supported by state institutions, both super-structure like the effective branches of state power, as well as infrastructure of society, including NGOs, mass media, religious organizations, and others, who are aware.

In the Indonesian context, the democratic system we have chosen is a constitutional democratic system, where democracy and the rule of law are made into one, intertwining with each other. The 1945 Constitution confirms that democracy (popular sovereignty) is controlled by the Constitution [Article 1 (2)] and the constitution was based on Pancasila (Preamble) and respects human rights (Chapter XA). In establishing the law, it is not the will of the majority that decides, but the conformity to Pancasila as the constitutional base and human rights that must be achieved through consultation [Article 20 (2)]. All legislation must be in accordance with the Constitution (Article 24C).

Democracy such as that is deliberative democracy. Thus our democracy is not a majoritarian democracy. Furthermore, our system relies on the law of the country, where the people are protected from arbitrary actions of power [Article 1 (3)]. They are also protected from powers that does not care about the fate of the poor and of those who are less fortunate and who ignore the legitimate aspirations of its people.

The 1945 Constitution expressly ordered the state to care for justice and public welfare (Chapter XIV), which is now often referred to as social human rights. Therefore, our democracy is not a liberal-capitalist democracy. In addition, our state of law ordered the state and the government to protect its citizens against acts of arbitrary towards fellow citizens [Article 28 paragraph (4) and Article 28j].

(This paper was presented by the writer in the Strategic Forum of Church and Politics, in Jakarta, April 7-9, 2016)

The Writer

Jakob Tobing, MPA. President of Leimena Institute; Program Doctorate – Van Vollenhoven Institute, Rechtshogeschool, Universiteit Leiden; Ambassador of the Republic of Indonesia to the Republic of Korea (2004-2008); Chairman of the People’s Consultative Assembly’s Ad-Hoc Committee I for the amendment of the 1945 Constitution (1999-2002); member of the General Election Committee (KPU, 1999-2002); Chairman of Indonesia’s National Election Committee (PPI, 1999); Vice Chairman of National Election Monitoring Committee (Panwaslu, 1992); and member of Parliament (1968-1997, 1999-2004).