Civis 001/2017

Recent events showed the attempts to replace Pancasila and to change the Unitary State of the Republic of Indonesia, the sovereignty of the people. There were systemic efforts to indoctrinate the society with radical teachings. Other attempts like military training, Bali bombing, terrorism in Poso, public rally to support the Iraq and Syria Islamic State (ISIS) at Bundaran HI, Jakarta in 2014, several bombings in Jakarta—Marriot Hotel, Sarinah, Kampung Melayu, etc showed the escalation of the radical threats to change Pancasila and the 1945 Constitution as the foundation of our nation.

Some people believed all these happened caused by freedom to speak as stated in the 1945 Constitution after the Amendment, the bad consequences of democracy which we should avoid. This wrong perception and without proper handling by the government for more than a decade, since 1998, has given rooms for all kinds of ideologies to against Pancasila, the 1945 Constitution, and the Unitary State of the Republic Indonesia, as well as the understanding of Bhinneka Tunggal Ika (Diversity in Unity). Further comment: “Look! Democracy can’t overcome all these threats. Democracy isn’t suitable for Indonesia, we need to find other way, etc.”

 

A BIG TASK AWAITING

 

The term ‘democracy’ is often being interpreted as the freedom to do whatever we want. But, the term democracy has several forms with different meaning and purpose, such as: the majority democracy, liberal democracy, constitutional democracy, and the people democracy practiced by the left-socialist countries. Therefore, we need to clarify what kind of democracy is according to the 1945 Constitution.

Article 1 (2) 1945 Constitution clearly stated: “Sovereignty is in the hands of the people and is implemented according to the Constitution.” This point strongly links together the heartbeat of the sovereignty of the people (democracy) with constitution. Therefore, democracy and constitution are one coin with two sides, which commonly known as constitutional-democracy or nomocracy.

Within this frame, democracy is regulated and submitted to the highest law within the country, which is the constitution (Walter F Murphy, 2007). No doubt the 1945 Constitution is our highest authority, where all the laws and regulations and policies in terms of hierarchy are to be in agreement and not against the 1945 Constitution (Han Kelsen, 1967).

The Preamble of the 1945 Constitution states that the role of the government is to protect all people of Indonesia and to improve public welfare, to form a state that’s based on the sovereignty of the people whence affirming Pancasila as the foundation of the state. All the Articles within the Constitution serve to organise the foundational values of the Preamble into an established state. The Articles state that Indonesia is: A Unitary State with republic system, a constitutional state, recognise human rights, the circulation of authority periodically and democratically, and other procedures and structures of the state.

The 1945 Constitution serves as a framework that provides a broad space for the life of the nation and the state. Therefore, the life of the nation and state do not exist in a void without values of life, but we stand on the 1945 Constitutions’ values and principles. All constituents, governments as well as the people, are to work hand in hand to stand firm on these principles.

Next, all the laws and regulations should serve as a guidance to ensure peace and safety, solutions for conflicts, and to protect human rights so the Constitution could stand firmly.

House of Representatives in Article 20 (1), is given the authority to establish laws. Article 20 (2) regulate for each draft bills to become lawful must be discussed by the House of Representatives and the President to reach joint approval. Therefore, the House of Representatives and President individually and together are responsible that each bill is issued only in submission and in order to implement the 1945 Constitution.

Recently we discover there are many Bills and Policies actually weaken the state in their attempts to enforce the Constitution. Yet we don’t have enough necessary Bills and Policies to support the Constitution. This is our big task to straighten those Bills and Policies which will support the Constitution. As an example, UU No 17/2013 about Mass Organisations (Ormas) did not require Mass Organisations to uphold Pancasila and the 1945 Constitution, and no mention of sanction or ways to ban or terminate them.

We do not yet have Bills that are good enough, that will prevent and enabling the government or Indonesia Military Forces to take necessary action to tackle down suspected terrorism plans or activities. UU No 15/2013 regarding Combating Criminal Acts of Terrorism was not strong enough to prevent or to combat terrorism.

 

A FEW “WEIRDNESS”

 

Other concerns, Article 10 states that “The President is the Supreme Commander of the Army, the Navy and the Air Force.” But, in UU No 34/2004 about Indonesia Military (TNI), at Article 13 (2) said that the Chief Commander of TNI (Indonesia Military) is appointed and terminated by President upon the agreement of the House of Representatives. This is based on Article 3 (3) Tap MPR VII/2000 which has lower authority compared to the 1945 Constitution.

The contrast, the 1945 Constitution states that President is the Supreme Commander of the Indonesia Military (TNI) yet President could appoint or terminate his subordinate only with the approval by others. The Bill is not in agreement with the 1945 Constitution and weaken President’s position in administering his authorities and duties. In December 2015, The Constitutional Court rejected the petition to examine this Bill, the UU No 34/2004.

The authority of the Judicial Commission to supervise constitutional judges has also been weakened. For instance, in 2016 the Constitutional Court abolished the authority of the Judicial Commission to supervise the constitutional judges which in doing also weakened the role of the Constitutional Court to ensure that all Bills and Policies are inferior to and thus need to submit to the 1945 Constitution. The original intent of the 1945 Constitution Amendment’s team was: Judicial Commission, in respect of the freedom of the authority of judges, has the right to oversee all judges, except judges for games like in football matches. All Indonesia judges without exception. Because judges are human beings who are not free from mistakes, intentionally or unintentionally. As a fact, some constitutional judges as well as other judges were also involved in the corruption crimes. On the other hand, they may also be influenced by their political views.

The decision by the Constitutional Court in 2015 that stopped the participation of the Judicial Commission in the selection of first level judges also has weakened Article 25 of the 1945 Constitution which seeks to maintain the independency of the Judicial Commission in their role to carry out the law and to administer peace. In democracy, strong and fair constitutions are necessary. Therefore, the recruitments of judges will determine the future.

The other case happened in April 2017, where the Constitutional court banned UU No 23/2014 about Local Government, and transfer the authority to the Supreme Courts (MA). This decision weakened the hierarchy of constitutions and the system of a unitary state. Indonesia is a unitary state, that’s the main system. Autonomy, decentralisation are the sub-systems. And sub-systems are subordinate thus submit to the main system, the unitary state system. Therefore, based on Article 24A (1) of the 1945 Constitution, President has the right to control all the Bills and Policies which are under President’s authority. The appeal to the Supreme Courts could be done if President issued a decree to abolish the Local Bills, not the other way.

Above are few examples of the attempts to strengthen and straighten our constitution. By doing this we are also consolidating our democracy. A constitutional state which is restricted and unable to enforce law is not a constitutional state. Likewise, a democratic country that does not emphasise on law enforcement is not a democratic state.

 

(This article has been published in the Opinion Column, Kompas Newspaper on Tuesday 6 June 2017 with the title “Enforcing Constitution, Consolidating Democracy”).

 

Sumber foto: huffingtonpost.com

Writer

Drs. Jakob Tobing, MPA. President of Leimena Institute; Program Doctorate – Van Vollenhoven Institute, Rechtshogeschool, Universiteit Leiden; Indonesia Ambassador for South Korea (2004 – 2008); Chairperson of the PAH I BP-MPR, Amendment of the 1945 Constitution (1999-2002); A Member of The General Election Committee (KPU, 1999-2002); Chairperson of the General Election Committee (PPI, 1999); Vice-Chairperson of the Elections Supervisory Committee (Panwaslu, 1992); Member of Panwaslu (1987); Member of DPR/MPR (1968 – 1997, 1999 – 2004).