(Re)Organizing Constitutional System (1)

Civis 002/2013

Upholding Presidential System

On July 16, 2013, in front of chief editors of various mass media President SBY (Susilo Bambang Yudhoyono) raised five future challenges to the nation. One of them, he questioned whether we chose a pure presidential system or implemented a semi-parliamentary constitutional system. Is the current checks-and-balances system right? On that occasion President SBY also said that people often hoped the President to act as in the authoritarian era, whereas in the current democratic era, the President (government) should follow the democractic principles and rule of law.

Surely there’s a reason why he raised that issue. Mr. SBY seems to judge the current system is not compatible. In general, as I already wrote some time ago, our current system is often suggested as “presidential system with parliamentary taste”. Presidential system in official form with parliamentary tendency in practice. In many things, the President as the chief executive is assumed to submit to the Parliament (DPR, People’s Representative Council)—for example in forming laws, including State Budget Law, to follow the Parliament’s choice in appointing Ambassador since the Parliament does the fit-and-proper test of the candidates, and to obtain Parliament’s approval in appointing the National Military Commander and National Police Chief. The President depends heavily on the political support configuration in the Parliament. Thus, President SBY (inevitably?) built a coalition cabinet, hoping that the coalition parties would support his policies in the Parliament. So much so that the power pendulum that was initially very heavy on the President—while the Parliament and others were weak—swung too far to the Parliament. The Parliament becomes too powerful and the President’s power is almost completely eroded, weakened, and—as concluded in the National Defense Institute’s Alumni convention in 2007—no longer effective.

On the other hand, there is an opinion that a presidential system in practice, especially in a country where the political culture is not yet mature and the civil society is weak, can easily turn into an authoritarian system, like what happened in our country before and in some other countries.

Looking at this fact, then the question is: should we keep our presidential system or change it into a (semi-)parliamentary system by amending again our amended 1945 Constitution?

However, while constitutional amendment is not taboo, before we move further, we should ask: when implement as it should be, will a presidential system always or tend to become authoritarian? Does the benefit of presidential system outweigh its downside for a big and highly diverse developing country like us? Moreover, has the presidential system adopted by the 1945 Constitution (Article 4(1)) been implemented as it should be? Or, are there any articles inside the 1945 Constitution or any laws below the Constitution that deviate from the 1945 Constitution that are inconsistent with the presidential system?

Of course another question is: does the (semi-)parliamentary system suit us, a large and highly diverse unitary state that is still a developing country?

Presidential System and Party System

The 1945 Constitution’s amendment, which was done in one series of process from 1999 to 2002 (i.e. it is not “amended 4 times”), has intentionally chosen to continue the presidential system, not a parliamentary system, for several reasons. Knowing that Indonesia has many political parties (48 parties participated in the 1999 election), there’s an opinion that parliamentary system is more suitable. However, our past experience with parliamentary system (1950-1957) shows a prolonged political instability with ever changing government cabinet (6 cabinets in 7 years) that deemed it incapable of functioning. Thus, the minutes of meeting of the 1945 Constitution’s amendment noted that nobody chose the parliamentary system and everybody chose to keep the presidential system. Nonethless, everybody was also aware that presidential system can potentially become authoritarian, as happened in our country in the past and in other countries as well.

Therefore, presidential system was chosen because it’s regarded to be more stable and potentially more productive because the office has a fixed term and executive power is centralized on the President, so that it should be able to respond to issues and challenges more quickly.

But it should be noted that the choice was followed by other regulations to limit the power, such as rule of law (Article 1(2)), human rights (Article 28A-J), limitation to hold the presidential office for a maximum of two terms (Article 7), checks-and-balances mechanism in separation and sharing of power such as in assigning the power of legislation, budgeting, and supervising to the Parliament (Article 20A) and the free and independent judiciary (Article 24(1)), judicial review power by the Constitutional Court (Article 24C), free Financial Supervisory Body (Article 23E), direct general election and presidential election as a democratic and periodical mechanism of leadership circulation (Article 6A and 22E), affirmation of political parties as constitutional instrument (Article 22E(3)), etc.

Furthermore, the minute of meeting of the Constitution’s amendment also noted that the political parties wanted to reduce the number of political parties in the government, to build a simple multi-party system by implementing electoral threshold. Rules for presidential nomination and election were also arranged in the same way, proposed in one package by a political party and/or a coalition of political parties participating in the general election before the election itself (Article 6A(2)). This was meant to ensure the coaltion was formed based on their vision and mission agreement, not just a transactional coalition if done after the election. This political engineering was devised so that after several general elections, the number of parties will reduce and their political behavior will match the presidential system. In other words, the 1945 Constitution also consists of engineering steps that must be taken, among other things, to build a suitable political party system.

President and Parliament

The 1945 Constitution rules that the President and Vice President as one pair is to be elected directly for a five year term office and can only hold the office for two consecutive terms. The President is not responsible to the People’s Representative Council. Even though the People’s Representative Council can ask the People’s Consultative Assembly (MPR) to impeach the President/Vice President, it is the People’s Consultative Assembly that has the authority to execute the impeachment, after the Constitutional Court rules that the President has violated the articles of the Constitution as indicted by the People’s Representative Council (Articles 7A and 7B). Hence, it’s not easy for the People’s Representative Council to shake the President’s office.

Although the legislative authority was moved from the President to the People’s Representative Council (Article 20(1)), the President is not under and does not have to submit to the People’s Representative Council. A legislative bill can only be passed as a law only if it has been deliberated and approved together by the People’s Representative Council and the President. In this case, the People’s Representative Council with its 560 members is one institution and the President is also one institution, both with equally strong position and voice. If all members of the People’s Representative Council have one opinion, but the President doesn’t agree, then the legislative bill cannot be passed as a law. It means that the President doesn’t have to submit to the People’s Representative Council, i.e. the Parliament. And vice versa.

During the reform period, one President had once disagreed with a legislative bill, even though the Parliament (People’s Representative Council) was adamant to pass it as the Batam Authority Law. Therefore, to make a law, the highest legal product after the Constitution, the Parliament and the President must deliberate together to reach a consensus, as directed by the fourth principle of Pancasila. If the President or the Parliament wants to pass a legislative bill, it must be done through intensive approaches and lobbying, open or close, to convince the President or the majority of the Parliament. In this relationship, the people’s support for the President during the presidential election must be used as a political capital. This attitude can overcome the potential of gridlock over a legislative bill. Moreover, the Constitution gives an additional authority for the President to overcome a gridlock (Article 22).

If a legislative bill has been approved by both the Parliament and the President, the bill must be enacted by the President as Head of State. In the past there was a case where a legislative bill (on broadcasting) had been approved by the Parliament and the President but was never enacted by the President, so that the bill has never become a law. To avoid this and to affirm the legislative power in the Parliament, if a legislative bill that has been approved by the Parliament and the President is not enacted by the President within 30 days, then the bill will be automatically self-enacted (Article 20(5)). Therefore, it’s not true that the Parliament can force a bill to become a law without the President’s approval. With this process, the constitutional amendment doesn’t have to give a veto right to the President, because it’s no longer needed and not in line with the spirit of deliberation.

In a comparative study discussion in Washington DC, a United States constitutional expert acknowledged that their veto system could potentially put a heavy political burdne when the President vetoed a law that had passed the Congress (House or Senate). Therefore, in practice, U.S. President and Congress always conduct intensive lobbying to reach a consensus before a bill is passed into a law.

Ambassador is the representative of a nation and state, and the President’s personal representative in friendly countries. In the past, it’s not uncommon to use the ambassadorial post as a gift or a punishment for certain individuals. Hence, the Constitution’s amendment emphasizes that in appointing ambassadors, the President needs to pay attention to the Parliament’s consideration (Article 13(2)). But in practice, in a one sided way the Parliament turns the consideration into a fit-and-proper test. As if it’s the Parliament that determines whether someone is worthy to become an ambassador or not. In the past, even though the Parliament’s consideration was heeded, it was the President who determined the ambassador according to his/her policy. However recently it seems that the President has bound himself to the fit-and-proper test result from the Parliament.

According to the Constitution, the President holds the power to govern (Article 4) and the highest authority over the Army, Navy, and Air Force (Article 10). In reality, to appoint the National Police Chief and the National Military Commander, the law requires the President to gain the Parliament’s approval (Law no. 2/2002 on Police, and Law no. 34/2004 on National Military). It means that the President who has been given the highest authority by the Constitution still needs to ask the approval of other equal institution to determine his/her subordinate in the executive office, even though the subordinate is responsible directly to the President.

This article was published in the Suara Pembaruan newspaper, on July 24-25, 2013, with the title “(Re)Organizing Constitutional System: Upholding Presidential System” (in two parts).