(Re)Organizing Constitutional System (1) Part 2

Civis 002/2013

Upholding Presidential System

Watching all the above state practices, it is understandable why our government system is often quipped as neither-nor system. Neither this, nor that. Presidential system with parliamentary flavor. There is an inconsistency between the constitutional system and its practice.

With this analysis, there seems to be no urgency to do another constitutional amendment, if we only need to straighten up the presidential system practice. What needs and can be done is to straighten up the rules and regulations, and state practices, so that they are aligned with the constitution to uphold presidential system.

Replacing presidential system with semi-parliamentary system (or, as some suggested, semi-presidential system as in France or South Korea, where a prime minister is elected by the parliament, alongside a directly elected president) requires an amendment to the 1945 Constitution, which is not easy.

It’s true that essentially the 1945 Constitution is not outside the system and therefore can’t be changed except by revolution. It is in the system but at the top. Meaning that it can be changed, even though changing it requires a stricter requirements and procedures than changing a regular law (Article 37).

In the meantime, since our political choice is presidential system, then the practice needs to be straightened up. The options are to study if there are any articles in the 1945 Constitution that need to be fixed through amendment, or if there are any state policies and practices that are inconsistent with the Constitution.

Party system development engineering must continue consistently. Electoral threshold should be kept sufficiently high, for example 7-10%, to effectively reduce the number of political parties in the political suprastructure. However, the civil right to establish political party must be protected and the requirements to participate in the election are determined based on the nature of Indonesia as a unitary state that is vast and diverse. Therefore, every political party must prove itself to have a national scale. Since the Constitution has ruled that the participants in the election are political parties, then political parties are constitutional instruments. However dissatisfied we are with their behavior, they are the ones to decide who will be the legislative candidates. The open-list system currently implemented is a distorting our efforts to build our political and party system, because it denies party’s political education and party cadres preparation. Thus, it must be returned to a closed-list system. Furthermore, as a constitutional instrument, political parties that have representatives in the Parliament (DPR) should be funded by the state. But political parties must also be transparent and accountable to the public. In addition, any political party participaing in the election, alone or in coalition, should be able to nominate presidential and vice presidential candidates without any kind of threshold.

This package can produce a party system (in the government) that is simple and compatible with presidential system. It should have been implemented in the 2004 election. But, since the laws have ruled otherwise, we need to hold its implementation until 2019 election.

In making the laws, the Parliament (DPR) and the President should develop a healthy partnership and protect their own authority boundaries. Political support that the President has, both the presidential election votes and supporting political parties coalition, is the capital for his policy success. If one party hinders a legislative bill in any way beyond the constitutionally granted authority and responsibilities, then the other party can request the Constitutional Court to intervene (Article 24C(1)). Both the Parliament and the President are responsible to uphold the Constitution and can be held accountable.

Any laws that are inconsistent with the 1945 Constitution, including Law No. 2/2002 on Police and Law No. 34/2004 on Military, can be revised and conformed to the Constitution, by judicial review or making new laws. Political trauma over the abuse of military and police forces in the past and the reform euphoria that follows cannot justify violation of the Constitution. It is not impossible that office appointments that need parliamentary approval have opened doors for certain political negotiation. To prevent the abuse from repeating, it suffices to ask for the Parliament’s opinion when appointing National Police Chief and National Military Commander. Parliament’s opinion is highly needed in the appointment of important office positions, such as National Military Commander, National Police Chief, Ambassadors, and maybe several strategic ministerial positions. It can be done through public hearing, so that people can know the reasons for such appointments. But opinion is opinion. The President is the one to decide and bear all the risks of that decision.

In current situation, where political parties abound, Parliament (DPR) is dominant while some of its members are in trouble, rule of law is not enforced, social discipline is weakening, it is reasonable why people are demanding the President to act firmly, even though the President’s firmness may seem authoritarian.

However, the President doesn’t need to be afraid to use the power granted by the Constitution, to take necessary decisions in the right time, and particularly to uphold rule of law firmly. At any rate, without rule of law, democracy—both in presidential and parliamentary systems—will produce chaos and fall apart in the end.

We don’t need to be afraid of the President’s great power, because the Parliament is elected by the people, cannot be dissolved by the President, and has the power of legislation, budget, supervision, etc. Furthermore, now the judiciary power is independent, political parties are maturing, press is free and frank, NGOs and the people are active, civil society is strengthening, and the presidential term is definite and limited.

Therefore, what needs to be done immediately is to fix the rules and regulations and the state practices that are deviating. In this matter, all parties, first and foremost the Parliament and the President, are responsible to uphold the presidential system as it should be.

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).