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Civis 002/2013
Two Reform Tracks Complication
1998 reform demands were eventually absorbed by the People’s Consultative Assembly (MPR), the institution authorized by the constitution to reform the state system. The reform then proceeded in two tracks in the Assembly. The first track was the amendments to the 1945 Constitution, which were prepared by the Ad-Hoc Committee (PAH) for the Amendment of the 1945 Constitution. The amendments began with the initial agreement to keep the Preamble, unitary state, and presidential system. It was followed by the reintepretation of the manifestation of people’s sovereignty, changing the Assembly (MPR) from the highest state institution with full authority to execute people’s sovereignty to a state institution with specific authority.
It was asserted that the people’s sovereignty to be executed in accordance with the Constitution (constitutional democracy). Indonesia as a state grounded on rule of law, respecting human rights, establishing mechanism of checks and balances, affirming independent judiciary power, a direct presidential election and a democratic and periodical general elections.
The second track of reform was through various Assembly (MPR) decrees prepared by a different Ad-Hoc Committee (PAH). This track worked in an effort to immediately address the various political upheavals, upholding democracy, justice and the rule of law, and worked on the basis that the Assembly (MPR) was the highest state institution.
The first track (i.e. amendment to the Constitution) completed in four stages. Ideas of changes to the 1945 Constitution had been discussed since the Assembly’s General Session in 1999, and were settled gradually in the 1999 General Session, 2000 Annual Session, 2001 Annual Session, before finally everything was completed in the 2002 Annual Session of the Assembly. This track produced the amended 1945 Constitution. The amendments to the 1945 Constitution were done in one continuous process consisting of four stages. The Assembly (MPR) did not do the amendments for four times.
The second track (i.e. the MPR/Assembly decrees) also produced a number of MPR decrees in 1999, 2000, 2001, and 2002, among others the TAP III/MPR/2000 on Source of Law and Order of Laws, TAP IV/MPR/2000 on the Policy Recommendations in Regional Autonomy Implementation, TAP VI/MPR/2000 on the Separation of the Military and Police, TAP VII of the Role of the Military and Police. Earlier, the Assembly’s Special Session in November 1998 also produced TAP XV/MPR/1998 decree on Regional Autonomy.
Unsynchronized
Not all materials produced by the two reform tracks in the Assembly are in sync with one another. Finally, the 2003 Annual Session of the Assembly with its TAP MPR I/MPR/2003 decree declared that all MPR decrees that were inconsistent with the amended 1945 Constitution would no longer apply when the related law was formed. However, there are still some differences in the substance of the amended 1945 Constitution and the various MPR decrees that are causing complications in the constitutional practice until now.
In 2001, Section 24C of the 1945 Constitution states that the authority of judicial review rests on a judicial institution, the Constitutional Court. Previously, the Assembly decreed that the constitutionality test authority rested on the Assembly (i.e. MPR) as the highest institution authorized to make the Constitution (TAP III/ MPR/2000). Therefore, according to TAP MPR I/MPR/2003 (above), the enactment of Law no. 24 on the Constitutional Court nullified TAP III/MPR/2000 decree. Thus judicial review is no longer done by the political institution (Assembly/MPR), but by the Constitutional Court. Until today there is not (yet) any complication on this.
Through the amendment in 2000, Article 30 (2) of the 1945 Constitution asserts that national defense and security efforts are done through the Universal People’s Defense And Security System (Sishankamrata) with the Military and Police as the main force, and the people as the supporting force. Furthermore Article 30 (3), (4), and (5) of the 1945 Constitution distinguishes between military duty with the police and orders the arrangement of authority relations in carrying out the task.
In the same year the Assembly set the TAP VI/MPR/2000 decree that separated both the roles and functions, and the organizations/institutions of military and police. If there is a correlation between defense and security activities, the military and police must work together. Furthermore, TAP VII/MPR/2000 decree regulates military and police roles separately. However, both TAP VI and TAP VII decrees were not founded on the Universal People’s Defense And Security System.
TAP VII/MPR/2000 decree asserts the appointment and dismissal of the Military Commander and Police Chief by the approval of Parliament (DPR). In the 1945 Constitution, Article 4 declares the President holds the power of government and Article 10 declares the President holds the highest authority over the military. Thus, if in a state of necessity or emergency the President should dismiss the Military Commander or Police Chief (note: the President’s subordinates), the President should ask for the Parliament’s approval, then it could be interpreted that the Military Commander and Police Chief have two superiors: the President and the Parliament. This MPR decree expires when the related Law is enacted, but the Law no. 2 (2002) on Police and the Law no. 34 (2004) on Military still refer to the Assembly’s TAP VI and TAP VII decrees, instead of the Constitution.
Article 18 (1) of the 1945 Constitution asserts the hierarchical relationship between central, provincial and regency/city governments, and also asserts that both province and regency/city have autonomy and assisting duties as regulated by the Law. Articles 18A and 18B states that specificity, diversity, and special charateristics to be noted, recognized, and respected within the framework of the Unitary State of the Republic of Indonesia. Article 18 (4) states that regional elections to be conducted democratically.
TAP XV/MPR/1998 decree asserts the implementation of regional autonomy at level I and II with respect to justice and financial balance, based on the principles of democracy by taking into account regional diversity. TAP IV/MPR/2000 decree recommends granting gradual autonomy to province, regency/city, village/nagari (customary village)/ clan. However, both TAP XV/1998 and TAP IV/2000 do not assert the hierarchical relationship between the central government and the provincial and regency/city governments.
Law no. 32 (2004) further outlines the democratic principle in the regional autonomy, but it rather follows the Assembly’s TAP decree, and less firm in building the government’s hierarchical relationships, and lack of attention to the regional diversity. The Constitution states that regional elections should be done democratically and should pay attention to regional diversity. However, Law no. 32 (2004) generalizes it by decreeing a direct election for all. Provincial government is not given the authority, for example, to control the activities of its second level (district) government.
Various complications of the two reform tracks are already happening and quite disturbing to the journey of this nation and state. The Universal People’s Defense And Security System (Sishankamrata) doctrine as the foundation for the State’s defense and security must be upheld. Accordingly the distinction of tasks and organizational separation of the military and police should be reorganized. Appointment and dismissal of the Military Commander and Policy Chief do not need the approval of Parliament, but simply ask for consideration from the Parliament.
Regional autonomy implementation should be straightened up in accordance with the spirit of empowering regions to develop potentials and build people’s welfare, along with a strong Central and Regional relationship within a unitary state. Direct regional elections should be reviewed and should not be uniform (case of Yogyakarta Special Region). Now, after more than a decade of reform, it’s time to consolidate the reform, improve existing weaknesses and to continue reform at a more technical-instrumental level.
(This article was published in the Suara Pembaruan newspaper, on November 4, 2013, with the title “Two Reform Tracks Complication”).
Drs. Jakob Tobing, MPA
President, Leimena Institute
Jakob Tobing is one of the most prominent architects of the new democratic Indonesia. He played an instrumental role in Indonesia’s transition from the authoritarian rule to democracy in 1998. He was then entrusted as the Chairman of the 1999 National Election Committee and the 1999-2004 Parliamentary Commission on the Constitutional Amendment – the two important bodies that decisively replaced authoritarianism with democracy in Indonesia. Under his leadership, the constitutional amendment has guaranteed the principles of democracy, rule of law, and human rights, which is now seen as a model by many other countries. He was a student leader against the old order in 1966, appointed as member of parliament in 1968, and became the Vice Chairman of the ruling party during the Suharto’s regime. But during the height of the authoritarian regime, he joined the opposition and was invited to join and establish the reform PDIP party by its Chairman Megawati Soekarnoputri, who later became the President of Indonesia. President Habibie decorated him with Mahaputera Utama medal in 1999. After more than three decades as a member of parliament, in 2004 he was appointed as the Indonesian Ambassador to the Republic of Korea, a leadership role which again he performed so outstanding that the Republic of Korea awarded him the Gwanghwa medal—the country’s highest diplomatic award. He received his graduate degree from the John F. Kennedy School of Government, Harvard University, USA.