Amending the Constitution, GBHN and Presidency

Kompas/Wawan H Prabowo

The Constitutional Court’s panel of judges presided over by Aswanto (center) holds a hearing on the judicial review of Legislative Bodies Law at the court in Jakarta on 21 Jan. 2020. The plaintiff claimed the lawmaking process breached the prevailing procedures stipulated in the House of Representatives rules. The law was neither listed in the National Legislative Program (Prolegnas) 2015-2019 nor the Priority Prolegnas 2019.

One of the constitutional issues that has emerged recently is the question of an attempt to amend the 1945 Constitution again and include an amendment to Article 7 of the Constitution regarding the term of office of the president.

By all accounts the amendment deals with an effort to change the two-term limit of the office and make it more flexible so that a president can serve more than two terms. The People’s Consultative Assembly (MPR) has denied that there have been proposals for the amendment and discussion of amending Article 7 of the 1945 Constitution.

President Joko “Jokowi” Widodo has said he remains supportive of the two-term limit as stated in the Constitution and has no intention of pursuing three terms in office.

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Do the two statements immediately resolve the constitutional issue? Not necessarily, because there is no smoke without fire. The smoke, of course, is first that the MPR seems to have reinitiated the fifth amendment with the issue of State Policy Guidelines (GBHN) and second that the dynamics of political life may undergo rapid changes.

Several years ago, Bambang Soesatyo, who is currently the speaker of the MPR, was quite enthusiastic about the idea. This means there must be much deeper verification to prevent it from becoming a project for anyone.

Reviving the GBHN

After the Constitution was amended four times, from 1999 to 2002, we understand that the MPR is no longer the highest state institution, and therefore, this changes the process of distributing people\'s sovereignty through the MPR to a model of direct separation through the Constitution. Of course, one of the implications is direct presidential elections and the end of MPR presidential elections. As a consequence, the president is not accountable to the MPR. The president is no longer required to implement the GBHN set by the MPR. The amendments to the 1945 Constitution strengthen the presidential system in Indonesia.

However, in the end, there was a change by continuing to make the MPR an institution that had membership and the composition of the chairperson and vice chairperson, even though the MPR almost no longer had independent authority.

The initial design of the MPR was indeed a joint session between the House of Representatives and the Regional Representatives Council (DPD), as suggested by experts at Worker Body meetings during amendments to the Constitution. However, in the end, there was a change by continuing to make the MPR an institution that had membership and the composition of the chairperson and vice chairperson, even though the MPR almost no longer had independent authority. Likewise, the GBHN was removed from the MPR and the country\'s development planning was finally replaced by a legal product (UU) that was enacted by the House together with the president.

Like the GBHN, the National Development Planning System Law (SPPN) and the National Long-Term Development Plan Law (RPJPN) are used as the state\'s guidelines in all fields of development. The only differences lie in the institution that compiles them and in the accountability pattern for their implementation. This difference triggered the birth of the idea of reviving the GBHN as the basis for state development planning. The proposal was submitted through amendments to reinstate the GBHN as the basic guideline for integrated development planning set by the MPR.

KOMPAS/HERU SRI KUMORO

President Joko Widodo (right) has a tete-a-tete meeting with general chairperson of the National Mandate Party who is also deputy speaker of the People’s Consultative Assembly (MPR), Zulkifli Hasan, at Merdeka Palace, Jakarta, Monday (14/10/2019). The meeting discussed a number of things such as amendments to the 1945 Constitution, economic, social and political affairs, security and coalition exploration in the government. A few days earlier, Joko Widodo had also met with Democratic Party chairperson Susilo Bambang Yudhoyono and Gerindra Party chairperson Prabowo Subianto.

The thought of reviving the GBHN was motivated by several assessments. First, the poor development system of the country is increasingly incompatible and tends to be short-term. The reason for this is that once there is a change of leader, there is also a change of vision and mission and development programs.

Second, since the amendments, Indonesia does not have an official set of state guidelines that leads development in all fields by all state institutions (executive, legislative and judiciary) and other supporting state institutions. The National Long-Term Development Plan (RPJPN) and the National Medium-Term Development Plan (RPJMN) as substitutes for the GBHN are considered very president-centric.

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The three visions of the state in the 1945 Constitution need to be carried out and their implementation must be outlined by all state institutions, not only by the president. So the idea of reviving the GBHN must be put in the framework of simply restoring the vision of the state guidelines.

Implications for the presidential system

The idea of a state vision looks attractive but has no small implication for the presidential system. First, one of the characteristics of the presidential system is the supremacy of the constitution, because the president is a "king" who is given constitutional boundaries. The constitution should be a protector and at the same time a barrier. Reviving the GBHN as a set of state guidelines that directs development in all fields by all state institutions can rub against the principle of constitutional supremacy.

State institutions are based on the principle of separation of powers with equal degree.

Even though the GBHN will be considered a translation and will be put under the 1945 Constitution, there is no guarantee that the GBHN will not be in conflict with the 1945 Constitution. If they contradict each other, there is no mechanism to test the GBHN against the 1945 Constitution. Constitutional supremacy also implies that there is no supreme institution or regulation other than the constitution. State institutions are based on the principle of separation of powers with equal degree. The principle of mutual monitoring and balancing applies.

Second, in contrast to the parliamentary system, which adheres to parliamentary supremacy, the presidential system makes the executive directly responsible to the people. The proposal to revive the GBHN stipulated by the MPR means that it has the potential to restore the MPR\'s authority as the highest state institution. The president (and other state institutions) must again implement the GBHN in running the state. The logical consequence of adopting the supremacy of parliament is that the relationship among state institutions is built hierarchically, structurally and in a subordinated way, because each state institution must be accountable to the MPR, including the president\'s accountability for implementing the GBHN.

This is certainly not in accordance with the characteristics of the presidential system. Therefore, the basic question is, what is the source of accountability for implementing the GBHN?

Third, the accountability of the president is partially maintained through mechanisms that may remove the president. In the presidential system, the president can only be dismissed through impeachment for committing treason, accepting bribes, committing serious crimes and other offenses (Article 7a). If the president has to be accountable to the MPR for the implementation of the GBHN, this could cause a shift to a parliamentary pattern in the assessment of policies.

Kompas/Riza Fathoni

.A number of residents participate in the Bhinneka Tunggal Ika (Unity in Diversity) parade from the Arjuna Wijaya horse statue monument on Jalan Medan Merdeka Selatan, Central Jakarta to the Tugu Tani, Menteng monument, on Saturday (19/11/2016). The parade was held to promote the awareness in maintaining Pancasila, the 1945 Constitution, the Republic of Indonesia, and Indonesian diversity

Fourth, another characteristic of the presidential system is the clear separation of powers between the executive and legislative branches of power. That is why they both receive a direct mandate from the people in the form of general elections. If the GBHN is revived, the separation between executive and legislative powers may become blurred. The president would simply carry out the state guidelines that have been formulated by the MPR. The president would not have the opportunity to realize the vision and mission and programs promised during his or her campaign.

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The revival of the GBHN would make direct presidential elections almost meaningless. If the direct election of the president is done by the people but the president\'s vision, mission and programs are determined by another institution, namely the MPR, the people will not have logical and rational parameters to serve as the basis for electing the president.

Implications for the presidential position

It is easy to see that, in the idea of making an amendment that revives the GBHN, it is actually almost impossible to use the language that it would only be a limited amendment to Article 3 of the Constitution. This is because, from the four implications above, we inevitably have to go far beyond Article 3 but can target other articles in the current construction of the Constitution, including articles on direct presidential elections and articles on the accountability of the president and the termination of the president.

What the accountability mechanism is, including what its parameters are, among many other derivative questions, will appear.

If the president has to be accountable for the implementation of the GBHN, the most likely form is to account for it before the MPR as the institution that initiates the GBHN. There is indeed an idea, not separately as a product of the MPR, but in the form of "the directive principle of state policy", that is directly included in the Constitution. This idea is actually "lacking freshness" because by reading the current constitution, there are quite a lot of "directive principle" matters, from the preamble of the Constitution to the articles. Even if it is in the form of a directive principle, there are still issues of accountability. What the accountability mechanism is, including what its parameters are, among many other derivative questions, will appear.

That is what makes it easy to imagine that the proposal to revive the GBHN might target the president and his or her election and term of office, including periodization. When the president\'s accountability regime is returned to the MPR, it is very easy to read the possibility of reviving the presidential election in the MPR, potentially changing the fixed term concept and possibly shifting the periodization of the presidential position because there is a fundamental difference between the president being directly elected by the people through general elections and being elected through the MPR. That is why, as President Jokowi has said that he does not intend to pursue three terms, the issue will not be completely extinguished if it is seen from the perspective of the GBHN amendment issue.

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Even if President Jokowi does not intend to pursue a third term, what if the amendment is pushed and forced by the MPR? What if the President changes his intentions, such as when he changed his intention to strengthen the Corruption Eradication Commission (KPK) and eradicate corruption but instead became the initiator of changes to the KPK Law that weakened the eradication of corruption.

Kompas/Lasti Kurnia

A scene at a hearing presided by Constitutional Court justice Arief Hidayat, settling a judicial review on presidential threshold at the Constitutional Court, Jakarta, Thursday (11/1). The Constitutional Court rejected the judicial review of Article 222 of Law No. 7/2017 on General Election, which regulates the matter of presidential threshold and states that the article is not at odds with the 1945 constitution.

This certainly applies not only to suspicions of President Jokowi but to the future understanding between the president and political parties resulting from amendments to the Constitution, not for the sake of President Jokowi, but for other candidates who feel it will be difficult to become president through direct elections. Therefore, choosing to be elected through the MPR means it only involves political parties in the House and "political maps" in the DPD without the direct involvement of the people – a much simpler process for politicians than direct elections.

Tasks

There are at least two tasks left. The first is determining how to ensure that national development can be carried out in an integrated and directed manner without the need to recreate the GBHN. The second is ensuring that a potential amendment improves the construction of the 1945 Constitution and is not for political desires alone. In the first issue, it is actually possible to aggregate the concept of development without having to go through the GBHN. At the very least, there should be an effort to get serious again about how the vision, mission and programs of the presidential campaign can be translated by the National Development Planning Agency (Bappenas) into the RPJMN.

Of course, this proposal can be implemented well if synchronization is carried out through the amendments to the State Finance Law and the National Development Planning System (SPPN) Law.

Furthermore, it should be compiled into a Government Work Plan (RKP) and become the basis for the formulation of the State Budget (APBN). In addition, institutionally, the formulation of the APBN needs to be carried out jointly by the Finance Ministry and Bappenas, not only formally but also paradigmatically and in substance. This is to ensure that plans that have been approved will receive financing. Of course, this proposal can be implemented well if synchronization is carried out through the amendments to the State Finance Law and the National Development Planning System (SPPN) Law.

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At the same time, the central government should strengthen coordination, supervision and synchronization of activities with regional governments so that they have one voice even though they exist in the nuances of autonomy.

The second task, considering the idea of amending the 1945 Constitution, is to make sure to change the provisions that have real problems in state administration. Strengthening the bicameral system between the House and DPD seems much more important. Likewise, tidying up the overlapping relations between the Supre (MA) and the Constitutional Court (MK) in the examination of statutory regulations and strengthening the protection of citizens\' rights with the construction of constitutional complaints are important. It is also possible to tidy up articles that are up for debate because of their ambiguity, for example Article 7c, which says, "The president cannot suspend and/or dissolve the House of Representatives."

Simply put, political issues must be answered by ensuring that the state is indeed moving legally and constitutionally and not offering an agenda that might mess up the law and constitutionality itself.

Zainal Arifin Mochtar, Chair of the Department of Constitutional Law at the Gajah Mada University School of Law

(This article was translated by Hyginus Hardoyo)