Selasa, 06 Oktober 2015

The fifth amendment of Indonesia’s constitution: Regarding to governance system

BY : Angga Afriansha A.R

Discourse about the fifth amendment of Indonesia constitution has been brought to public. Regardless since July 2007, According to survey from LSI that 73, 4% Indonesian people agreed to change the constitution, but still the government will not respond it until recently. There are several reasons which made the government propose and agree to amend it. First, to balance the power and authority between two state organ, DPR (house of representative) and DPD (house of senate). Second, to establish a new governing system, because under the fourth amendment, there is no political stability between executive and legislative or so-called legislative heavy. Furthermore, under the presidential system and parliamentary system Indonesia still cannot reach the prosperity. From this paradigm, and concerning about the uniqueness of Indonesia this research want to propose the most appropriate system used in Indonesia. The system will be constructed using philosophical approach and comparative approach to compare parliamentary and presidential system. Therefore, the result will be one comprehensive governing system that can use to gain prosperity of Indonesia.

Key Words: Governing system, Presidential System, amendment

After 66 years of Indonesian Independent’s day and establishment of its political system there are two kinds governance system or types of democratic regime that have been implement, it is presidential and parliamentary. From the historical perspective, the presidential system has been using since 1945, despite that in 1949 Indonesia switched to parliamentary system but there is fact that no one can’t argue, which is ‘till now Indonesia still searching for the most appropriate political system. After the fall of Soeharto regime in 1998, the need for amendment also rises and there is fourth amendment of Indonesia’s constitution. Although constitution was amending for the fourth times, still the constitution needed to change because the constitution still consider as a crude constitution, which is has many flaws. As a living and working constitution, Indonesian constititution (UUD 1945) stand as a state fundamental norm, which is derived from the basic ideology of Indonesia.
As we speak about ideology, it comes to term, which means the system of value. Soekarno and other founding parents of Indonesia formulated Pancasila as ideology of Indonesia. It served as a basic norm of Indonesia’s legal system. From this paradigm, the system of governance, democracy and relations between authority, state organs were made by the value of Pancasila.
In 1949, Indonesia use parliamentary system, which decided after the Conference between Indonesia and Dutch (Round Table Conference). As part of the agreement between Dutch-Indonesia, The Kingdom of the Netherlands unconditionally and irrevocably transfers complete sovereignty over Indonesia to the Republic of the United States of Indonesia, and thus recognizes the Republic of the United States of Indonesia as an independent and sovereign Nation. From the day the Round Table Agreement (from August 23 – November 2, 1949) was signed by the delegation between two countries, Indonesia officially became Republic Of The United States Of Indonesia. Constitution of the Republic Of The United States Of Indonesia (Konstitusi RIS) mandated the use of parliamentary system and Indonesia stand as federal country. According to this constitution, the president cannot be bothered or inviolable—on the other hands—the ministers that represent by prime minister responsible for the policies to run the government. The era of United States of Indonesia under the RIS constititution was substituted by 1950 constitution (UUDS 1950), still the democratic system use parliamentary but the country is no longer federal, and it is unitary country. The flaws of parliamentary—although it was said as more stable system—were really exposed in 1949 to 1959. That era stated by Mahfud (2009) as era of liberalism rise the political instability, this conclusion was made because under the era of liberalism (1949 to 1959) averaged cabinet’s age no more than 15 month. Rise and fall of executive was not unusual thing, it was like yearly routine, however still there were several cabinets that could stand for more than 2 years (Mahfud,2009).
Soekarno, as the president of Indonesia on fifth of July 1959 issued the decree of president, which contained an order to reimplement the first constitution (UUD 1945). Therefore, the decree of president marked the changes of era from liberalism to authoritarian regime under the vision of Soekarno that called the era of guided democracy.
Soekarno became an authoritarian ruler in Indonesia with some reason. First, unsatisfied
feeling about the result of Indonesia governing system since 1945. Second, failure for bringing prosperity for the whole of people in Indonesia caused by lack of nationalism, which means democratic liberalism, was not quite fitted to implement in Indonesia. Third, as a correcting condition, Indonesia has to be back to its line and goal, which has been established since the beginning of its independent day. In the era of guided democracy, there were three major power, President, Army, and Indonesia Communist Party (PKI) but the most powerful was President supported by the minority power, legislative, and people’s consultative assembly. Paradigm that Soekarno tried to build was Indonesia need a revolutionary step of its democratic system and Soekarno stand as its leader. In the era of guided democracy there was no certainty of its democratic system, is it presidential or parliamentary? There was no legal explanation, it all caused by authoritarian ruled by Soekarno.
The fall of Soekarno happened in 1966, followed the uprising in 30 September known as September 30th movement. The uprising forced Soekarno gave order to Soeharto took any necessary movement to maintain the unity of Indonesia, and then Soeharto strips Soekarno from its authority. The beginning of new order started from the day that Soeharto ordered by Soekarno with SUPERSEMAR (warrant from Soekarno to Soeharto, signed on 11 March 1966).
In Soeharto era (new order), Pancasila was used as a tool of propaganda, as a political manifest. Different opinion, different perspective from this regime labelled as a criminal, the one who tried to destroy stability. Therefore, under the new order, Pancasila stand as political religion. The new order placed Soeharto in possession of great power thanks to the constitution (UUD 1945 before amendment). Executive power also legislative power placed in one hand. The concepts of governance system in this era known as quasi presidential. It contains the characteristic of presidential system also contain the characteristic of parliamentary system. According to article 4 and 17 of Indonesian constitution before amendment, president hold authority to manage the government thus also formulating the cabinet whose chosen by president, it is one of the characteristic of presidential system, but on the other hand, president gave his responsibility to people’s consultative assembly (MPR).
While being unclearly of its democratic system, Soeharto as a ruler of new order manage to maintain his authority ‘till 32 years thanks to the support of the army. After Soeharto resignation (1998), the corrupt authoritarian regime fall and the will to create government that is more democratic arise. In order to construct democratic system, the people agreed to amend the constitution, partial amendment been done by the people’s consultative assembly and as a result the amendment of constitution have been amend ‘tilll the fourth times. The citizen of Indonesia still didn’t satisfied enough with the result from implementing the constitution, proved by survey from LSI (Indonesia Survey Organization) that 73.4% respondent agreed to amended the constitution in order to balance the power of DPD (house of lords) and DPR (house of representatives). The newest survey done by Kompas showed that Indonesian’s people felt unsatisfied about what government has done (Kompas, October 10, 2011). Constitutional expert seeing this unsatisfied feeling produced by the system that jailed the ruler (executive) in one big authority prison. The presidential system under the fourth amendment constitution made the executive weaker than legislative (Janedri, 2009; Burhanuddin, 2009). For this reason, executive propose the Fifth Amendment.
Academic research for the fifth amendment of Indonesia constitution citate that presidential system combine with multiparty system make democracy become unstable and moreover rips the power of executive. Although the president voted by majority, still legislative under the same voting system manage to affect president and his policies. This situation that represent condition of Indonesia in general term is good enough to show a drama of democracy, but competition between this two wasn’t successful enough giving prosperity for the people (81.8% respondent of Survey from Kompas unsatisfied with the government effort to gain prosperity).

Indonesia and Democracy: After the Fourth Amendment
Santos (1995) explained that the paradigm of modernity based on two pillars, which are
the pillars of regulation, and the pillars of emancipation. Each of them constituted of three principles or logic. The pillars of regulation is constituted by the principle of state, formulated most prominently by Hobbes, the principle of the market, developed by Locke and Adam Smith in particular, and the principle of the community, which presides over Rousseau’s social and political theory. The principle of the state consists in the vertical political obligation between citizens and state. The principle of the market consists in the horizontal self interested or antagonistic political obligation among market partners. The principle of community consists in the horizontal, solidary, political obligation among community member and associations. The pillars of emancipation is constituted by three logics of rationality as identified by Weber; the aesthetic-expressive rationality of art and literature, the cognitive-instrumental rationality of science and technology, the moral practical of ethics and rule of law (Santos, 1995). Derived from the paradigm of modernity, which is one of them based on the pillars of regulation—which contain the principle of state (political obligation between citizens and state)—the basic idea “why we need state or country?” is to ensure the prosperity and safety of its citizens. This basic idea usually found in the country constitution that describe the goal or vision from one country, but it is not always true because some countries did not have written constitution.
For Indonesia, which is use written constitution as its fundamental norm, constitution stand as a norm that must not be violated; it was not because the sanction or punishment, it is because constitution also stands as a state paradigm. There are two main idea that proving Indonesia constitution stand as a state paradigm; first, the constitution consist of fully integrated regulations derived from Pancasila (state ideology); second, the constitution even though been amend for the fourth times still there are few things that can’t be change which are “The Preamble” and article that contain the principle of unity and the assertion of state that is republic of Indonesia. Several reasons that Indonesia using the principle of unity cause by historical similarity of fate between one and other native (tribe).
Recognition of Pluralism has been made since the very first day of Indonesia Independent. As the uniqueness character of Indonesia, which is different from other countryies, recognition of pluralism can be seen in “Bhineka Tunggal Ika” which means “unity in diversity”.
As mentioned before, political obligation between state and country means to ensure prosperity of people, government as state representative responsible for the safety of people. For that task, needs for governance system became clear. However, as Lord Acton said “power tend to corrupt but absolute power corrupt absolutely” so the idea for
distributing or separating power or authority became the main idea of state democratic system. Distribution of power or separation of power make birth of executive, legislative and judicative power. To fill the chair of authority (executive, legislative, and judicative) is required certain method, namely the election. Indonesia with its direct election models use to choose president and vice president, and legislative. As for Indonesia democratic system, which is presidential, combine with multy party system, there are no political stability because of conflict between president and parliament. This condition happened because president did not support by the parliament even though he came from the winning party. The conflict between president and parliament given birth to a condition that known as ‘the twin sun’, with president and parliament has the same legality power (as a result from direct election). Two authority stands together as a rival instead of partner, producing political instability even though economic grow shown a positive result. The political instability became worse as president have to maintain coalition between parties in order to stabilize its government. As the coalition constructed, the non-coalition parties also constructed opposition power. It goes over and over, resulted in chaos government, president kept busy with same problems, not to mention he have a job to bring prosperity
According to data from Indonesia Statistic Centre (Badan Pusat Statistik), economic growth in Indonesia showed a positive result. GDP (Gross National Product) in 2010 increasing 6.1% compare than 2009 (Badan Pusat Statistik, 2011). From the data, we can conclude that the prosperity of Indonesia shown significant growth, prosperous society. However, there are two point that forgotten by the government. First, economic growth did not reach all of the people, still only rich people enjoyed it. Second, economic growth must be seen from the real income of its citizen. Cheap labour, and poverty still stand as the main issue that have to solve by the government, not to mentioning corruption. There still so many homework to do for Indonesia, in order to fix this matter, the government should wake and descent from their tower. Democracy that being used right now, still cannot answer the question and solving the problems from the day that Indonesia claim it is independent.
Although, there are no more suppress comes from government, democracy cannot interpreted as total freedom. It is no longer democracy—after the fourth amendment—it is democrazy, longing for total freedom that leads Indonesia into chaos. Pancasila that stand as a state ideology, as a state philosophy no longer ignored. Lost its identity that is
Indonesia after 1998 reform until now. The form of democracy in Indonesia stands absurd, not an American model, not an Australian model, and not reflects the national identity (derived from Pancasila). Even though we should commit that Indonesia are unique nation. As a unique nation, Indonesia should construct its own governance system or political correct words its democratic system.
Indonesia admitted using a presidential system (after the fourth amendment) which can seen in its constitution, specifically in articles 4-6, 6A, 7A-C, 8-16 which contain characteristic of presidential system, namely:
1. President separated from legislative;
2. The president serves as head of government and head of state;
3. The president can’t suspend or dissolve the house of representative;
4. The president’s relatively fixed term in office;
Presidential system in Indonesia combine with multy party system, it proves not produce a stable government. The result are inadequate, Yudhoyono (the president of Indonesia), cannot move freely, held hostages by political parties. For that reason, the needs for institutional redesign became clear.

Presidential and Parliamentary: The Flaws
There are two experts in presidential and parliamentary system with different point of view; it is Juan Linz and Scott Mainwaring. Linz (1990) concluded that presidential system have several perils namely; president compete with legislature over democratic legitimacy; fixed term created rigid position, no way to break deadlock; interaction between president legislature resulted in zero sum game; president and legislature may become intolerant that created conflict which is always possible and at times may erupt dramatically (Linz, 1990). Different point of view came from Mainwaring, although Mainwaring seem to agreed with Linz arguments about the perils of presidentialism, still he argues that a great deal rests on what kind of parliamentarism and what kind of presidentialism are implemented (Mainwaring and Shugart, 1993).
Furthermore, Linz told in presidentialism the president and assembly has competing claims to legitimacy. Both powers are popularly elected, and the origin and survival of  each is independent from the other. Second, the fixed term of the president’s office introduces rigidity that is less favourable to democracy than the flexibility offered by parliamentary system, where governments are not elected for a fixed term of office but rather depend on the ongoing confidence of the assembly. Third, Linz argues that presidentialism has a winner takes all logic that is unfavourable to democratic stability. In parliamentary system, “power sharing and coalition forming are fairly common, and incumbents are accordingly attentive to the demands and interest of even the smaller parties”. Fourth, Linz(1990) argues that the “style of presidential politics” is less propitious for democracy than the style of parliamentary politics.
The question is, what is the main idea of presidentialism and parliamentary? Presidential, just like parliamentary was meant to established democracy. The main idea of presidentialism is to construct not the elected king, but rather constructing more stable governments. In order to gain this state, president and legislator have to get voter
legitimacy came from people. Instability, and uncertainty deadlock which is often found in presidential system is not a fact of the perils of presidentialism like Linz said. Rather than that, it is nearly an effect of authority egoistic regarding their policies in the name of the people. Since the beginning countries choose their democratic system, there has always been a gap between the ideal form and practical need for the system. Presidentialism ideal form was meant to create one system under the unity circumstances, not diversity. Under one ideology not different ideology, but in the practical form it turns into a total disaster if president act as an elected king. Moral principle of country leaders also considerable as a reason to choose president and legislator. Regarding the fixed term of the president’s office introduces the rigidity, it is not always bad. As we saw it right through the main idea of presidentialism, unlikely the parliamentary, rigidity needed to maintain balances of power in some country. As I see it, rigidity needed to diffuse the political influence. Creating president heavy nor legislative heavy, neither check nor balances mechanism need to include in presidential system. The flaws of presidentialism depends on the characteristic of its government, but not trying to denied the fact that parliamentary system are more democratic than presidentialism, from historical perspective, parliamentary survive long enough than presidential. Concerning winner takes all logics, presidentialism was not meant to be like that, and not all of us should forget that in democratic country, press is one of the four pillars of democracy. People maintaining control from press can be resulted in different logic than winner takes all. It is ideal that the people watch over the government throughout the press. The president, also legislator cannot make unpopular policies under these circumstances. As a pressure from people is more favourable than the house of representative. However, still the most important thing in presidentialism is moral principle.
Parliamentary, even though more democratic than presidentialism also have a flaws. The first flaw is that parliamentary cannot survive in uncertain condition, such as Indonesia in 1949 (transition period). The second flaw is that parliamentary did not fit in heterogenic society. That argument based on the fact that parliamentary produces more unstable state than presidential. The instability state happened because there are no same point of view other than ideology itself resulted in rise and fall of cabinets. Still, as if Mainwaring said, presidential and parliamentary always depends on what kind of parliamentarism and what kind of presidentialism are implemented.

Indonesia Governance System.
The ideal form of governance system always based on the state ideology, as for Indonesia it is Pancasila. The most significant principle is containing in the number fourth principle of Pancasila, it is “democracy led by the wisdoms of deliberations amongst representatives”. Most important thing from that principle is that democracy made from representative point. I will explain latter on. Before, I will explain the philosophy approach of the governance system, in order to explain, I will begin from the question, why we need state or country. Supporting Thomas Hobbes that claim human are no less than a wolf with a mind, the need for power to control the lust of superiority between one and another becoming clear. In order to avoid total war “Bellum Omnium Contra Omness”, state was established. Therefore, the main idea why we need country is to balance the interest between people. In such condition, people need leaders, so their agreed with each other has to choose among themselves a leader. The traditional way to choose a leader is appointing between them, but in modern way, it become an election. Direct election to choose their leader, but because these circumstances often produce totalitarian regime, the people realize that they have to appoint other people to represent them as a balancing power. Like Montesquieu who sought the concept of separation of power between executive, legislative, and judicative, in modern world the separation of power needed to avoid abuses of power. In Indonesia, executive is president, legislative is house of representative, and judicative is supreme of court and constitutional court. The relation between president and legislative all this time based on presidential system. Because of that, Indonesia as we seen was the same as other country that use presidential system. We cannot see the uniqueness of Indonesia democratic system although the country has different culture than other. In Indonesia, also there is customary law as the most original law, with certain models depends on the native. Soekarno, and all founding parents of Indonesia extracting the same ideal value from different customary law. It is Pancasila as the true ideology of Indonesia.
Pancasila reflecting the diversity of Indonesia people, it reflecting that there are different value between one and another; it is seen in the third principle of Pancasila (unity of Indonesia). For the democratic system, it is reflecting from the fourth principle of Pancasila. Interpretation or the art of interpretation something are influencing by someone perspective, rather than experience. In my interpretation, Indonesia from the perspective of Pancasila was meant to be indirect democracy, it is representative by superior organs named People’s Consultative Assembly, like it or not it is the truth. Nevertheless, why Indonesia founding parents formulate that? It is because the diversity. The value of Pancasila is to the faith to human itself. Rather than that, president as a people choice have legitimacy, because the Assembly choose him. It is therefore, the president or I have to say cabinet still can’t be impeach by the Assembly by any reason other than the president committed a crime. It was resulted not a parliamentary or presidential. We must see that as a hybrid between parliamentary and presidential system. This hybrid must derive to implementation fase. The logic that I tried to built is that People’s consultative Assembly deny their own decision if they decided to impeach the president by political means. Placing the president as a pure executive and legislator as pure legislative will be the best decision. The president still have right to determine the policy, and still have prerogative right but in the meantime president have a right to introduce legislation to parliament. It is not an executive heavy, it rather balance government. To control this type of democratic system, there is also need for legal aspect to participate in to watch over the government. It is sustainable that cabinet is pure responsible to the president, and the president (with vice president) responsible to all the Indonesian, represent by People’s Consultative Assembly. As for the uniqueness, local governments should be empowered using the provincial federation concept. Indonesia has to establish the provincial federation, which means, the governor has an authority to control his region and therefore the province must share its revenue to central government. In addition, central government shares the revenue to another province that needs more income. Boosting the prosperity of Indonesia is another matter that must not forget. In order to do that, to achieve total prosperity (justice and civilized country), Indonesia have to construct the economic growth without depends on investment, but not anti-investment. The government should stabilize its government, and then give more secure feeling to citizen. Then the government must rise up local entrepreneurship. Education is important too. It is nearly impossible to create prosperous society without relying on education. Economic growth, prosperity, and good education are the goal that needs to achieve. Other idea that came directly from the Fifth Amendment concepts has the same concepts as the fourth amendment that is direct democracy. The president chosen directly by the people, and in this direct election, constitution recognize individual candidates as president candidates. Presidential system in the Fifth Amendment manuscript put the president with the same authority, with same legitimacy. As if not learn from experience, the presidential system such as this will produces same condition like today onward except Indonesia change its democratic system.

The presidential system, also parliamentary system although with its own flaws or perils will produce good system if this two system collaborate with each other under the ideology of Pancasila and used in Indonesia. The hybrid of presidentialism and parliamentarism will produce pure executive and without fail, there have to be judicative authority to control it. Furthermore, modifying local government will be the best move to maintain and achieving prosperity. The modification of local government will be constructed into provincial federation. The goal of this governance system is to produce economic growth, prosperity, and good education system.

Mahfud M.M.D. 2009. Politik Hukum di Indonesia, Rajawali Pers, Jakarta, Indonesia.
Janedri M.G. 2009. Mempertegas Sistem Presidensian. Harian Seputar Indonesia, 14 Juli 2009.
Burhanuddin M. 2009. Sistem Presidensial Setengah Hati.
Santos B. D. S. 1995. Toward A New Common Sense : Law, Science And Politics In The Paradigmatic Transition, Routledge, New York, USA.
Linz J. 1990. The Perils Of Presidentialism.
Mainwaring S. and Shugart M. 1993. Juan Linz, Presidentialism And Democracy : A Critical Appraisal.
Badan Pusat Statistik. 2011. Berita Resmi Statistik No.12/02/Th.XIV, 7 Februari 2011.
Harian Kompas (Kompas Daily News). Jajak Pendapat Kompas : Tersandera Sikap Politikus-Birokrat. October 10, 2011.

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