BY :
Angga Afriansha A.R
Abstract.
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
Introduction
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.
Conclusions
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.
References
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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. http://www1.american.edu/ia/cdem/pdfs/linz_perils_presidencialism.pdf
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