Nudging legislative constraints in Constitution amendment

The Jakarta Post, October 23, 2019

Researcher at the department of politics and social change, Centre for Strategic and International Studies.

In heated debates on the already sinking quality of democracy in Indonesia, the issue of legislative power should be amplified as the House of Representatives essentially has more than enough clout to roll back the current political system.

We were all astounded when a bill to revise the Corruption Eradication Commission (KPK) Law was passed. Similarly, the public was shocked when a number of controversial bills were about to be passed, though delayed. But what was not realized all around was the fact that all the bills had been approved in their entirety by virtually all political parties, without any meaningful debate or contention among themselves.

This perfect concurrence reflects that internal accountability within the House hardly exists. It has been arduous to make politicians accountable during “normal” times. Now without dissenting views over major issues, decent legal or policy output seems to be more difficult to acquire.

The timing of this concurrence could not be any better. The election is over and seats have been proportionally given to political parties according to their vote shares. The much-awaited “reconciliation” between the two opposing camps in the presidential race has also been carried out; thus, there might be no strong reason to listen to public concerns this time around.

On the so-called reconciliation, one would remember the urge for having a compromise between President Joko “Jokowi” Widodo and his then-rival Prabowo Subianto, to subside potential tensions at the grass roots, given that the election was over and the Constitutional Court had upheld Jokowi’s victory. Nonetheless, in hindsight we now understand the true meaning of this reconciliation — to eliminate the opposition power and rule out any disagreements among political elites.

Today the People’s Consultative Assembly (MPR) has clearly indicated its will to amend our Constitution. Bambang Soesatyo, its speaker, said it would revive the State Policy Guidelines (GBHN) for the upcoming administration. If this comes to materialize, Indonesia’s political system will undergo an abrupt change.

The revival of the GBHN will put the president under the MPR. It will likely eliminate our direct presidential election, which will then be replaced by an indirect election by the MPR. If that happens, the president and his Cabinet will be accountable to the House.

This change will also obscure the fact that Indonesia adheres to the presidential system. Under the presidential system, there is no such thing as a supreme body given that both the president and legislature are equally powerful and cannot topple each other. Unlike the parliamentary system, one of the main peculiarities of the presidential system is the separation of power between executive and legislative branches. The two must be independently split as they both earn different legitimacies through different elections.

If these two principles, the absence of a supreme body and the separation of power, are violated, then our presidential system no longer exists.

The problem is that our 2019 – 2024 legislature wields more power to thrust this constitutional amendment forward. All key prerequisites to amend the 1945 Constitution are under the control of the ruling political coalition.

Article 37 of the Constitution states that the proposed amendment should be submitted by at least one-third of assembly members – comprising 575 House members and 136 members of the Regional Representatives Council (DPD). Now, if we count the total seats of the ruling Indonesian Democratic Party of Struggle (PDI-P) and the Golkar Party, the two drivers of this plan, we already get 30 percent of shares. This is not to mention other parties such as the NasDem Party and the United Development Party (PPP), which seem to concur with this amendment.

Additionally, with the incoming support of the Gerindra Party and Prabowo, who has openly said that he is in favor of this change, the road to the fifth amendment is more likely to pave its own way.

Article 37 also explains the minimum requirement of approval from 50 percent, plus one assembly members to pass the amendment. Given current seat shares among parties in the House and the dynamics of the political coalition, clearly two or three main political parties only – PDI-P, Golkar and Gerindra – will be veto players that define the map of the game. The DPD’s power will be irrelevant. And other smaller political parties, even if they oppose this plan, will understand their limits.

In responding to this plan, President Jokowi has firmly said he rejected the amendment. Realizing the consequences of reinstating the GBHN, Jokowi argued that the current political system should be preserved. He himself was the product of direct elections, starting his career as mayor from the mid-size city of Surakarta in Central Java, to Jakarta governor, before being elected president because of his popularity.

But Jokowi is not the leader of the PDI-P, his own party, and perhaps will lose his grip on his political coalition in the coming months. There have been instances in which the President has been on the opposing side of the PDI-P. A case in point was the battle over the new KPK Law, wherein the President’s gesture to issue a regulation in lieu of law (Perppu) has met strong resistance from his party.

Jokowi can compensate this shortcoming by shifting his focus on the public. He should be listening to people again and addressing much of their concerns to regain trust – something that seems to be declining in his presidency.

Challenges of Decentralization

The Jakarta Post, October 7, 2019.

This year marks the twenty years of formal introduction of decentralization program. Despite its real implementation started in early 2001, but legally the idea of having a much more decentralized authority began two years earlier with the passing of Law No. 22/1999 on Local Government and Law No. 25/1999 on Fiscal Balance between Central and Local Government.

Just like in many other countries, decentralization was initially designed to bring government closer to the people, given Indonesia has been ruled by autocracy with strong centralization stance for over three decades. It was also introduced because of the sizable and diverse nature of the country, with its sprawling archipelago and the presence of more than 500 districts and municipalities – many of which are distinct in terms of language, ethnicity, and customs.

For that reasons, the urge of having more de-concentrated power seems inevitable once Indonesia set to democratize itself in 1998. The so-called ‘Big Bang’ decentralization, the term coined by the World Bank economists, essentially denotes to a radical shift that Indonesia experienced from one of the most centralized states to a very much-dispersed regional autonomy.

To be sure, the implementation of this system has been incremental. At the onset of its execution, the focus seems to be less on politics than economic concerns. The Law No. 22/1999 lays out, for instance, the need to have a greater fiscal transfer from central to regional government. This led to the higher share of central government spending to regional government to nearly double in 2000 – 2001.

Relatedly, the Law No. 25/1999 explains the entitlement of local government to earn the so-called balancing fund (dana perimbangan) to boost local development. In 2002, around 90 percent of regional revenues came from this balancing fund, which included the general allocation grant (DAU), special allocation grant (DAK), and shared taxes. This reflects a great reliance in term of financing from regional government to central government.

However, it was not until recently this fiscal transfer has become one impediment in our political system. Indonesia’s fiscal system is quite unique in a sense that it bypasses the role of provincial government in financing its district-level governments. In many occasions, this makes district heads do not feel oblige to work together with governor in a respected province.

This has been worsened with the fact that there is no hierarchical relation between provincial and district or municipality-level governments. The provincial government only plays a “coordinating role,” meaning that it cannot impose any measures for non-compliance. Thus one can imagine when governor and district heads in one province came from competing political parties; making a good cooperation can be a daunting task.

Despite the Law on Local Government clearly states that every district is an independent entity with its own regional autonomy, recent moves from central government has made decentralization to gain a new relevance.

The idea to amend the 1945 Constitution is a case in point. Despite many public contentions, PDIP, the ruling party of President Joko Widodo, strongly supports this amendment. The idea basically aims to attain two things: To revive the New Order-concept of the Broad Guidelines of State Policy (GBHN) and to reinforce the power of People’s Consultative Assembly (MPR).

While we are yet to understand exactly the reasons of this move, but it is safe to say that the plan is a regression for Indonesia’s democracy. We knew from the history how GBHN was being devised; it had never been designed nor discussed in consultancy with regional government, let alone people on the ground. GBHN had always been the top-down product of MPR; it is exclusively devised and imposed by elites.

GBHN could only work in the context of authoritarian in which the same regime endures for a long time, while with democracy, the new elected government can easily annul any programs from its predecessors.

Thanks to decentralization, Indonesia’s now has the Musrenbang, an annual process of planning and budgeting of policies at local level. The Musrenbang began down from village level, and then advances to a higher level such as districts and provinces. In this process, people meet together to discuss issues facing their own communities. They can participate in formulating policies which then will be formally approved by the Bappeda (the local government planning agency).

With all its deficiencies, the Musrenbang is much more representative and nicely fits with decentralization than GBHN, at least in theory.

The idea to strengthen the MPR is also problematic. In the past, the MPR was the supreme body above all institutions, including the president, whereas our system now only acknowledges the check and balances among equally strong institutions.

To some extent, we can understand the dilemma faced by central government in dealing with independent regional governments. The central government wants its development programs to be effectively executed, but the setting of political institutions at times thwarts this purpose.

The contention seems to be always about how to strike a balance between our unitary state and regional autonomy, or about the degree of effectiveness and representativeness. However, it seems that in recent years Jokowi’s administration has accentuated more the unitary elements, instead of embracing more pluralistic tone.

Noory Okthariza is a researcher at the Department of Politics and Social Change, CSIS