The presidency is dead: Long live the super-parliament

{As President Wahid (Gus Dur) was being dismissed by the ational Assemby and
replaced by Mrs Megawati, I came to realise that in 4 years Indonesia gone through 4
presidents. The myth that the original 1945 Constitution provided for a presidential
system of government was in my view laid bare as incorrect. This Constitution was in
fact “super-parliamentary”, as both the head of state and head of government were
elected and dismissed at the same time by a legislative body. I wrote this article a
week after he was dismissed. The language is rather blunt suggesting that passions
were still running high even inside me!! I believe I wrote this as a possible Op Ed for
the The Age in Australia – but it was never published}
Imagine an Opposition that could pass laws the Government did not support, and then
sack the Prime Minister for not implementing them as they wished. Imagine if the
Opposition could tell the PM who should be in the Cabinet. Imagine a PM who could
not call an early election, but could still be sacked by the parliament for any reason.
Imagine the Opposition could change the Constitution despite the views of others
including the Government and had sole power to interpret it. Imagine a parliament in
which not one member was elected directly by the public, but where nearly 1/3 of
members were concurrent members of their Party Central Executives. Imagine a
Prime Minister coming from a party with 10% of seats in Parliament.
Finally imagine that most of the people in this country actually believed this Prime
Minister enjoyed the powers of a dictator. Surely not on this planet!
Well that was the fate of Indonesia's former “Prime Minister”, namely President
Wahid.
Now imagine all of these same conditions except that the new Prime Minister's party
has 33% of seats. This is the fate awaiting Indonesia's new “Prime Minister”, namely
President Megawati.
Some quick lessons
One of the most dramatic lessons of the past month was to confirm that Indonesia's
party bosses run the country. The scramble for the Vice-presidency was a field of 5
candidates. In the first round of voting the weakest candidate came from a caucus of
non-party social groups (allocated about 10% of seats in Indonesia's superparliament,
the National Assembly). The second and third weakest candidates were
populist generals. That even reformist generals could be so easily disposed of was
another demonstration of the power of the civilian party bosses.
The winner and runner up were the party bosses of the third and second largest parties
in the parliament. The boss of the largest party is President Megawati. This whole
process was overseen by the man who leads the 5th biggest party. Meanwhile the 4th
largest party (President Wahid's) boycotted the proceedings.

One colourful event revealed the yawning gap between the positions of the MPs and
the public. One of Jakarta's TV stations ran a phone poll at the same time as the MPs
were voting for the Vice-president. The MPs vote one at a time and in secret.
The TV poll indicated about 90% supported one of the candidates (one of the populist
generals), with least support for the leader of Golkar, former President Soeharto's old
political machine.
Yet when the votes of the people's representatives were counted, the “people's
choice” came in a poor third!
In a second poll during the final run off between the 2 party leaders, more people rang
in to say they would rather abstain than vote for the Golkar candidate, leaving him
third in a 2 horse race!
In the end the winner was the man whose party passionately opposed Megawati for
Vice President in 1999 arguing that religion precludes women from being leaders. He
is now delighted to be her deputy. Ironically his election this time was due to support
from Megawati's party!
In the opaque and hyodroponic bubble that is Indonesia's elitist democracy such
bizarre switches in position barely rate a mention in any paper or chat show. It
reflects sadly on the profound weakness of philosophy and ideology as tools defining
and guiding policy. This gap is filled by an extremely personalised political system.
What is happening?
Indonesians have been brought up to believe that their country has a presidential
system in which the President is all powerful. Under the latter years of Sukarno and
during the Soeharto period this was clearly the case. There was no way, without
major social convulsion and physical threats against them, that the pliant
parliamentarians would dare remove the President. It is against this history that we
can understand why Indonesians assume the President is still all powerful.
Yet over the past three years the traditionally pliant super-parliament (the National
Assembly) has affirmed President Soeharto's resignation (after unanimously reelecting
him 3 months earlier), elected as Vice-President then 18 months later rejected
President Habibie's admission to the Presidential elections in 1999, elected and then
20 months later sacked President Wahid and has now happily supported the
appointment of Megawati as President.
What changed? The most profound change to affect the balance of power within
Indonesia over the past few years was the democratic elections of 1999. Under
President Soeharto all candidates from all parties wanting to run for parliament were
pre-screened by the Government. This essentially guaranteed the removal of possibly
troublesome people before they even got to the voters. Elections were intended to reaffirm
that President Soeharto's “New Order” system should continue. Even if some
MPs did turn out to be critics, they could be sacked and replaced mid-term. This
guaranteed President Soeharto's regular-as-clock-work re-election every 5 years.

The 1999 elections took that power from the President. However this power did not
quite reach the people. It actually went to the party bosses. They determine who
gains a seat based on the proportion of votes their party gets in each province. The
voters don't vote for people. They vote for party logos. The faces behind these logos
are filled essentially by the party bosses.
With this change the potency of the presidency was lost.
To make matters worse this election system, like the Australian Senate system,
virtually guarantees that no party can actually win the election. As a result horse
trading to build a government actually occurs after the election. In Australian terms
this means you could vote for the ALP only to find they support the Democrats in
Parliament to back the National Party for Prime Minister. Given Indonesia's rich
social diversity this guarantee of no election winner is even greater than ours in the
Australian Senate.
These changes have left the Indonesian presidency a mere political shell of what it
was when President Soeharto could sensor who would be allowed to get elected
through his well arranged elections.
The key problem here is that the President has lots of responsibility but diminishing
authority. Meanwhile the parliament enjoys little responsibility but ultimate
authority. The result of this situation is that the country is almost ungovernable
because the Government is so weak, while members of parliament can enjoy being
rambunctious and criticise the ineffectiveness of the Government, at no political cost
to themselves.
This situation is fundamentally unsustainable. It crys out for a sober re-think about
the constitutional foundations of the country. Is anyone in Indonesia listening? Yes
but unfortunately it is the super-parliament that has the sole right to make these
changes. The question here is why should they want to change the current cosy
arrangement where they enjoy lots of power but minimal responsibility?
For those who believe President Megawati can fix the myriad of problems affecting
the country let them not forget that she is only a weak “Prime Minister”. And like
President Wahid, her party does not enjoy majority support in the parliament either.
One international magazine recently concluded, not surprisingly, that Indonesia was
the worst place in the world to be President. The magazine also discovered that,
unlike their American counterparts, hardly any Indonesian children aspired to be
President. They seem to understand that having lots of responsibility but little power
is a mug's game. The wisdom of youth!

The gloves are off

What does this mean for the current stand–off?
President Wahid is desperately seeking to re–assert the power of the presidency. He
recognises that he does not “have the numbers” in the DPR to prevent it from asking
the MPR to convene a Special Session. In confronting this situation he believes he
can “up the ante”. This means raising the stakes for the parliament should it dare to
push further for his removal. The weapon used is to threaten to declare a national
state of emergency, which he believes would allow him to suspend the Parliament,
thereby thwarting the Parliament from asking the MPR for a Special Session. This
might be considered the “stick” to his approach.
As a “carrot” the President on 25 May handed unilaterally all formal duties of
President, except the title, to the Vice–president. A short deadline was offered to the
Vice–president to accept this offer. Her response was to study the “legality” of the
proposal.
Major party groupings of the Parliament have met and decided not to support this
proposal, leaving it unlikely to proceed much further.
The Vice–president will not in the end support the President's offer of surrendering
authority, and would certainly not support a declaration of a state of emergency. She
would see both as short term political deals of no long term durability and of
questionable legality and legitimacy.

Possible scenarios
The following in descending order of probability represent an outline of a number of
possible scenarios covering the next 3 months.
Scenario 1
At this point the ball will return to the President. He has 2 broad choices. The first
choice could be to follow through with his proposal to declare a state of national
emergency. While President Sukarno may have been able to dismiss the Constituent
Assembly under the 1950 Constitution there is a question as to whether President
Wahid can suspend the Parliament under the 1945 Constitution. More importantly
can he suspend the National Assembly? This would seem extremely unlikely.
The response, even should the DPR be prepared to concede the President's authority
on this matter, would be to respond by calling for a Special Session of the MPR at
which time they would be expected to declare the declaration of emergency law as
invalid and that the President Wahid had exceeded his authority and has to be
replaced.

Once the parliament has called for a Special Session, his supporters are likely to
become more desperate. To date their responses have tended to be more theatrical
than actual (certainly in Jakarta). Groups expressing a willingness to die for the
President have been formed, their leaders obtaining ample free media attention, only
to dissipate once their leaders suggest their actions are unnecessary. In East Java they
have indeed taken action against three groups seen as opposed to the President,
namely the Golkar Party, PAN (the party of Amien Rais) and Muhammadiyah (the
urban middle class Islamic organisation associated with Amien Rais. This sort of
action may be expected to continue. While Megawati's party is far larger than either
of these parties in East Java, perceptions that Megawati has moved against the
President could stimulate anti–PDI–P action in East Java (and perhaps along the north
coast of Central Java).
Meanwhile in Sumatra and Sulawesi we may expect to see a sustained campaign
rejecting President Wahid and potentially some action against the activities of his
party, PKB, in these areas.
Throughout this period, there will be appeals for reconciliation. These calls will be
more shrill given that the Rupiah can be expected to fall back towards Rp 15,000 to
the dollar. Even so there may be some currency roller–coastering, albeit on a
downward trend, as people try to second guess the next step along this path.
Under this scenario, the Cabinet is most likely to fracture as most Cabinet members
are not supportive of the state of emergency route. If there are not attempts to resign
very soon after the announcement these are likely to be more intense following the
conclusion of the G15 meeting of major developing countries leaders.
The National Assembly will deem the President unfit for the job. He will be replaced
by Megawati amid loud and growing calls for a radical overhaul even rewrite of the
Constitution focused on re–affirming some form of Presidential System. Megawati is
ironically (given that she would be a key beneficiary of such changes) most likely to
express disapproval for such action, preferring to maintain a cautious approach to
constitutional change.
Scenario 2
The President's second choice could be, on the basis of taking advice from assorted
sources, to indicate that he had no intention of declaring a state of emergency. In
essence such consultations would represent something of a face saving measure on the
part of the President. This would cool the temperature for a couple of days, at best,
until the meeting of the DPR on 30 May to follow up the 2nd Memo. At this meeting
it is most unlikely that the President will succeed in bluffing DPR members not to
move the tortuously slow process of calling for a Special Session of the MPR
forward.
The meeting of the DPR on 30 May is most likely to reach the view that the President
has inadequately responded to the 2nd Memorandum. Speeches by Factions will focus
on administrative paralysis and a perceived willingness of the President to try and
venture beyond constitutional norms.

It is likely that a decision to call upon the MPR to hold a Special Session in order to
hold the President to account will be made. This may be agreed on the same day or a
day later as a separate vote framing such a call would need to be developed. Traffic
can be expected to be very light on Wednesday 30 May as people shay away from
public places.
The process of moving towards the replacement of the President has now progressed
too far, and the level of trust is too low, for any form of last minute compromise to
take hold that would see him remain in the job. The DPR will endorse a call for a
Special Session of the MPR to take place as soon as possible.
Speaker of the MPR, Amien Rais will waste no time in setting in place the necessary
conditions to conduct this Session. The President will continue to threaten all manner
of consequences should a Special Session be conducted, while the Vice–president will
contend that all due constitutional processes must be followed. She is most unlikely
to say anything else.
The position of the Armed Forces is likely to be one of “allowing the constitutional
processes to take place”, that is a Special Session in which the President is replaced.
The political stress levels will remain high throughout this period and will begin to
ease only once there has been a regime change. The potential for a break down in
crowd management or inter–mob conflict can not be discounted, but to date all sides
including the Police and Armed Forces have been most effective in preventing such a
problem in Jakarta.
Scenario 3
This scenario is the same as Scenario 2 except that the President does not confront a
Special Session, but rather does resign. The Vice–president, now President, or more
likely her supporters will question the need for the Special Session given the changed
circumstances.
There is a possibility that part of the arrangements here will include a strong
commitment to substantive constitutional reform, including the institutionalisation of
a Presidential system, including through agreement to constitutional amendments
favouring the public elections of future presidents.
The following seeks to identify basic issues of principle and interest on the part of key
players at present.

President Wahid
His most basic interest appears to be preserve the integrity of the presidency within
the constitutional context (assumption) of Indonesia operating under a Presidential
system of Government. This system is believed to be a situation in which the
President is not accountable to the Parliament of the day. He believes:
• the whole “memo” process is illegitimate and that the Parliament is clearly
exceeding its authority in seeking his dismissal and this was proven when he
asked the investigating team several months ago whether they were undertaking a
political or legal process. The ambiguity of the answers confirmed his suspicions
that it was a political not legal exercise;
• that having been elected President in October 1999, he should be able to serve his
5 years;
• his election was not just a matter of political scheming. Rather it reflected the
reality that he was the national figure most able to unite the country's more
Islamist and secular communities;
• he owes the Vice–president no “easy ride to the top”, and that he should not resign
from the position of President.
For some of his NU supporters there is also a sense that after having been seen as the
nation's hillbillies for decades and having played “bridesmaid” to generations of
former national leaders, it was now their “turn” to occupy senior positions in the
nation.
Vice–president Megawati
She believes she should have been President in October having “won” the elections.
In part this reflects a failure on the part of her party to recognise that a majority is not
33%.
Her preferred position would be one where President Wahid resigned, while she
automatically filled the position.
She no longer trusts the President to follow through on promises of power sharing.
She also considers such “deals” as constitutionally and legally questionable.
She believes that such “deals” are likely to represent an entrapment.
She would prefer to become President automatically on the resignation of the current
President.
Even so she may be willing to accept a Special Session of the MPR to confirm her in
this position of President, but would be apprehensive about the prospects for a sudden
“surprise” in that Session. She would be uninterested in having a Vice–president,
especially from parties such as PPP or Golkar.
She has expressed concern about the need for the President to be held accountable
annually interpreting this as a mechanism to undermine the President's contract of
work.
She would also be uncomfortable about the growing debate about the need for a “non–
Javanese” vice–presidential partner, considering as she does that such considerations
are inappropriate and socio–politically and culturally divisive.
If pushed, she may be willing to accept a “neutral” figure as Vice–president; someone
unlikely to represent a serious threat to the president, should the whole process of “impeachment” begin again this time against her. This could include people such as
the Sultan of Yogyakarta (who is currently disinterested) or even some former
technocrat minister.

Amien Rais
His prime concern is to remove President Wahid, whom he believes has not shown
sufficient support to the political interests of his political group.
He also believes that the President's administrative style is self–destructive and that
there is no value in supporting him.
While not a natural (or long term) supporter of the Vice–president, he realises there is
no other choice at present.
Personally he has never recovered from what he perceived to be a poor showing in the
1999 elections. Recent developments within his party suggest that without major
changes and initiatives, his and his party's political prospects are not good.
Given his very poor prospects of achieving the presidency in the foreseeable future,
he has every reason to be supportive of enhanced power to the legislature, preferably
at the expense of the presidency.
He would prefer a non–Golkar Vice–president and in this regard sees Hamzah Has (of
the PPP) as the best option.
Akbar Tandjung
He has also determined that there is no future for the current President, and believes
opportunities may open for his group with a change.
He would see some, although limited, opportunity to reach the vice–presidency under
a Megawati presidency. But he would see that now is not the time to try. He may be
willing therefore to support Megawati in keeping vice–presidency vacant for the
present time.
He is looking to the post–2004 period with growing confidence (well founded) that his
party stands a good chance of re–emerging even as a larger party than PDI–P. In this
regard his strategy is to play a low profile, non–combative, approach to playing
politics. This is actually his natural style, so should not be difficult for him to sustain.
He sees his party as a natural “moderate” party; one that is well placed to fashion the
formation of majority coalitions. As a result he would consider the steady shift
towards a parliamentary style of government to be of value.
Armed Forces leaders
The leadership believes that President Wahid no longer enjoys the confidence of the
House, the Assembly and probably not with the public. They believe therefore that
his leadership is unsustainable.

While most members of the military Faction in the MPR supported him in October
1999, they would now believe that the violent objection by Islamists to a Megawati
presidency has now dissipated to the point where her rise would not be politically
problematic.
The leadership is concerned about the President's erratic style and willingness to
intervene in the ”internal affairs” of the military.
They are also concerned that the President may be willing to mobilise military support
in his partisan battles with his parliamentary opponents. In this they worry that they
would fighting for the losing team.
They are unsupportive of proposals to declare a state of emergency, believing it only
likely to add to the political conflict.
Background
Beneath the confusion surrounding the assorted threats, counter–threats, huffing,
puffing and bluffing of the political elite, there are fundamental issues of the state that
can be identified.
Indonesia's journey through uncharted constitutional waters is becoming rougher.
The old assumptions that the President was untouchable during his/her tenure is being
severely tested. Since the whole “memo” process began at the beginning of 2001, it is
clear that the President no longer enjoys the support of the Parliament (DPR), and that
a clear majority of members would like him replaced.
However 2 key questions remain unresolved. The first is “so what?” Under this
Constitution the President is not supposed to be accountable to the DPR. Hence the
President's question to the parliamentary committee of inquiry into certain financial
transactions “is this a political or legal process” represents the defining issue of
principle in the whole saga.1
The most basic issue is about the actual constitutional structures of the country as
opposed to perceptions of what people believe them to be, versus (to an extent) what
people would like them to be.
Basic structures
Indonesia's Constitution actually provides for an institution above all others, namely
the National Assembly (MPR). This institution elects and removes the President,
1 In many respects the distinctly Parliamentary nature of the 1945 Constitution was revealed at this
point in history. DPR members, in fact, represented the majority of the MPR and the residual
components of the MPR (Regional Representatives and Social Groups) were an impotent political force
– unable to mobilise against the DPR even had they wished to. Despite pleas that the President was not
accountable to the DPR, the fact is the President always was accountable to the DPR as DPR members
have always been part of the MPR – which was never an “electoral college” of a kind familiar to the
United States. What was revealed although poorly recognised was that the Original 1945 Constitution,
far from being a Presidential Constitution, was in fact a more radically Parliamentary Constitution
than in most countries that use a Parliamentary System.

amends and even interprets the Constitution. This institution stands above the
President. The existence of this unchallengeable institution of the nation means that
there can be no “checks and balances” under this system.
The parliament (DPR) is, according to the Constitution, equal in power to the
Presidency. This means that the Parliament can not dismiss the President, while the
President can not dismiss the Parliament.
Like the President of the USA, the Philippines or Mexico, Indonesia's President is
both Head of State and Head of Government. However unlike these people,
Indonesia's President is not elected by the public. He is appointed (and as
importantly dismissed) by the MPR.
Old assumptions
One of the most basic assumptions made by Indonesians regarding their Constitution
over the years has been that it is “executive heavy”, meaning provides for
extraordinary powers of the President of the day. With the experiences of the late
Sukarno years (when this Constitution was in place) and Soeharto years this is not
surprising. One too rarely considered question in Indonesia is whether the
extraordinary power exercised by these 2 presidents was due to the Constitution or
their personal power and more importantly the circumstances of their coming to
power.
Basic structural inconsistencies
The problem is what is this MPR? 72% of the current MPR is the DPR while a
further 18% are regional appointees who are attached to the factions of the DPR. The
final 10% are social group representatives who come from all manner and interest in
the community. So extensive in fact that they can not constitute an effective political
force. This means that in reality about 90% of the MPR are factions of the DPR plus
their regional counterparts. As a result of this, it is no great political leap of faith to
contend that the DPR de facto stands above the presidency.
Recent changes to the Constitution initiated by the MPR actually reduce further the
powers of the President. The President no longer has the power to veto legislation
passed by the Parliament. The President can no longer control the initiation of
legislation (although the power of initiation always existed for the DPR at least in
principle). Added to these changes is the fact that President remains accountable to
the MPR (which is dominated by the DPR).
This means it is possible for the Parliament to pass a law with which the President
(Government) disagrees, yet has to implement. Then the President can be held to
account for its implementation by the DPR dominated MPR.
The Parliament has also been given the power of interpolation, a power last enjoyed
during the 1950s when Indonesia operated under a standard Parliamentary
Constitution. This even provides a capacity for the Parliament to seek to intervene in
matters relating to Cabinet personnel.

Identifying the silver lining
The most important and positive sign to arise from this process would be an early
focus on substantive constitutional change. This could take a number of possible
forms, but should incorporate mechanisms for affirming the capacity of the
government to function. This could take a number of forms.
One quite radical approach would mean formally separating the position of Head of
Government from Head of State. This would entail establishing some form of prime
ministerial post. The Head of State (President) position would be a largely symbolic
and essentially non–political role. The Head of Government role would be one in
which the incumbent would formally rely upon the Parliament for legitimacy. This
would create de jure a Parliamentary System of Government. The rules of the game
would be easily understood – sustain the confidence of the House or lose the job. At
present the political reality of the need for Parliamentary support is confused by the
myth of presidential equality to the Parliament.
At the other extreme, and more likely, would be retaining the positions of Head of
State and Head of Government with the same person. To ensure political security and
a source of legitimacy independent of the legislature, this President would need to be
elected by the public. This would create de jure a Presidential System of
Government. There should be considerable expectations that leaders would be able to
agree on 2 factors likely to strengthen the legitimacy of the winner. The first would
be a majority victory (a need for the winner to demonstrate support from, or
acceptability to, a majority of voters) and the need for the President and Vicepresident
to be elected as a team.
Between these two position may be found a couple of alternatives, including one
system which in some ways bridges the divide between the current expectations and
realities. This would be a system in which the President is elected by the public and
would retain certain key functions, such as appointments of senior officials as well as
in matters such as Defence and Foreign Affairs. Meanwhile more regular matters of
policy and administration would be executed by a Government formed on the basis of
majority support within the Parliament. This system would permit Indonesia to retain
a substantive Head of State as an active figure within the political process, yet
permitting the Parliament as the forum representing Indonesia's plural society to be
actively engaged in policy formulation and implementation.
Other aspects of constitutional change which should be greeted positively would
include:
• a separate and effective regions house, with members elected directly by the
public in each province – with equal representation form each province. The
National Assembly has more or less agreed on this body. A body such as this
would represent part of an answer to the historic struggle for providing some
guarantee of effective “voice” by the regions in the politics of Jakarta. The main
outstanding issue is whether the regions house will be a mere house of review or
whether it would have powers to force amendments to drafts from the DPR;
• the reconstitution of the National Assembly as an institution acting essentially as a
joint session of the 2 houses, for example meeting when the 2 houses have failed to reach agreement on some draft law. As it would no longer elect the President,
it would be more difficult for it to remove the President, especially if the President
was elected by the public. At this stage there are no clear moves to redefine the
Assembly in such a way;
• the establishment of some form of constitutional and legal interpretation. The
National Assembly is currently considering establishing a Constitutional Court
within the Constitution. This Court could conceivably provide such a mechanism.
It could act as a break on the potential for either the Executive or the Legislature
to seek to extend its power beyond the Constitution and act as something of a
referee to the regular and legitimate tussles which will occur from time to time.