Democracy and Democratic System under the UUD NRI 1945

Herlambang P. Wiratraman Dept. of Constitutional Law Airlangga University

2020

Aims

• To describe democracy, democratisation and undemocratic system in constitutional law studies

• To be able in identifying the constitutional development for strengthening democracy in Indonesia

• To be able in analysing constitutional democracy

Authoritarianism

Dan Slater, Ordering power: Contentious politics and authoritarian Leviathans in Southeast Asia (CUP 2010)

YLBHI Monitoring Report: Free Expression Situation and Freedom to Opinion in Indonesia 2019: 6.128 victims from January-October 2019. 51 people are killed, among others, 324 are children.

https://ylbhi.or.id/informasi/siaran-pers/laporan-pemantauan-ylbhi-dan-16-lbh-indonesia-kondisi-hak-berekspresi-dan-menyampaikan-pendapat-di-indonesia-2019/

2019

The Coordinating Minister for Political, Legal and Security Decree No. 38 of 2019 concerning the Legal Assistance Team

- allows the government to oversee the speeches, actions and thoughts of public figures who are considered to violate the law. Aimed at balancing freedom of opinion and the enforcement of the constitution

… contrary to the principles of the rule of law, unconstitutional, threatening free expression, democracy and potentially violating

human rights and fundamental freedoms.

Democracy v. Autocracy

Political Context of Constitutional Law Reform

• Economic/financial crisis in Asia, including in Indonesia, 1997-1998

• Student movement and its occupation in house of representative

• The demise of authoritarian regime of Soeharto • Popular democracy and its movement, crisis of

developmentalism

People Sovereign

and Rule of Law

Article 1 of the Indonesian Constitution: (2) Sovereignty is in the hands of the people and is implemented according to this Constitution. (3) The State of Indonesia shall be a state based on the rule of law.

Presidential Power is Limited

Article 6A (1) The President and Vice-President shall be elected as a single ticket directly by the people.

Article 7 The President and Vice President shall hold office for a term of five years and may subsequently be re-elected to the same office for one further term only.

Article 7A The President and/or the Vice-President may be dismissed from his/her position during his/her term of office by the MPR on the proposal of the House of Representatives (DPR), both if it is proven that he/she has violated the law through an act of treason, corruption, bribery, or other act of a grave criminal nature, or through moral turpitude, and/or that the President and/or Vice-President no longer meets the qualifications to serve as President and/or Vice-President.

Representative in the House and the Council

The People's Consultative Assembly (Majelis Permusyawaratan Rakyat or MPR): DPR (The House of Representative) and DPD (The Council of Representatives of the Regions)

Article 2 (1): The MPR shall consist of the members of the DPR and the members of the DPD who have been elected through general elections, and shall be regulated further by law. No longer appointed military member in the HouseNo longer appointed regional and group member in the HouseArticle 7C: The President may not freeze and/or dissolve the DPR.

Constitutional Law System in Indonesia

CONSTITUTION

PRESIDENTMPR

DPR DPD

COURT OF JUSTICE

SUPREME COURT

CONSTITUTIONAL COURT

Before amendment

BPK

2nd Amendment (2000)

• The Second Amendment was enacted on 18 August 2000, amending/adding 30 articles of the Constitution.

• The amendment has emphasized and explicated the rights and recognition of regional governments. It has also limited the President’s right in legislation process. The provision of Human rights was included as well. There was also explication about the duties of the National Military and the Police. Last but not least it has also explicated underlined and emphasized the identity of Indonesia through Chapter IXA and XV.

Constitutionality of Human Rights

• Chapter X, Human Rights (+ articles outside such Chapter, 27, 29, 30, 33, 34)• More comprehensive provisions, either CPR and/or ESCR, derogable and

non-derogable rights• Art. 28-28J• Article 28E (2) Every person shall have the right to the freedom to believe his/

her faith, and to express his/her views and thoughts, in accordance with his/her conscience.

• Article 28F: Every person shall have the right to communicate and to obtain information for the purpose of the development of his/her self and social environment, and shall have the right to seek, obtain, possess, store, process and convey information by employing all available types of channels.

The Challenge for Strengthening Human Rights• Constitutional pluralism, especially in looking at the implementation • Political democracy is more contested for those belongs to

dominant political party, elites and its networks • Media freedom is misused by owner for their economic and political

interests. • Democracy is more seen as procedural or formal processes, not

substantive or meaningful democracy • Corruption is still rooted in Indonesia’s democracy • Human rights violation is easily occurred, while the issue of Papua

and also past human rights abuses still dominant factor to be criticised,

Indonesia’s Post Soeharto: Two Decades Legal-Institutional Reform?

• Market friendly human rights paradigm - neo-liberal model• Impunity, continuous violence (inc. past human rights abuses), widespread

agrarian conflicts • Institutionalising cartel politics, illiberal democracy • Bureaucracy and judicial reform, why massive corruption is still taking place? Why

KPK has been weakened? • The rise of authoritarianism? (Power 2018; Wiratraman 2018) - attacking civil

liberties