Law on legislative bodies vs presidential system M Faishal Aminuddin ;   A lecturer at the school of Political Science, Brawijaya University in Malang, East Java

JAKARTA POST, 26 Agustus 2014

                                                

The decision of the House of Representatives to amend the Legislative Institution Law, otherwise known as the MD3 Law, has sparked intensive public debate. During a public hearing in May, the House’s special committee deliberating the bill received a notice from the National Police chief regarding an article of the law that authorizes the House to summons any citizen, if necessary by use of force. The police said forced summons contradicted the Criminal Code and the 2002 Police Law, which only authorizes the police to carry them out.  The law has also been criticized for virtually giving lawmakers legal immunity as it requires law enforcement agencies to obtain consent from the House’s Ethics Council to summons lawmakers implicated in criminal cases for questioning, unless they are caught red-handed committing crimes or are suspected of committing crimes punishable by life imprisonment or the death penalty. Questions have been raised over the future public accountability of lawmakers. Indeed, the Corruption Eradication Commission (KPK) also argued that such “immunity” posed a considerable threat to the fight against corruption. The public is also curious as to how the procedural rules of the MD3 Law will affect the relationship between the president and the legislatures. Despite having come out on top in the 2014 legislative election, the Indonesian Democratic Party of Struggle (PDI-P) appears to be the most disadvantaged due to the new law as it imposes a voting mechanism for the selection of the House speaker as well as leaders of the House’s 11 commissions and other bodies. The PDI-P formed a coalition comprising the National Awakening Party (PKB), Hanura Party and NasDem Party, which altogether hold only 207 House seats and would be easily defeated by the coalition led by the Gerindra Party, which is supported by the Golkar Party, National Mandate Party (PAN), United Development Party (PPP), Prosperous Justice Party (PKS) and Democratic Party, which controls 60 percent of the House’s 560 seats. In practice, the impact of such a new political configuration will be pervasive. Most likely, the MD3 Law will weaken the Indonesian presidential system. President-elect Joko “Jokowi” Widodo and vice president-elect Jusuf Kalla, who were nominated by the PDI-P-led coalition, must be ready to deal with a stronger House. There are several steps, however, that could be taken to uphold the presidential system, which is enshrined in the Constitution. First, to keep the House from becoming too powerful with low public accountability, the president must employ several tools that reflect “parliamentarization of presidentialism” or presidenciliasmo de coalizao as practiced in Brazil. Among such tools is establishing a single-party based Cabinet if the president’s party holds outright majority in the legislature or, on the contrary, forming a coalition government (Thibaut, 1998). Second, the elected president may co-opt politicians by distributing Cabinet seats to major political forces in the House to secure majority support. Another way is to appoint ministers from non-partisan figures or professionals in the hope the president can rely on support from the public. Unlike losing presidential candidate Prabowo Subianto and his running mate Hatta Rajasa, who had signaled that if elected they would form a grand coalition in their Cabinet that represented all parties in the House, Jokowi-Kalla have frequently emphasized a professional-based Cabinet. With the current procedural rules in the MD3 Law, either Cabinet design is not free from problems.  For Jokowi, his “slim” Cabinet design, which may lack support from the House, looks fragile because presidentialism in Indonesia does not recognize the inherent veto right for the president and there is no mechanism such as a referendum to test the correlation between the House’s claims and public interests. The absence of the president’s veto right and referendum as presidential bargaining powers could be exercised by the legislative body to unseat the president before the end of his term. Under the presidential system, the president can be forced to step down due to incapacity and impeachment. We may learn from the interesting experiences of Latin America, where presidentialism in a multiparty system is widely used. In Ecuador, the government can run effectively only if the president secures outright majority support in the parliament. In 1997, the Congress dismissed president Abdala Bucaram for mental incapacity following a parliamentary vote. In 2005, president Lucio Gutierrez was impeached after 62 percent of the Congress voted against him. Above all, the current configuration of the procedural rules in the MD3 Law has increasingly increased the power of legislative bodies. In essence, it is more difficult for the elected president to tame the legislature and break the status quo. If the MD3 Law is not revised, it is likely that a coalition of parties that hold the majority seats at the House will bring down the president and destroy the current presidential system. ●