Jakarta, IO – In mid-2024, Indonesia finds itself in a transition between administrations, with a change of president, en route to the end of the National Legislation Program (Prolegnas) for the 2020-2024 period. Some of the fervently debated bills are agency-related, such as the State Ministries Bill, the Constitutional Court Bill and the discourse on the revision of the Indonesian Armed Forces (TNI) Bill and the National Police (Polri) Bill.
In general, the revision of laws related to state institutions targets the authority of related institutions. However, changes in authority which are not based on scientific arguments, proper harmonization of regulations and riddled with political interests will only result in creating overlapping authority between institutions, weakening their institution’s capacity, or giving excessive power, thus laying a foundation for arbitrariness. The impact will be inevitably felt by the people. If the performance of state institutions declines due to suboptimal separation of powers – or even arbitrariness, the people’s welfare and democratic values will be at risk of being degraded.
History has written about how Indonesia passed through many storms due to an unequal division of institutional authority, a lack of independence and an invasion of people’s human rights. For example, in the Old Order era, the People’s Consultative Assembly had the power to appoint the President. The hauntingly “executive heavy” president’s power, many military figures deeply involved in the administration and the judiciary, which was not independent in the New Order era, are all written in Indonesian history. These experiences are valuable lessons for the future of Indonesian democracy.
As a result of Reformasi (the Reform movement), the 1945 Constitution of the Republic of Indonesia is ranked as the highest source of law in Indonesia. All state institutions, including the legislative, executive and judiciary, are subject to limits stipulated in the 1945 Constitution. Although the legislative, executive and judicial institutions have equal standing, the separation of powers will never be perfect, as stated by James Madison (1788). The people’s human rights, regulated in the 1945 Constitution, as the main source of law, are also the basis for the main protection of citizens.
Currently, plans for revising the State Ministries Law, the Constitutional Court Law, the TNI Law and the Polri Law have brought Indonesia into a looming threat of a declining spirit of Reform. The provisions proposed for revision in each bill may threaten democratic values and the spirit of Reform that has been fought over for a long time.
The State Ministries Bill proposes to cease regulating the number of ministries. Therefore, the President has the prerogative to increase or decrease the number of ministries. However, if the number of ministries increases while lacking adequate monitoring mechanisms and resources, the integrity and trust of the public may be jeopardized. Then, the “executive heavy” era can return to haunt the people if the executive can work without oversight, which should balance with the number of existing ministries.
Now, there is the Constitutional Court Bill, which proposes to increase the age requirement for constitutional judges from 55 years to 60 years and reduces the term of office for judges from 15 years to 5 years. A higher age requirement can limit community participation in contributing to the Constitutional Court. The higher age requirement, along with the already-demanding qualification requirements for constitutional judges, means that the people’s right to participate in government as protected in the Constitution is being impeded. Similarly, reducing the term of office of constitutional judges could disrupt the independence of judges, because political contacts at the Constitutional Court will be more frequent. If previously the Constitutional Court only had to deal with institutions proposing its judges once every 15 years, it will have to deal with them every five years if the Bill is passed.
The TNI Bill is projected to assess the status of the TNI, the age of service, the relationship between the TNI and the Ministry of Defense and budget issues. Even though the points and draft of the TNI Bill were still unclear at the time of writing of this article (24/5/2024), civil society has sent strong signals regarding the status change of the TNI, which must be closely monitored so that it does not once again have the authority to fill in civilian positions. Admitting TNI into the Government is blatantly against the spirit of Reform, because it may bring Indonesia back to another “New Order” era.
The Polri Bill is also in the spotlight, because of the discourse on expanding the institution’s authority to conduct wiretapping without balancing it by giving more power to monitoring agencies for the police, such as the National Police Commission. In addition, the Bill also retains the Neighborhood Watch Program, which allows the community to form security measures for community interests. The excessive authority to wiretap can imperil citizens’ rights to privacy, particularly when it is not balanced with strict supervision. This could lead to criminalizing freedom of expression, which is a right protected by the Constitution. Then, the Swakarsa program has great potential to be misused by irresponsible people because the protection of “community interests” tends to lack parameters. Therefore, it can be discriminatory, retaliative and abusive of other people’s human rights.
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Looking at past trends, such as the revision of the Corruption Eradication Commission (KPK) Law and the Job Creation Law, both the House of Representatives (DPR) and the Government were not transparent and did not allow participation in revising these laws. The parliament also has to face the short time it has to “catch up” in creating laws amid the sharp changes in Indonesian leadership. This situation may further decrease the quality of legal works issued by the DPR and threatens to isolate the public from participating.
Thus, we must continue to maintain the spirit of Reform and uphold democracy. Indonesia, which is also a country of law, must produce legal products that are formally and materially based on applicable laws and regulations, are fair and full of public interest. Public and civil society organizations must monitor the development of the revision of the laws above, so that they do not deviate from the nation’s ideals as a democratic country, one based on Pancasila. The DPR and the Government should not pass provisions regarding the authority of state institutions that are contrary to democratic values and the spirit of Reform for the sake of a few people. The murkiness of Indonesian democracy in the past must stand as a negative example and be cited with improvements for the future, and not be ignored by making the same or even worse mistakes.