Separation of powers in Indonesia

Summary

  • Presidential system – three distinct branches of government
  • President is both HoS and HoG
  • Elected directly by the people, but candidates chosen by the legislature
  • Classified as ‘tricameral’ since the PCA has distinct functions
    • People’s Consultative Assembly – Majelis Permusyawaratan Rakyat Republik Indonesia – 692
      • Regional Representatives Council – Dewan Perwakilan Rakyat – 560
      • People’s Representatives Council – Dewan Perwakilan Daerah – 132

Brief History

  • 1945 – Declaration of Independence
  • 1945 – Original Constitution written (provisional)
  • 1950 – Second Constitution written
  • 1959 – Return to original Constitution
  • 1999 – 2002 – amendments to original Constitution

Chapters of the Constitution

I – Form of state and sovereignty – establishes a unitary state elected by the people

II – the People’s Consultative Assembly – Parliament to be made up of the People’s Representative Council and the Regional RC, directly elected

III – Executive powers of the state

V – Ministers of state – appointed by President, cannot be members of the PCA

VI – Local government – but the PCA has ultimate sovereignty over everything

VII – People’s Representative Council

VII-A – Regional Representative Council

VII-B – General elections – free fair etc. elections every 5 years. Candidates for PRC are parties, RRC must be individuals

VIII – Finance (VIII-A sets up Supreme Audit Agency)

IX – Judicial power – independence of judiciary, establishes Constitutional Court

X-XVvarious human rights such as education, health, religion, torture etc.

XVI – How to amend the Constitution

Powers of the Head of State

  • Appoint Ministers (non-members of the PRC, but must be approved by PRC)
  • Propose laws to the PRC and discuss them
  • Has veto power in debates and discussions: if President does not approve of a bill, it cannot be put to vote by the PRC.
  • Make government regulations, subject to immediate review by Par
  • Emergency power: law by proclamation/decree, subject to immediate review by Parl
  • Supreme commander of the defence force, but requires consent of the Defence Minister and the Chief of the Defence force
  • Can only sign treaties etc. if ratified by PRC
  • Grant pardons
  • Appoints Chief Justice

Powers of the Judicature

  • Supreme Court is highest court of appeal – Muhammad Hatta Ali CJ
  • Constitutional Court hears constitutional issues, elections and political parties, and its decisions are final
  • The two courts are separate
  • 9 judges – 3 nominated by PCA, 3 nominated by President, 3 nominated by Supreme Court. All must agree on nominations. Hamdan Zoelva.
  • Civil law system – if no statute law exists, judges decide based on their moral obligations, not legally binding on future court
Checks and balances:
  • Can try the President and remove from office
  • Can strike down laws if unconstitutional (judicial review)

Powers of the Legislature

  • Make laws
  • Consists of the PRC, the RRC and the PCA
  • PRC may make any laws, has authority over the Budget
  • RRC may make laws only regarding local/regional affairs
  • RRC may advise the PRC but may not revise or amend legislation
  • PCA proposes candidates for presidency, but must be put to a popular vote
Checks and balances:
  • In emergencies, if President committed a crime etc.
    • Can ask the Supreme Court to try President and remove from office
    • Can ask Constitutional Court to try President if SC does not
    • Can call a sitting of both houses (PCA) to impeach the President or Ministers
  • Acts a supervisor to executive power
  • May conduct interpellation, and question President on policies
  • Parliamentary sovereignty – if it’s a non-constitutional matter
  • Can impeach judges

Powers of the Executive

  • See powers of President. Note that Ministers often comprise members of all parties and non-party officials. The VP is usually not of the same political party)
  • Consists of the President, VP and Cabinet (which includes Chief of Police, and Chief of Armed Forces)
  • Executes laws passed by legislature and decisions made by judicature
  • Sets government policy
  • May propose and discuss laws to the legislature
  • Cabinet administers departments, advises President on government policy
  • May appoint members of the independent Judicial Commission, able to advise appointments/dismissals of judges
Checks and balances:
  • President may grant pardons (clemency)
  • Can veto legislation
  • Can reject the budget in areas of national significance
  • May dismiss judges on advice of legislature and Judicial Commission

Conventions

None. Constitution must be interpreted as it is written.

Constitutional Crises

None, really. President Abdurrahman Wahid was impeached, for corruption and attempting to undermine the democracy by using the army. Note that the Army did not comply with his demands

Constitutional Change

  • Originally, Suharto, Indonesian dictator, decreed that any changes to the Constitution needed to be put to referendum.
  • To pass, the referendum must have had a 90% turnout and 90% of voters must be in favour of the change. Thus, it was impossible to change the Constitution.
  • He contributed to the original Constitution, which was originally meant to be provisional whilst Indonesia was fighting its independence against the Dutch, and thus gave many powers to the executive.

 

  • However, these were rescinded after his fall from power.
  • As a result of many sessions of the PCA (1999-2002) specifically to amend the constitution, it became much more democratic.

Most important changes include:

  • Setting up of the Constitutional Court
  • The members of the PCA were all directly elected (instead of chosen by exec)
  • Pres and VP elected by ppl rather than chosen by PCA
  • Right to free, fair, secret and general elections
  • Addition of human rights

Now, to change the constitution,

  • 2/3 of the PCA must be present
  • A simple majority is required
  • President may propose and discuss amendments

 

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