IN INDONESIA AND THE UNITED STATES:

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IMPEACHMENT

A COMPARATIVE STUDY

BY

1W AN SATRIA WAN

A THESIS SUBMITTED IN PARTIAL

FULFILLMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF COMPARATIVE LAWS

AHMAD IBRAHIM KULIYY AH OF LAWS INTERNATIONAL ISLAMIC UNIVERSITY

MALAYSIA

SEPTEMBER 2003

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ABSTRACT

The impeachment process is both crucial and controversial as it may lead to the removal of the head of the executive branch of the country. In Indonesia, this problem rooted in the vagueness of the 1945 Constitution on ruling the impeachment issue.

Meanwhile, in the United States, even though the Constitution provides provisions on impeachment, debates still arise since the term "misdemeanors" did not have a precise meaning. Hence, politicians interpret it in line with their own political interests. This research aims to explore and analyze the above constitutional problems based on the popular cases that occurred in both Indonesia and the United States i.e. President Sukarno, Abdurrahman Wahid, Andrew Johnson, and William Jefferson Clinton. The research also attempts to find the similarities and differences between the two countries' concept of impeachment as well as their experiences. In conclusion, the research attempts to offer some important notes for a better impeachment process in the future.

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APPROVAL PAGE

I certify that I have supervised and read this study and that in my opinion, it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a thesis for the degree of Master of Comparative Laws.

ABDUL bZ-IzBARI

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I certify that I have read this study and that in my opinion it conforms to acceptable standards of scholarly presentation and is fully adequate, in scope and quality, as a thesis for the degree of Master of Comparative Laws.

IBRAHIM BIN ISMAIL

This thesis was submitted to the Department of Public Law and is accepted in partial fulfillment of the requirement for the degree of Master of Comparative Laws.

s

This thesis was submitted to the Ahmad Ibrahim Kulliyyah of Laws and is accepted as partial fulfillment of the requirement for the degree of Master of Comparative Laws.

IV

Nik Ahmad Kamal bin Nik Mahmod Dean, Ahmad Ibrahim Kulliyyah of Laws

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DECLARATION

I hereby declare that this thesis is the result of my own investigation, except where otherwise stated. Other sources are acknowledged by footnotes giving explicit references and a bibliography is appended.

Name: IWAN SATRIAWAN

Signature _ _ _ _ _ _ _ _ Date

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INTERNATIONAL ISLAMIC UNIVERSITY MALAYSIA DECLARATION OF COPYRIGHT AND AFFIRMATION OF

Impeachment in Indonesia and the United States:

A Comparative Study

No part of this unpublished research may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise without the prior written permission of the copyright holder except as provided below.

1. Any material contained in or derived from this unpublished research may only be used by others in their writing with due acknowledgment

2. The IIUM or its library will have the right to make and transmit copies (print or electronic) for institutional and academic purposes

3. The IIUM library will have the right to make, store in a retrieval system and supply copies of this unpublished research if requested by other universities and research libraries.

Affirmed by lwan Satriawan

Signature Date

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In the Name of Allah, the Most Gracious and the Most Merciful

Dedicated for A Better Constitutional System in Indonesia,

to my beloved father and mother, and to my supportive wife and lovely daughter.

May Allah always bless you in this world and in the Hereafter.

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ACKNOWLEDGEMENTS

Praise be upon Allah, the Most Knowledgeable for guiding me in accomplishing this dissertation and peace be upon the Prophet Muhammad (PBUH) who has been sent to enlighten the human being from ignorance. On this occasion I would like to thank those who have directly or indirectly helped me in accomplishing this work. I would like to express my special gratitude to my supervisor, Associate Professor Dr. Abdul Aziz Bari, for his great commitment in helping me to complete this thesis. I am indebted to him not only in terms of his sharing of knowledge but also in terms of his encouraging me to think critically and have a strong commitment to be a good scholar.

I am truly indebted to both my mother and father for their attention to my health, education, attitude and religious practices. To my father, Lukman Umar, I would like to give my special thanks for his teaching, encouraging and inspiring me on how to be a strong Muslim and to have a serious concern to society. And also to my mother, Murni, I would like to record my special gratitude for the care she gave me in all situations. May Allah bless both of them in this world and in the Hereafter. For my brothers and sister in Padang, Da An and family, Da Ujang and family, Ipat, Dini and Izik who have always supported my effort to be a better Muslim. My special thank also has to be given to my father in law, Syafri and mother in law, Hirdawati and family who have given unrelenting support to the success of my study. I owe a lot to Etek Ely and Pak Arifin and family for their kindness and help since I had been studying in Malaysia. May Allah bless you all.

I would also like to thank to my family in Jakarta, dr. Tazarly and family, Nani and family, as well as my friend Refly and family who have always been encouraging and helping me very much for the success of my study in Malaysia. May Allah bless them all in this world and in hereafter.

I would also like to express my gratitude to the lecturers at the Ahmad Ibrahim Kulliyyah of Laws, International Islamic University of Malaysia (IIUM) who have helped me to sharpen my understanding of both conventional and Islamic Law as well as the skills needed to conduct appropriate research. Without their kindness in sharing their knowledge I would have missed many important ideas in this thesis. I am also grateful to Muhammadiyah University of Yogyakarta for covering all tuition fees and living cost during my study in Malaysia.

In accomplishing this thesis, I got a lot of support from my colleagues, the lecturers and the administrative staff of Muhammadiyah University of Yogyakarta, particularly from the reformers at Faculty of Law, members of the postgraduate students at the Kulliyyah of Laws, the Sungai Cincin neighborhood for looking after my family when I was not around, members of the Indonesian student association at the IIUM and many others whose names and groups are too numerous to mention. All I could say is thank you very much for all the support and help you have given me.

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I do thank also to my brothers and sisters in the big family of Moslem Brotherhood of Faculty of Law, Gadjah Mada University (KMFH UGM), all activists of Lembaga Bina Kesadaran Hukum Indonesia (LBKHI), all activists of Indonesian Court Monitoring (ICM), and all student activists at the Faculty of Law, Muhammadiyah University of Y ogyakarta, who have shared their idea and support for the success of my study. I pray to Allah SWT that May Allah bless them in fighting for a better judicial court in Indonesia as the main goal of the struggle.

Finally, I would like to express my special thanks to my beloved wife, Rinawati, who has accompanied and looked after me both in the happy and the hard times. Without her support I would not have been strong enough to solve the problems that I have had to solve. To my daughter, Rehan, thank you very much for the smiles you have shared with me. I hope and pray to Allah that the life of your generation in the future will be as beautiful as your smiles.

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LIST OF STATUTES

Indonesia

Temporary People's Consultative Assembly Republic oflndonesia, the Decree No.

XXV/MPRS/1966

Temporary People's Consultative Assembly Republic oflndonesia, the Decree No.

:XXXIII/MPRS/1967

People's Consultative Assembly Republic of Indonesia, the Decree No. III/MPR/1978 , the Decree No. IX/MPR/1998

- - - -

- - - ' t h e Decree No. II/MPR/1999 - - - -, the Decree No. III/MPR/2000 - - - -' the Decree No. V /MPRS/1966 The 1945 Constitution of Republic of Indonesia and Its Explanation

The Third Amendment of the 1945 Constitution of Republic of Indonesia

United States of America The U.S. Federal Constitution

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BULOG CIA CSIS DPR DPRS DPR-GR GOLKAR IBRA KKN MPR MPRS NU PKI PDIP

PAN

PPP

PKB

PBB PBNU

Pangkopkamtib

TAPMPR TNIAD UUD

us

LIST OF ABBREVIATIONS

Badan Urusan Logistik (National Logistics Agency) Central Intelligence of America

Centre for Strategic and International Studies Dewan Perwakilan Rakyat

(People's Representative Body) Dewan Perwakilan Rakyat Sementara

(Temporary People's Representative Council) Dewan Perwakilan Rakyat Gotong Royong

Golongan Karya (Functional Groups), state political party under the New Order

International Bank Reconstruction Agency Korupsi, Kolusi dan Nepotisme

(Corruption, Collusion, and Nepotism) Majelis Permusyawaratan Rakyat (People's Consultative Assembly)

Majelis Permusyawaratan Rakyat Sementara (Temporary Peoples Consultative Assembly) Nahdatul Ulama (Revival of Religious Scholars) Partai Komunis Indonesia

(Indonesian Communist Party)

Partai Demokrasi Indonesia Perjuangan (Indonesian Democratic Party of Struggle)

Partai Amanat Nasional (National Mandate Party) Partai Persatuan Pembangunan

(United Development Party) Partai Kebangkitan Bangsa (The National Awakening Party)

Partai Bulan Bintang (Crescent Moon and Star Party) Pengurus Besar N ahdatul Ulama

(National Board of Nahdatul Ulama)

Panglima Komando Operasi Pemulihan Keamanan dan Ketertiban (Commander of Operations Command for the Restoration of Order and Security)

Ketetapan Majelis Permusyawaratan Rakyat (Decree of People's Consultative Assembly) Tentara Nasional Indonesia Angkatan Darat (The Armed Forces of Indonesian National Army) Undang-Undang Dasar (Constitution)

United States

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CHAPTER!

INTRODUCTION

1.1. Introduction

The impeachment of President Abdurrahman Wahid (Gus Dur)¹has become the most popular constitutional issue in Indonesia in the last few years. The issue has raised some constitutional debates on the rules of presidential impeachment in the Constitution since the Constitution does not provide clear provisions for impeachment.

The impeachment process began in concomitant when 500 members of Parliament accused Gus Dur of embezzling $4.1 million in state funds from Yanatera Foundation and his inconsistency in giving an explanation before the members of Parliament (DPR) pertaining to $2 million from the Sultan of Brunei.² Some analysts believe that another reason for Gus Dur's impeachment was due to his acts of replacing members of his cabinet, many of whom were parts of the coalition which brought him to power.

The impeachment of Gus Dur had become a constitutional issue since the Indonesian Constitution does not provide provisions regarding impeachment. The members of Dewan Pewakilan Rakyat³(DPR), and Majelis Permusyawaratan Rakyat (MPR)4 only

1 Gus Dur is the nickname of Abdurrahman Wahid. Gus means a prince. a popular title for a son of an ulama in a Pondok Pesantren (Islamic Boarding School) in the traditional Muslim society of East Java. Gus Dur is the first president of Indonesia who comes from a Muslim (santri) background.

2 See Paridah Abdul Samad, Gus Dur A Peculiar Leader in Indonesia's Political Agony. Selangor, Penerbit Salafi, pp.340-344.

3 Dewan Perwakilan Rakyat (DPR) stands for People's Representative Body, or Parliament.

4 Majelis Permusyawaratan Rakyat (MPR) stands for People's Consultative Assembly. a highest body in the Indonesian Structure of Government.

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reterred to the Decree ot MPR as the grounds for the impeachment process. This unrelenting debate prompted political riots in some regions of Indonesia, particularly in East Java, Gus Dur's strongest political base.

This dissertation deals with the issue of impeachment in Indonesia and the United States, especially on the rules of impeachment in the Constitution as well as the practice in both countries. This is a very important issue for Indonesia since there were no clear provisions in the Constitution about impeachment before the MPR amended the 1945 Constitution by incorporating some provisions pertaining to the impeachment issue. In the debate on Gus Dur's impeachment, the controversy lies in the weakness of the Constitution in ruling the impeachment process and debate on the position of the Decree of MPR in governing the issue.

In order to enrich the perspective of the issue, this thesis will also describe the United States' concept and experience regarding impeachment. As we know, the United States has comprehensive rules as well as experiences pertaining to the impeachment trial of a president, having had a number of cases such as Andrew Johnson, Richard Nixon and William Jefferson Clinton. Here, a comparative study will analyze the issue of presidential impeachment in both countries.

As a conclusion, it will propose some important lessons from to be learned the experiences of both countries and make suggestions for a better impeachment process in the future.

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1.2. Statement of Problem

Impeachment is a familiar concept to the framers of any constitutions. The argument for including it in the constitution and making it applicable to the president, as well as vice president, judges, and other civil officials of the government, is straightforward.

That is because the president has a fixed term of office. Therefore, if he does something unlawful according to the constitution during his term of office, there ought to be some procedure for removing him before his term expires. ⁵

The most significant constitutional question about impeachment and removal is what the appropriate grounds for those actions are. In the U.S. Constitution, it is stated in Article II, Section 4 that the president, vice president and all civil officials of the United States, shall be removed from office on impeachment for and conviction of, treason, bribery, or other high crimes and misdemeanors. Treason and bribery are terms of relatively precise meaning, with the former being defined in the Constitution itself, as stated in Article III, Section 3. The phrase "other high crimes and misdemeanors", however, raises a number of questions. Is that phrase limited to acts which would be indictable as criminal offenses, or is it intended to reach abuses of office or breaches of trust not constituting criminal acts? If impeachment and removal may properly rest on activities which do not constitute crimes, are there any limits in principle on the type of conduct which can be a basis for impeachment and removal, or should the exercise of these powers be governed solely by the free play of our political system ?⁶

5 See Posner, R.A, An Affair of State, United State of America. Harvard University Press. 1999.

p.97.

6 See Boris Berkovitch and Thomas J. Schwarz, The Law of Presidential Impeachment. A Report from The Committee Report on Federal Legislation. January 21. 1974.

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Throughout American history, there has been a controversial debate regarding this, particularly on the issue of what "other high crimes and misdemeanors" are. As mentioned by Posner, in 1974 the Republicans and Nixon's lawyer, St. Clair, were pushing for the narrow, formalist construal of high crimes and misdemeanors. and the Democrats, including Clinton himself and anti-Nixonians, such as Charles Black, were pushing for broad construal. In 1998, the roles were reversed, with the Republicans taking the position of the Democrats in 1974 and the Democrats the position of Republicans in 1974. Such role reversals are common because legislators and other politicians are not committed to consistency. ⁷ In the American experience, there have been no presidential impeachment that were not suffused with politics.⁸

Although rules for impeachment have been set out in the Constitution, in practice, it still raises some problems and brings a debatable interpretation, as what has happened in the United States' history as mentioned above.

In the case of Indonesia, there is a further problem since the Constitution does not provide clear and specific provisions on impeachment. The rules of impeachment are stated in the explanation of the 1945 Constitution and the Decree of MPR, the highest political authority. They are TAP MPR No. II/MPR/1999, TAP MPR No.

II/MPR/2000, and TAP MPR NO III/MPR/1978.

In the explanation of the 1945 Constitution, it is stated that in conducting his power, a president has to follow the state's guidelines set up by the MPR. The MPR has the

7 See Posner. R.A, An Affazr of State, p 100

8 lbzd, p.111.

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highest authority of state-power and, therefore, the president has to be subject to the MPR.⁹

Based on article 5 of the MPR's Decree, it is stated that the MPR has authority to remove the president from his office during his term of office if the president is considered to be breaking the guidelines of State (Haluan Negara) or Constitution.

The president will be asked to give his report in a special session before the members ofMPR.¹⁰

However, as has happened in the United States, there is still great debate on the rules of impeachment in Indonesia, particularly on the definition of impeachable offenses and procedures of the impeachment. The 1945 Constitution and its explanation, as the highest Constitution, does not contain clear and specific provisions for impeachment, whereas in some decrees of MPR, it does not clearly explain the definition of conduct that is considered as breaking the guidelines of the state. These problems emerged during the impeachment process of Abdurrahman Wahid in 2001.

Based on the description above, it has been explained that in America and Indonesia, there are some problems in their Constitutions. Firstly, in case of Indonesia, there were no specific provisions in the Constitution, as the supreme law which contains presidential impeachment before the Third Amendment of the 1945 Constitution. The presidential impeachment was ruled only generally in the explanation of the 1945

9 See Suwoto Mulyosudarmo, Harian Kompas. 14-7-2001.

10 Ibid.

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Constitution and some decrees of MPR. These brought situation to unrelenting debate or even political turmoil in the case of Abdurrahman Wahid' s impeachment.

Secondly, there is still no clear definition of the precise type of actions that could be

considered as unlawful conduct and that break the state's guidelines. In relation to this, it makes this research very important in order to find a better solution regarding the issues.

In the United States, on the issue of presidential impeachment has been set out in certain provisions of the Constitution. Moreover, the United States is a country which has some experience in the process of impeachment of a president or vice president.

But, there is still controversy over the definition of "other high crimes and misdemeanors which is stated in Article II Section 4. Therefore, in American history, there were some experiences where unclear definition of this article has driven politicians to manipulate it on political issues rather than legal issues. Thus, it is relevant and urgent to discuss how to make an ideal Constitution pertaining to the issue of presidential impeachment.

Furthermore, it is also relevant to compare the Indonesian Constitution and the United States Constitution to analyze sharply the weaknesses and the strengths of both constitutions. The research also attempts to find the similarities and the differences between both Constitutions. Finally, it will discuss how to arrive at a solution to overcome the weaknesses in order to constitute a better concept of presidential impeachment. In other words, the research has an objective to give some ideas to

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complete the Constitution, and, of course, with great hope that it will be useful for both countries to make a better Constitution.

1.3. Hypothesis

Based on the previous discussion, a hypothesis can be drawn that if the Constitution does not provide certain and clear provisions about presidential impeachment, it will be easily manipulated by politicians and can prompt political tension or even political turbulence in the society. Thus, by incorporating specific and clear articles pertaining to presidential impeachment in Constitution, it will reduce the possibility of politicians manipulating the issue based on mere political interest and also deter political tension or political turbulence in the society.

1.4. Literature Review

As far as the writer knows, specific books on impeachment in Indonesia that analyze the issues from a legal perspective are not available. Mostly, the books study the issues from political perspective. Accordingly, this research will provide the readers with a deeper analysis on the impeachment issues from a legal perspective.

Abdul Haris Nasution (1975) and J.D. Legge (1972) describe the history and the facts of the impeachment of President Sukarno. An analysis of the fall of Sukarno in 1967 can be found as well in some articles written by Indonesian legal scholars like Soewoto Mulyosudarmo, and Ismail Sunny. Meanwhile, Yahya Muhaimin (1982).

Crouch (1986) and Raj Vasil (1997) explain the political setting of the fall of Sukarno.

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In the case of Abdurrahman Wahid, a number of books can be found. However, the analysis still focuses on the political analysis. Greg Barton (2002) and Khamami Zada (2002) explain the Gus Dur's rise to power and the problems during his presidency with his political analysis. However, we can highlight some facts that can be drawn from a legal perspective.

Other comments from legal scholars can be found as well in articles by Ismail Sunny and Harun Al Rasyid pertaining to Abdurrahman Wahid's removal. One argued that it was not constitutional and another refuted this, saying that it is a constitutional process based on the Indonesian Constitution. For instance, like Ismail Sunny, a constitutional law expert in Indonesia, in his interview, argued that the impeachment trial of Gus Dur was constitutional because it is clearly stated in the explanation of the 1945 Constitution that the MPR has the authority to call a president to give an accountability speech pertaining to any issues that he is accused of by the DPR.¹¹He further opined that the Constitution states that the president is subordinate to the PCA, and gives it explicit power to remove the President if it believes he transgresses the state's guidelines.

On the other hand, Harun Al Rasyid, another constitutional law expert at the University of Indonesia argued that the impeachment trial of Gus Dur was not constitutional because there was no certain article in the Constitution that rules about the issue. The Decree of MPR No. III/MPR/1978 that was used as the ground of

11 See his interview about Gus Dur impeachment in Panji Masyarakat Magazine. August. 1. 2001.

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impeachment, was not relevant.¹² According to him, in constitutional theory, the Decree of MPR is not recognized as a part of legislation.

Since there are limited references in textbooks which analytically discuss the issue of impeachment concept and practice from a legal perspective, particularly Abdurrahman Wahid's removal, this research will make a significant contribution in understanding the case better. Hence, this research is becoming urgent and important as well.

Furthermore, as to comparing presidential impeachment under the Indonesian Constitution and the United States, there is no specific and serious research on it, yet.

Therefore, this research will be important and significant in exploring and finding the best solutions for the current issues in both countries.

There are a number of books relating to the concept as well as the practice regarding impeachment issues in the United States. Black (1974) explains the fundamental concept of impeachment in his book, The Impeachment A Handbook. As a handbook of impeachment, the book elaborates meaning, procedures and impeachable offenses in the U.S. Constitution.

Gerhardt (2000), in his book The Federal Impeachment also discusses in detail about history, scope and procedure of presidential impeachment in America. In his book, An Affair of State, Posner (1999) elaborates about the origins, development and issues

12 See his interview about Gus Dur impeachment in Panji Masyarakat Magazine. June. 6. 2001. He is one of the legal adviser of the presidency when Gus Dur was on the chair.

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regarding presidential impeachment in the United States, especially the impeachment trial of Clinton. Posner states that in American experiences, no presidential impeachment has failed to be suffused by politics.

The review of related literature will cover the origins, developments and problems of presidential impeachment. Thus, the review of literature must be done in Indonesia to search specific documents and books pertaining to the issue. On the other hand, there are many books, journals, articles, as well as reports of decided cases regarding presidential impeachment in the United States that can be found in Malaysia, especially in IIUM library. In addition, it is also easy to find other materials like reports, and journals through internet sites.

1.5. Objectives of the Study

This research has some objectives related to the issue of presidential impeachment.

They are, firstly, it has objective to understand more about the nature of impeachment as one means to remove a president, as well as its history, scope and procedure;

secondly, to analyze further the similarities and differences between the Indonesian and the United States Constitutions, particularly regarding presidential impeachment;

thirdly, it has objective to analyze the weaknesses of both Constitutions and the practices which bring some constitutional problems in the process of removing a president from the office; andfourthly, to arrive at suggestions to complete and make a better Constitution in governing presidential impeachment.

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1.6. Methodology

This present research employs library-based research memoao1ogy with vanous approaches normally used in legal research. These approaches are employed in accordance with the nature of the study. Given the main objective of this research, i.e.

to analyze the weaknesses of the Indonesian and the United States Constitutions and find some suggestions for making better Constitutions pertaining to presidential impeachment, the analytical and comparative method is mostly used in this paper.

The analytical method is employed here to examine the concept, particularly the weaknesses of both Constitutions in governing presidential impeachment. It is also used to examine the impact of unclear articles in the Constitution pertaining to presidential impeachment and thus intends to come up with suggestions as to improve the Constitution.

Following the analytical method, the comparative method is applied here to enrich the insights in analyzing the strengths and weaknesses of both Constitutions. The comparative method is also used in highlighting some features of both Constitutions.

Sources of data

In legal research, legal sources may differ in two broad categories: primary sources and secondary sources. The primary sources consist of the authoritative record of the law made by the law-making authorities. In relation to this topic, the primary sources will be taken from the Indonesian and the United States Constitutions, and some decrees of MPR.

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IN INDONESIA AND THE UNITED STATES:

IMPEACHMENT

APPROVAL PAGE

IBRAHIM BIN ISMAIL

DECLARATION

Impeachment in Indonesia and the United States:

ACKNOWLEDGEMENTS

TABLE OF CONTENTS

CHAPTER 6 : CONCLUSION ... 105

LIST OF STATUTES

Indonesia

BULOG CIA CSIS DPR DPRS DPR-GR GOLKAR IBRA KKN MPR MPRS NU PKI PDIP

LIST OF ABBREVIATIONS

CHAPTER!

1.1. Introduction

1.2. Statement of Problem

1.3. Hypothesis

1.5. Objectives of the Study

1.6. Methodology

Sources of data