DEVELOPMENT OF HUMAN RIGHTS PROVISIONS IN INDONESIAN

CONSTITUTION 1945

Heru SusetyoSenior Lecturer

Faculty of Law University of Indonesia, Depok- INDONESIA

Snapshot of Republic of Indonesia

• Population : 242 million (2012)• Area : 1,919,440 km2) or equal to

735,355 sq mi• Islands : 13.667 islands• Independence : 17 August 1945 (from

Netherlands and Japan)• Acknowledged by the Netherlands : 27 December

1949• Joined the United Nations 28 September 1950

POLITICAL SYSTEM

• Presidential representative democratic republic

• President is both head of state and head of government

• Multi-party system (there were 12 national parties and 3 local parties (provincial-based in Aceh Province) for general election in 2014.

• Next general election will be April 2014

Multi Party System1971 – 1997 only three parties1999 (48 parties) 2004 (24 parties) 2009 (44 parties)2014 (15 parties)

POLITICAL SYSTEM (2)

• Executive power is exercised by the government• Legislative power is vested in both the

government and two People’s Representative Councils (DPR – House of Representatives and DPD- Regional Representatives Council)

• The judiciary is independent of the executive and the legislature

• The 1945 constitution provided for a limited separation of executive, legislative and judicial power

POLITICAL SYSTEM (3)Legislative Branch• People’s Consultative Assembly (MPR)• Regional Representative Council (DPR) > 560 members• People’s Representative Council (DPD) > 4 representatives

from each provinces (33 provinces) = 132 members

Judicial Branch• Supreme Court (Mahkamah Agung)• Constitutional Court (Mahkamah Konstitusi) established

in 2003• Judicial Commission (Komisi Yudisial) established in 2003

Administrative Divisions

• Provincies (Propinsi)• Regencies/ Cities (Kabupaten/ Kota)• Sub Districts (Kecamatan)• Villages (Desa)

INDONESIAN CONSTITUTIONS1945 – 2011 (three constitutions)

• 1945 CONSTITUTION (1945 – 1949) and (1959 – now)

• REPUBLIC OF UNITED STATES OF INDONESIA CONSTITUTION (1949 – 1950)

• TEMPORARY CONSTITUTION (1950 – 1959)

FORMAL AMENDMENTS

• Took place a year after political revolution in 1998 (reform movement) > the resignation of former President Soeharto after 32 years in office

• Conducted by MPR (People’s Consultative Assembly) through MPR General Assembly in 1999, 2000, 2001 and 2000

• There were four amendments up to now (1999, 2000, 2001, and 2001)

• Additional articles, from 37 articles (1945) to 73 articles (2002)

Contents of Amendment

• First amendment 1999 > more on presidential roles, rights and powers

• Second amendment 2000> on regional autonomy, citizenship, human rights, defense and security issues

• Third amendment 2001> on Regional Representatives Council (DPD), General Election, Constitutional Court, Judicial Commission, Supreme Auditor Agency)

• Fourth amendment 2002 > abolishment of Supreme Advisory Council, cultural and educational issues, economy and social welfare, additional provisions and additional transitional provisions

• The People Consultative Assembly (MPR) insisted to keep the original name of the constitution as 1945 Constitution though it had been amended for four times (1999-2000-2001-2002)

WHAT REMAIN UNCHANGED

• Three things which remain unchanged from the entire amendment processes (1999 – 2002) are :

1. State’s Basic Foundation : PANCASILA (five pillars)

2. The original preamble of 1945 Constitution 3. Keeping the country as a United country not as a

federal or United of States, with the name of Negara Kesatuan Republik Indonesia (The Unitary State of Republic of Indonesia).

DEVELOPMENT OF HUMAN RIGHTS IN INDONESIA

• Indonesian Constitution of 1945 contains several articles on human rights (without addressing them as human rights articles)

• Inception of National Commission of Human Rights 1993 followed by several other human rights commissions for specific subjects

• Enactment of Human Rights Act 1999• Enactment of Human Rights Court Act 2000• 2nd Amendment of Indonesian Constitution 1945

which inserted special articles on human rights (Article 28)

DEVELOPMENT OF HUMAN RIGHTS IN INDONESIA

• Ratification of ICCPR and ICESCR 2005• Ratification of CAT 1998• Ratification of CEDAW 1984• Ratification of CRC 1990• Ratification of Convention on Migrant

Workers 2012etc

Remain Unratified :

• Rome Statute 1998 on the establishment of ICC

• Convention Relating to Status of Refugees 1951

• Reason? Sovereignty? Indonesia as transit country for refugees/ asylum seekers?

Human Rights Provision in Indonesian Constition 1945 before 2nd

Amendment in 2000• Article 27 Equality before the law and governance• Article 28 Freedom of expression, to gather and joint

any organization • Article 29 Freedom of worship, conscience and religion• Article 30 Rights and obligation to take part in state

defense• Article 31 Rights of education• Article 34 Rights of poor people and abandoned

children to be protected by the state

DISTINCTIVE HUMAN RIGHTS PROVISION IN CONSTITUTION 1945

AFTER 2nd AMENDMENT 2000• CHAPTER X A

Art. 28 A Right to LifeArt. 28 B (1)Right to form a family and entering into

marriage life legally(2)Children rights

Art. 28 CRight of EducationArt. 28 D(1)Rights of justice & equality before the law(2)Right to work(3)Equal rights before the governance(4)Rights to citizenship

Art. 28 E(1)Freedom of religion and worship, select the education, select the job, select the citizenship, select the place to stay, to leave and to return (freedom of movement)(2)Freedom of conscience(3)Freedom to gather, joint any organization and freedom of expression

• Art 28 FRight of communication and obtaining

informationArt 28 G(1)Right of security – invidual, family, dignity,

property & freedom from fear(2)Freedom from torture and other inhuman

and degrading treatment and punishment & right to apply for political asylum

• Art 28 H(1)Right for healthy environment and right of

health services(2)Right for special treatment and accessibility(3)Right for social security(4)Right of property

• Art 28 J(1)Obligation to respect other people’s human

rights(2)Obligation to comply to certain limitation

stipulated by the laws to assure recognition and respect other people’s rights and freedom and to fulfill the justice in regard to moral consideration, religious values, security and general order in a democratic society.

• Art 28 I(1)Certain underogable/ inalienable rights > right to life,

freedom of conscience, freedom from slavery, equality before the law, non-retroactive indictment

(2)Freedom from discrimination(3)Rights of identity and indigenous people rights(4)State obligation to : PROTECT-PROMOTE-ENFORCE-

FULFILL human rights(5)Enforment and protection of human rights are

compatible with the principles of democratic legal state and embodied in statutory

Sources of Human Rights Provisions in 2nd Amendment to Indonesian Constitution 1945

• UDHR 1948• International Covenant on Civil and Political

Rights (ICCPR) 1966• International Covenant on Economic Social

and Cultural Rights (ICESCR) 1966

Perspective on Human Rights by Indonesian MP

• “....The amendment of Indonesian Constitution 1945 by inserting special articles on human rights is not merely for accommodating global trend, but also as a prerequisite of a legal state, since human rights is perceived as an indicator in measuring the level of civilization, level of democracy and level of development of a state...” (A.M. Fatwa, 2009)

PROBLEM AND CHALLENGES

• Universality vs Cultural Relativism• Human Rights in Laws vs Human Rights in

Practices• Right to life (death sentence still applied)• Freedom of conscience, worship and religion(cases of religious minority groups, worship

places)

PROBLEM AND CHALLENGES (2)

• Right to marry legally (unregistered marriage is considered legal by some religion) > questioning ‘the legal’ term

• Children Protection (children is still allowed to get marry below 18 years old, children who were born outside wedlock still have civil relation with his biologic father > in contrary with some Islamic Scholars’ Point of View )

• Freedom of Expression (issue of Pornography)• Issue of LGBT

Human Rights

UNIVERSALITY

• Human rights apply to everyone with no exceptions

• Every individual has the right to enjoy human rights, wherever the individual resides

Perspective on Human Rights by Indonesian MP

“...The nation of Indonesia regards that human rights must take into account the Indonesian characteristic and a human rights must also be balanced with human obligation, in order to create mutual respect among people...”

(A.M. Fatwa, 2009)Member of Amendment Committee of Indonesian Constitution 1945

INDIVISIBILITY

• Refers to the necessity that governments and individuals recognize each human rights and not selectively promote some rights over others

Distinctions made by Cairo Declaration 1990 (1)

Article 1(b) All human beings are Allah’s subjects, and the most loved by

him are those who are most useful to the rest of His subjects, and no one has superiority over another except on the basis of piety and good deeds.

Article 2 (a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shari’ah-prescribed reason.

Distinctions made by Cairo Declaration 1990 (2)

• Article 10 Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.

• Article 12 Every man shall have the right, within the framework of Shari’ah, to free movement and to select his place of residence whether inside or outside his country and, if persecuted, is entitled to seek asylum in another country. The country of refuge shall ensure his protection until he reaches safety, unless asylum is motivated by an act which Shari’ah regards as a crime.

Distinctions made by Cairo Declaration 1990 (3)

• Article 24 All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah.

DISTINCTION MADE BY ARAB CHARTER 1990 (2)

Article 10• The death penalty may be imposed only for

the most serious crimes and anyone sentenced to death shall have the right to seek pardon or commutation of the sentence.

(this provision derived from the practice of diyat in Islamic tradition)

PROBLEM IN CONSTRUCTING HUMAN RIGHTS

THE DRIVING FACTORS IN DEVELOPING HUMAN RIGHTS PROVISIONS IN INDONESIAN

CONSTITUTION 1945

SAME QUESTIONS APPLIED FOR CULTURAL RELATIVISM

CULTURAL RELATIVISM(Reichert, 2006)

• Refers to the notion that cultural traditions or norms have priority when a particular human rights conflicts with those tradition or norms.

• A view that all cultures are equal and universal values become secondary when examining cultural norms. No outside value is superior to that of local culture.

EXAMPLE : ASIAN VALUES, ASEAN CHARTER AND HUMAN RIGHTS

(Thilo Rensmann, 2009)• ASEAN Charter, signed in Singapore in

November 2007. Entered into force on 15 December 2008 after having been ratified by 10 member states.

• In the architecture of ASEAN Charter the principles of sovereignty and non-interference feature more prominently than the commitment to human rights, democracy and the rule of law.

EXAMPLE : ASIAN VALUES, ASEAN CHARTER AND HUMAN RIGHTS

(Thilo Rensmann, 2009)• Respect for independence, sovereignty and

national identity are the first of fundamental principles set forth in Article 2 ASEAN Charter

• Adherence to the rule of law, democracy and human rights are relegated to the 8th and 9th principles.

UNIVERSALITY VS CULTURAL RELATIVISM

CONCLUSION

• human rights is also a politically constructed concept : who define, who get benefit, who lose, whose voices are heard, whose voices are silenced.

• Developing and mainstreaming human rights into national law are not simply a regular legislation process, yet there are driving forces both internal and external factors : social, political, economy, ideology, security matters, etc.

CONCLUSION (2)

• Cultural relativism does exist in human rights practices

• Principle of universality of human rights will always become a challenge when it comes to practice in different countries

• UDHR 1948, ICCPR, ICESCR are among the main sources of human rights provisions in Indonesian Constitution 1945, However when it comes into practice, things are different

• Thank you so much • Terima kasih banyak• Khob khun mak mak khrap

• @herususetyo• hsusetyo@ui.ac.id/ heru.susetyo@live.com• http://herususetyo.com