HUMAN RIGHTS PROTECTION AND CONSTITUTIONAL REVIEW IN INDONESIA:
A Basic Foundation of Sustainable Development in Indonesia
Abstrack:
Many people strongly believe that rising the challenge of sustainable development can help the country go forward in a better direction. One of the best approaches for promoting the sustainable development of Indonesia can be viewed from the perspective of human rights protection of the people. Basically, sustainable development encompasses three pillars based on environmental, economic, and social values that are interdependent and that mutually reinforce human rights. Moreover between sustainable development and human rights there is an inseparable relationship and a respect for human rights that has been recognized as a prerequisite for development. In this context, the current paper seeks to present an integrated conception and the relationship between these two formations. The paper also presents the measures of human rights protection, particularly constitutional review mechanism before the Court as the newest instrument established after the amendment of 1945 Constitution.
Index Term: Constitutional Complaint, Constitutional Review, Human Rights, Indonesia, Sustainable Development
Index Term: Constitutional Complaint, Constitutional Review, Human Rights, Indonesia, Sustainable Development
I. Introduction
According to the Human Development Report 2007, launched by the United Nation Development Program, the Human Development Index (HDI) for Indonesia is 0.728, giving the country a ranking of 107th out of 177 countries, and 7th among the Southeast Asian countries.[1]
One of the most significant reasons for this situation is the drawbacks caused by sustainable development in Indonesia. At the heart of the problem, therefore, people are trying to find solution how to deal with promoting the sustainable development of Indonesia. In my opinion, an alternative approaches can be viewed from the perspective of human rights protection for the people.
This approach comes from the following reasons: First, sustainable development encompasses three pillars based on environmental, economic, and social values that are interdependent and that mutually reinforce human rights; Second, between sustainable development and human rights there is an inseparable relationship and a respect for human rights that has been recognized as a prerequisite for development, particularly on the right to development.
To understand it simply, for instance, the ability to participate in sustainable development is hindered when fundamental human rights are threatened by a lack of food, health, education, shelter, freedom of expression and the right to political participation. In other words, without respect for human rights, the ability of people to move toward a sustainable future will be hindered.
Furthermore, development is unsustainable where the rules of law and equity do not exist; where ethnic, religious or sexual discrimination is rampant; where there are restrictions on free speech, free association, and on the media; or where large numbers of people live in abject and degrading poverty.
The Constitution of Indonesia has clearly provided provisions of human rights protection under Chapter XA as the fundamental rights of citizens. The legal system of Indonesia is based on basic premise of supremacy of the Constitution whereby the Constitution is given the highest authority. Consequently, the protection of human rights becomes imperative as a prerequisite for development. Then the question arises, what mechanism can protect human rights as constitutional rights of citizens? According to Danie Brand, a concrete way to deal with human rights protection is to challenge the state and constitutional issues through the courts.[2] The constitutional review before the Constitutional Court can be one of the best mechanism in this context.
According to the Human Development Report 2007, launched by the United Nation Development Program, the Human Development Index (HDI) for Indonesia is 0.728, giving the country a ranking of 107th out of 177 countries, and 7th among the Southeast Asian countries.[1]
One of the most significant reasons for this situation is the drawbacks caused by sustainable development in Indonesia. At the heart of the problem, therefore, people are trying to find solution how to deal with promoting the sustainable development of Indonesia. In my opinion, an alternative approaches can be viewed from the perspective of human rights protection for the people.
This approach comes from the following reasons: First, sustainable development encompasses three pillars based on environmental, economic, and social values that are interdependent and that mutually reinforce human rights; Second, between sustainable development and human rights there is an inseparable relationship and a respect for human rights that has been recognized as a prerequisite for development, particularly on the right to development.
To understand it simply, for instance, the ability to participate in sustainable development is hindered when fundamental human rights are threatened by a lack of food, health, education, shelter, freedom of expression and the right to political participation. In other words, without respect for human rights, the ability of people to move toward a sustainable future will be hindered.
Furthermore, development is unsustainable where the rules of law and equity do not exist; where ethnic, religious or sexual discrimination is rampant; where there are restrictions on free speech, free association, and on the media; or where large numbers of people live in abject and degrading poverty.
The Constitution of Indonesia has clearly provided provisions of human rights protection under Chapter XA as the fundamental rights of citizens. The legal system of Indonesia is based on basic premise of supremacy of the Constitution whereby the Constitution is given the highest authority. Consequently, the protection of human rights becomes imperative as a prerequisite for development. Then the question arises, what mechanism can protect human rights as constitutional rights of citizens? According to Danie Brand, a concrete way to deal with human rights protection is to challenge the state and constitutional issues through the courts.[2] The constitutional review before the Constitutional Court can be one of the best mechanism in this context.
II. General Conception
Before going into the main part of this paper and its analysis, let us observe the meaning of some related terminologies in this paper in order to get a common understanding about the conceptions that we are going to discuss.
Before going into the main part of this paper and its analysis, let us observe the meaning of some related terminologies in this paper in order to get a common understanding about the conceptions that we are going to discuss.
A. Sustainable Development
The meaning of sustainable development has been defined in various ways, but this expression generally dates back to Report of the World Commission on Environment and Development (WCED), Our Common Future (the Brundtland Report) of 1987. Its understanding is the most frequently adopted by many people and institutions.[3]
The meaning of sustainable development has been defined in various ways, but this expression generally dates back to Report of the World Commission on Environment and Development (WCED), Our Common Future (the Brundtland Report) of 1987. Its understanding is the most frequently adopted by many people and institutions.[3]
“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts
- the concept of needs, in particular the essential needs of the world's poor, to which overriding priority should be given; and
- the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs.”
(Figure 1 Can't be Shown here)
Sustainable Development Pillars based on International law framework.
Sustainable Development
Int'l Human Rights Law (Pillar 2)
Int'l Economic Law (Pillar 1)
Int'l Environmental Law (Pillar 3)
B. Human Rights
Broadly speaking, human rights are those fundamental rights to which every man inhabiting any part of the world entitled by virtue of having been born a human being, because these rights are required for the full and complete development of human personality.[5] Over these years, however, even entitlements to socio-economic demands are also clubbed with human rights.[6]
Human rights are institutionalized by means of their transformation into positive law. When human rights are guaranteed by a written Constitution, they become unenforceable fundamental rights. The foundation of fundamental rights is essentially a foundation for judicially enforcing human rights.[7]
Before examining the human rights protection chapter of this paper, it is pertinent to observe Clarence Dias’ notions on the characteristics, principles and the human right based-approach in order to build a common understanding about human rights.[8]
Broadly speaking, human rights are those fundamental rights to which every man inhabiting any part of the world entitled by virtue of having been born a human being, because these rights are required for the full and complete development of human personality.[5] Over these years, however, even entitlements to socio-economic demands are also clubbed with human rights.[6]
Human rights are institutionalized by means of their transformation into positive law. When human rights are guaranteed by a written Constitution, they become unenforceable fundamental rights. The foundation of fundamental rights is essentially a foundation for judicially enforcing human rights.[7]
Before examining the human rights protection chapter of this paper, it is pertinent to observe Clarence Dias’ notions on the characteristics, principles and the human right based-approach in order to build a common understanding about human rights.[8]
- Characteristic: Human rights are universal, indivisible, inalienable, interdependent and interrelated. Human rights are ‘universal’ and ‘inalienable’, thus across centuries, across civilization, across religions, human rights have existed for all human beings and for all peoples. Human rights are ‘interdependent’ and ‘interrelated’, thus the right to food is related to the right to work, the right to health, the right to social services, and most importantly, the rights of women. Certain rights such as freedom from discrimination are crosscutting and intimately related to the enjoyment of several other human rights. However, the ‘indivisibility’ of priorities and inter-relatedness of human rights do not preclude the setting of priorities in human rights programming.
- Principles: Three human rights principles are of special relevance to development assistance. Firstly, ‘participation’. The Declaration on the Right to Development elaborates as being free, active and meaningful. It further clarifies that participation is both an interdependent means and end of development; Secondly, ‘non-discrimination’. The Declaration also stresses the principle of non-discrimination and equitable sharing in the benefit of development; Thirdly, ‘rule of law’. This principle is of considerable relevance to governance programming. It stresses that no one is above the law. All persons are entitled to the equal protection of laws. It also states that for every right, there must be a remedy, and therefore, the right to a timely and effective remedy provides a challenge for programming in the sectors of legal and justice sector reform.
- Human Rights Based-Approach: A human rights-based approach is founded on the conviction that each and every human being, by virtue of being human, is a holder of rights. A human right entails an obligation on the part of government to respect, promote, protect and fulfil such a right. The legal and normative character of human rights and the associated governmental obligations are based on international human rights treaties and other standards, as well as on national constitutional human rights provisions and laws.
“a set of rights bestowed by God Almighty in the essence and being of humans as creations of God which must be respected, held in the highest esteem and protected by the state, law, Government, and all people in order to respect and protect human dignity and worth”.[9]
Based on the above explanation, those existential rights, which are essentially a manifestation of human dignity, provide the nucleus around which a number of other rights have been created, such as: freedom rights to several freedoms (e.g. freedom of speech, conscience, religion, assembly and association); equality rights (equality before the law and equal protection of the law, protection against discrimination on the grounds of sex, race, colour, religion, ethnic, or social origin, etc.).
Other rights are political rights (right to vote, equal access to public service, freedom to form a political party, right to petition, etc.); rights of economic life (right to own property, freedom of movement, right to work and free choice of employment, freedom of provide services); collective rights (the right of people to self-determination, protection of minorities and indigenous peoples, rights to development, etc.), procedural rights (especially for administration of criminal justice); or specific rights for children, the elderly, the sick, the disable, aliens, asylum seekers as well as for other vulnerable groups.
(TABLE I Can't be Shown here)
Human Rights Terminology
Human Rights (International Law) <---> Fundamental Rights (National Law)
Human Rights (to everyone) <---> Citizen’s Rights (for citizens)
Human rights (individual rights) <---> People’s rights (collective rights)
Human Rights (International Law) <---> Fundamental Rights (National Law)
Human Rights (to everyone) <---> Citizen’s Rights (for citizens)
Human rights (individual rights) <---> People’s rights (collective rights)
C. Correlation between Development and Human Rights
As explained above that sustainable development and human right to development has an inseparable relationship. Therefore the correlation between development and human rights ought to be one of obvious complementarities as well. Both human rights and development promote, and indeed are essential to, human well-being.
In many United Nation Declarations, the right to development has been frequently mentioned and further elaborated, for instance at the UN World Conference on Human Rights, 1993 (Vienna), the International Conference on Population and Development, 1994 (Cairo), the World Summit on Social Development, 1995 (Copenhagen) and the Fourth World Conference on Women (Beijing). Therefore, the right to development is a human rights undoubtedly guaranteed by international law.
All these Declaration have made three major contributions to the relationship between development and human rights, namely:[10]
D. Constitutional Review
In recent history, the concept of a constitutional adjudication has become a consistent feature of democratic governance, particularly in Europe. At present, however, this no longer applies only to Europe. Other countries across other continents have also incorporated this feature. One of the remarkable constitutional innovations of the amendment of the Constitution of the Republic of Indonesian (hereinafter called as 1945 Constitution) is the creation of the Constitutional Court which has a power of constitutional adjudication or it is referred as “constitutional review”.
In the context of fundamental protection, the power of constitutional adjudication by reviewing laws against the Constitution, known as a “Constitutional Review”, is the core of the jurisdiction of the Indonesian Constitutional Court.
Along these lines, seen in its entirety, the constitutional review of laws by constitutional courts appears in a modern democratic state like Indonesia as an efficient and appropriate instrument for the protection of the constitutional rights and thereby also of freedoms and rights of man and the citizen and democratic relations in general. This opens the prospect of further world expansion of constitutional review of laws exerted by constitutional courts.[16]
As explained above that sustainable development and human right to development has an inseparable relationship. Therefore the correlation between development and human rights ought to be one of obvious complementarities as well. Both human rights and development promote, and indeed are essential to, human well-being.
In many United Nation Declarations, the right to development has been frequently mentioned and further elaborated, for instance at the UN World Conference on Human Rights, 1993 (Vienna), the International Conference on Population and Development, 1994 (Cairo), the World Summit on Social Development, 1995 (Copenhagen) and the Fourth World Conference on Women (Beijing). Therefore, the right to development is a human rights undoubtedly guaranteed by international law.
All these Declaration have made three major contributions to the relationship between development and human rights, namely:[10]
- Provided a normative redefinition of the very concept and rationale of development. It defined “development” as, a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals, in which all human rights and fundamental freedoms can be fully realized;
- Affirmed that development is an inalienable human right of every human person and all peoples;
- Prescribed certain normative principles about how development is to be undertaken. The development process was to be one which assured to every person and to all peoples active, free and meaningful participation in development and the right to fair distribution of the benefits from development.
D. Constitutional Review
In recent history, the concept of a constitutional adjudication has become a consistent feature of democratic governance, particularly in Europe. At present, however, this no longer applies only to Europe. Other countries across other continents have also incorporated this feature. One of the remarkable constitutional innovations of the amendment of the Constitution of the Republic of Indonesian (hereinafter called as 1945 Constitution) is the creation of the Constitutional Court which has a power of constitutional adjudication or it is referred as “constitutional review”.
- Constitutional Court: The Court is an independent organ in relation to parliament, and even more, in relation to the executive. It is separate (and different) and independent of the regular judicature. The functions of regular courts (Supreme Court) and of Constitutional Court are different and do not coincide, though they complement each other in a determined way.
The constitutional court is a specialized court of constitutional adjudication organized apart from and independent of the regular judicial establishment. Powered by Article 24C of the 1945 Constitution, the Court is authorised to hold trials at the first stage and final stage and will produce final decisions on the following:[11]
1). review of laws against the 1945 Constitution;
2). dispute settlement over the powers of state institutions whose authorities are mandated by the 1945 Constitution;
3). dissolution of political parties;
4). disputes on the results of general election; and
5.) obligated to decide upon House of Representatives’ opinion in the case of impeachment based on the reasons stipulated in Article 7 of the 1945 Constitution. - Constitutional Review: The device of constitutional review is a salient characteristic of great number of modern constitutions. The decisive impact on the development of constitutional review was established in the famous Marbury v. Madison Case (1803), in which the Supreme Court of America arrogated the power of judicial review[12] concerned with the conformity of statutes with the Constitution. It is basically akin to the institution proposed by Hans Kelsen in the 1920s and enacted in the Austrian Constitution of 1929, and widely adopted with many variations in European countries after the end of World War II.[13]
In the context of fundamental protection, the power of constitutional adjudication by reviewing laws against the Constitution, known as a “Constitutional Review”, is the core of the jurisdiction of the Indonesian Constitutional Court.
Along these lines, seen in its entirety, the constitutional review of laws by constitutional courts appears in a modern democratic state like Indonesia as an efficient and appropriate instrument for the protection of the constitutional rights and thereby also of freedoms and rights of man and the citizen and democratic relations in general. This opens the prospect of further world expansion of constitutional review of laws exerted by constitutional courts.[16]
III. Human Rights Guarantees
When government do an act injuring their citizen either physically or non-physically, we are likely to describe those actions as violation of human rights. Appealing to human rights in order to describe and criticize the human rights violation has long been common not only among philosopher and lawyers but also activist, journalist, politicians and the public in many parts of the world. Talk of international human rights and constitutional rights has become common as a popular phenomenon nowadays.
In order to correctly evaluate the situation of the protection of human rights in Indonesia, we must first go deep into the various international documents that give guarantee of human rights. Moreover, we should also connect those documents with the provision of human rights protection stated in 1945 Constitution and our national laws.
A. International Bill of the Human Rights
The international Bill of the Human Rights comprises of the following:
The Declaration of the Vienna Conference on Human Rights in 1993 stated that regional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standards, as contained in international human rights instruments, and their protection. According to Aggarwal, the regional bases are likely to help the promotion of human rights in more effective manner than to machinery of the United Nations which is already very complex and over-burdened.
In this part we will address the human rights protection enshrined in 1945 Constitution as Constitutional guarantees of the citizens.
Prior to the Constitutional amendment in 2000, Indonesian Constitution only had one article directly related with human rights provision which is Article 28. But the current Indonesian Constitution bears the imprint of the Universal Declaration of Human Rights as well as others International Bill of the Human Rights provisions.[22] These provisions have been incorporated in Chapter XA entitled “Human Rights” following the 2nd amendment of 1945 Constitution by the People’s Consultative Assembly of Indonesia.
The second founding fathers of the 1945 Constitution were influenced by the concept of human rights and guaranteed most of human rights provisions contained in the Human Rights Declaration and Conventions. The Constitution provides number of rights to citizens in Chapter XA which have been termed as ‘fundamental rights’. The expression ‘fundamental’ denotes that these rights are inherent in all the human beings and are essential for the individuals for blossoming of the human personality and soul.
The following table is being given below to indicate the human rights provisions which have been incorporated in 1945 Constitution.
However, there are certain rights which are contained in the international human rights instruments but have not been expressly mentioned in the Constitution. These rights are related with the imprisonment, trial, alien’s rights and the implementation of compulsory education free of charge, and many others. Nonetheless, it would not be correct to contend that the above rights are not recognized in national human right protections atmosphere, though they do not find express mention in the 1945 Constitution, these right has been placed in various national laws in Indonesia.
Several Indonesian regulations that have relevancy with human rights protection issue are:
When government do an act injuring their citizen either physically or non-physically, we are likely to describe those actions as violation of human rights. Appealing to human rights in order to describe and criticize the human rights violation has long been common not only among philosopher and lawyers but also activist, journalist, politicians and the public in many parts of the world. Talk of international human rights and constitutional rights has become common as a popular phenomenon nowadays.
In order to correctly evaluate the situation of the protection of human rights in Indonesia, we must first go deep into the various international documents that give guarantee of human rights. Moreover, we should also connect those documents with the provision of human rights protection stated in 1945 Constitution and our national laws.
A. International Bill of the Human Rights
The international Bill of the Human Rights comprises of the following:
- The Universal Declaration of Human Rights, 1945: The Declaration enumerated the basic postulates and principles of human rights in a most comprehensive manner. It dealt not only with civil and political rights, but with social and economic rights as well. Articles 2 to 21 deal with those civil and political rights which have been generally recognised throughout the world. Meanwhile, articles 22 to 27 of the Declaration deal with the economic and social rights.
The Declaration has exercised a profound influence upon the enunciation of people. It is primary proclamation of the international community’s commitment to human rights as a common standard of achievement for all peoples and for all nations. Its message is one of hope, equality, liberation and empowerment. It is a message to all who are committed to freedom, justice and peace in the World.[17] - The International Covenant on Civil and Political Rights, 1966: The Covenant (ICCPR) consists of 53 Articles and it is divided into six parts. While Parts I, II and III various rights and freedoms are enumerated, the other parts are devoted with implementation procedures for effective realisation of these rights along with the final clauses. Articles 6 to 27 Part III of the Covenant enumerated specific substantive and civil and political rights.[18]
- The Covenant of Economic, Social and Cultural Rights, 1966: The Covenant (ECOSOC) is consisted of 31 Articles which are divided in five parts. Part I deals with the rights of peoples to self-determination as provided in Article I of the ICCPR. Other rights of the individuals are enumerated in Part III of the Covenant
- The Optional Protocol to the International Covenant on Civil and Political Rights, 1966 and The Optional Protocol to the International Covenant on Civil and Political Rights Aiming at the Abolition of Death Penalty, 1989: The purpose of adopting the Optional Protocol has been made clear in the Preamble. The Preamble to the Optional Protocol states that “considering” that in order further to achieve the purpose of the Covenant on Civil and Political Rights and the implementation of its provision it would be appropriate to enable the Human Rights Committee set up in Part IV of the Covenant to receive and consider as provided in the present Protocol, communications from individual claiming to be the victims of violations of any of the rights set forth in the Covenant.
- The International Convention on Elimination of Discrimination against Women/CEDAW (ratified by Act No. 7 of 1984);
- The International Convention on the Rights of the Child/CRC (ratified by Presidential Decree No. 36 of 1990);
- The International Convention against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment/CAT (ratified by Act No. 5 of 1998);
- The International Convention on the Elimination of All Forms of Racial Discrimination/ICERD (ratified by Act No. 29 of 1999).
The Declaration of the Vienna Conference on Human Rights in 1993 stated that regional arrangements play a fundamental role in promoting and protecting human rights. They should reinforce universal human rights standards, as contained in international human rights instruments, and their protection. According to Aggarwal, the regional bases are likely to help the promotion of human rights in more effective manner than to machinery of the United Nations which is already very complex and over-burdened.
- European Convention on Human Rights: The European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter referred as ECHR) was signed at Rome on November, 1950 to protect fundamental freedoms and human rights concerned with civil and political rights. It is still the only international human rights agreement providing such a high degree of individual protection whereby any person who feels his right have been violated under the Convention by a state party can take a case to the European Court of Human Rights. The decisions of the Court are legally binding and the Court has the power to award damages.[19]
In addition, European Social Charter is adopted by the Council of Europe with a view to develop and protect social and economic rights and to achieve greater unity between its members for the purpose of safeguarding and realizing the ideals and principles which are their common heritage. The Charter protects rights such as to work, to just conditions of work, to safe and healthy working conditions, to freedom of association, to social security, to benefit from social welfare services etc. - The American Convention on Human Rights: The American Convention was adopted at the Inter-American Specialized Conference on Human Rights in 1969 known as ‘Pact of San Jose de Costa Rica’. The Preamble of the Convention state that the essential rights of man are not derived from one’s being a national of certain State, but are based upon attributes of the human personality, and they therefore, justify international protection in the form of a Convention reinforcing or implementing the protection provided by the domestic law of the American States. Beside the Convention, in American region there are also Inter-American Commission on Human Rights and Inter-American Court of Human Rights.
- African Charter on Human and People’s Rights: The African Charter, also known as Banjul Charter, was adopted on June 27, 1981 and entered into force on October 21, 1986. It is unique in the sense that it has given emphasis on ‘people’s rights’ which reflect African social tradition of collective and group life. The individual is not seen as independent of society and it is subordinated to the requirement of group which has rights as well and the individual has duties to the group.[20] Moreover, the Charter established an African Commission on Human and People’s Rights as well as African Court on Human and People’s Rights to promote human and people’s right and ensure their protection in Africa.
- Asian Human Rights Charter: Asian Human Rights Charter is a people’s charter. It was adopted in Kwangju, South Korea on May 17th, 1998 as part of an attempt to create a popular culture on human rights in Asia. The charter is presented to deepen the Asian debate on human rights, to present the people’s views on human rights as against those of some Asian leaders who claim that human rights are alien to Asia. Asian Human Right Commission has been established also to promote political, social and legal reforms for ensuring human rights in the countries of the region. In sub-regional of Asia, particularly in Southeast Asia where Indonesia is located, the leaders of the 10 Association of Southeast Asia Nations countries signed the first ever ASEAN Charter.[21] Based on Article 14 of the Charter, ASEAN will have separate human rights body. The article addresses human rights as follow:
ARTICLE 14: ASEAN HUMAN RIGHTS BODY1. In conformity with the purposes and principles of the ASEAN Charter relating to the promotion and protection of human rights and fundamental freedoms, ASEAN shall establish an ASEAN human rights body.
2. This ASEAN human rights body shall operate in accordance with the terms of reference to be determined by the ASEAN Foreign Ministers Meeting.
While any mention of human rights in the ASEAN charter can be read as progress, clearly the details of implementation remain to be filled in.
Through this fascinating development, the promotion and protection of human rights in Southeast Asia is expected to become the inter-regional human rights replica for whole part of Asia.
In this part we will address the human rights protection enshrined in 1945 Constitution as Constitutional guarantees of the citizens.
Prior to the Constitutional amendment in 2000, Indonesian Constitution only had one article directly related with human rights provision which is Article 28. But the current Indonesian Constitution bears the imprint of the Universal Declaration of Human Rights as well as others International Bill of the Human Rights provisions.[22] These provisions have been incorporated in Chapter XA entitled “Human Rights” following the 2nd amendment of 1945 Constitution by the People’s Consultative Assembly of Indonesia.
The second founding fathers of the 1945 Constitution were influenced by the concept of human rights and guaranteed most of human rights provisions contained in the Human Rights Declaration and Conventions. The Constitution provides number of rights to citizens in Chapter XA which have been termed as ‘fundamental rights’. The expression ‘fundamental’ denotes that these rights are inherent in all the human beings and are essential for the individuals for blossoming of the human personality and soul.
The following table is being given below to indicate the human rights provisions which have been incorporated in 1945 Constitution.
(TABLE III Can't be Shown here)
CCPR Vis-à-vis 1945 Constitution
Specific Rights <---> ICCPR <---> 1945 Constitution
- The right to life <---> Article 6 <---> Article 28I (1)
- Freedom from inhuman or degrading treatment <---> Article 7 <---> Article 28G (2)
- Freedom from slavery, servitude and forced labour <---> Article 8 <---> Article 28I (1) and Article 28D (2)
- Right to liberty and security <---> Article 9 <---> Article 28G (1) and 28I (1)
- Right of deprived to be treated with humanity <---> Article 10 <---> Article 28G (2)
- Freedom from imprisonment for inability to fulfil a contractual obligation <---> Article 11 <---> Doesn't have smiliar provision
- Freedom of movement and to choose his residence <---> Article 12 <---> Article 28E (1)
- Freedom of aliens from arbitrary expulsion <---> Article 13 <---> Doesen't have similar provision
- Right to a fair trial <---> Article 14 <---> Doesen't have similar provision
- Non-retroactive application of criminal law <---> Article 15 <---> Article 28I (1)
- Right to recognition as a person before the law <---> Article 16 <---> Article 28D (1)
- Right to privacy, family, home or correspondence <---> Article 17 <---> Article 28B (1), Article 28F & Article 28H
- Freedom of thought, conscience and religion <---> Article 18 <---> Article 28E (1), (2); Article 28I (1) and Article 29(2)
- Freedom of opinion and expression <---> Article 19 <---> Article 28 & Article 28E (3)
- Prohibition of propaganda of war <---> Article 20 <---> Doesn't have similiar provision
- Right of peaceful assembly <---> Article 21 <---> Article 28 and Article 28E (3)
- Freedom of association <---> Article 22 <---> Article 28 and Article 28E (3)
- Right to marry and found a family <---> Article 23 <---> Article 28B
- Rights of the child <---> Article 24 <---> Article 28B
- Right to take part in the conduct of public affairs, to vote and to be elected <---> Article 25 <---> Article 27(1) Article 28D (3)
- Equality before the law <---> Article 26 <---> Article 27(2) and Article 28D
- Rights of minorities <---> Article 27 <---> Article 28C
(TABLE IV Can't be Shown here)
Ecosoc Vis-à-vis 1945 Constitution
Specific Rights <---> ECOSOC <---> 1945 Constitution
Specific Rights <---> ECOSOC <---> 1945 Constitution
- Right to work <---> Article 6 <---> Article 27 (2) and Article 28D
- Right to just and favourable conditions of work <---> Article 7 <---> Article 27 (2)
- Right to form and join trade unions <---> Article 8 <---> Article 28 and Article 28F
- Right to social security <---> Article 9 <---> Article 28H (3)
- Right relating to motherhood, childhood, marriage and the family <---> Article 10 <---> Article 28B (1), (2) and Article 28G
- Right to adequate food, clothing, housing and standard of living and freedom from hunger <---> Article 11 <---> Article 27(2), Article 28A and Article 28H (1)
- Right to physical and mental <---> Article 12 <---> Article 28H
- Right to education including a plan for implementing compulsory primary education <---> Article 13 <---> Article 28C, Article 31(1) and (2)
- Undertaking to implement the principle of compulsory education free of charge <--->
Article 14 <---> Doesnt' have similar provision - Right relating to science and culture <---> Article 15 <---> Article 28C (1) and Article 31 (5)
However, there are certain rights which are contained in the international human rights instruments but have not been expressly mentioned in the Constitution. These rights are related with the imprisonment, trial, alien’s rights and the implementation of compulsory education free of charge, and many others. Nonetheless, it would not be correct to contend that the above rights are not recognized in national human right protections atmosphere, though they do not find express mention in the 1945 Constitution, these right has been placed in various national laws in Indonesia.
Several Indonesian regulations that have relevancy with human rights protection issue are:
- People’s Consultative Assembly Decision No. XVII of 1999 concerning Human Rights;
- Law No. 9 of 1998 concerning Freedom of Expression in Public Area;
- Law No. 8 of 1999 concerning Consumer Protection;
- Law No. 30 of 1999 concerning Human Rights;
- Law No. 26 of 2000 concerning Human Rights Court;
- Law No. 23 of 2002 concerning Children Protection;
- Law No. 23 of 2004 concerning The Elimination of Domestic Violence;
- Law No. 13 of 2006 concerning Protection of Witness and Victim;
- Presidential Regulation No. 65 of 2005 concerning National Commission of Anti-Domestic Violence;
- Presidential Decree No. 40 of 2004 concerning National Plan Action of Human Rights 2004-2009.
___________________
(*) Pan Mohamad Faiz
Has an M.C.L. from the law faculty at the University of Delhi in India. He currently works at Indonesia's Constitutional Court.
