Human Rights Protection and Constitutional Review in Indonesia (Chapter II)

IV. Human Rights Protections

A number of Declarations recognized as International Bill of Human Rights including other international treaties, have primary aim to protect the human rights. However, they shall be binding only on those States which have become parties to the treaties (pacta tertis nec nocent nec prosunt). It is indeed commendable that Indonesia not only has become a party to a number of human rights conventions but also has implemented them by distinct legislations. Thus, all the human rights provisions stated in the Conventions shall be binding on Indonesian government.
In this context, human rights carry with them four correlative duties owed by the State, namely:[23]

1. The duty to promote, which requires raising public awareness as to the right and procedures for asserting and protecting the right, and
2. The duty to respect, which requires refraining from interfering with the enjoyment of the right;
3. The duty to protect, which requires the prevention of violations of such rights by authorities of the state as well by third parties;
4. The duty to fulfill, which requires the state to take appropriate measures towards the full realization of the right.

These duties has been acknowledged as constitutional obligation for Indonesian government based on Article 28I (4) of 1945 Constitution. The article reads as follow:

“The protection, advancement, upholding and fulfilment of human rights are the responsibility of the state, especially the government.”

Principally, there are two basic approaches to working on human rights at national level; first is the reactive approach and second is the proactive approach. Both the approaches are complementary and reinforce one another wherein the reactive approach focuses on violations and the proactive approach focuses on prevention of violations and on securing the realization on human rights. One of the aspects of a preventive approach can be contributed by strengthening the mechanism for the protection of human rights such as national human rights commissions, ombudsperson, the media and the judiciary.

The latest will be the main feature of our discussion due to the recent judicial trend of the Indonesian Courts. Particularly Constitutional Court is quite enthusiastic in using the 1945 Constitution as a tool of social transformation in promoting human rights protection. Through constitutional review mechanism, people who suffer because their fundamental rights have been violated can petition the Court. Furthermore, constitutional review enhances the protection of important individual rights enshrined in the Constitution, such as right to education, right to development, freedom of person, speech, assembly and conscience, and the right against torture and arbitrary detention.[24]

Nonetheless, this mechanism has just been established for four years. Therefore it becomes more necessary for us to analyse deeply the system since too many Indonesian citizens are unaware of this new constitutional adjudication feature.

V. Constitutional Review System

Constitutional rights are meaningless if there is no machinery for their enforcements. The 2nd framers generations of 1945 Constitution were conscious about providing adequate provision for enforcement of fundamental rights provided in Chapter XA of the Constitution. Therefore, the Constitutional Court was established referred to Article 24C of 1945 Constitution as a protector and interpreter of the 1945 Constitution’s soul.

A. Constitutional Review Mechanism

The notion of this development lies from the doctrine of constitution as supreme law. One the Constitution is regarded as the supreme law of the land and the powers of all the other organs of government are considered as limited by its provisions, it follows that not only the legislature, but also the executive, and all administrative authorities, are equally limited by its provisions, so that any executive or administrative act which contravenes the provisions of the constitution must similarly, be void and the courts must invalidate them.[25]

1. Legal Standing: To achieve the notion, thus Constitutional Court was given the authority to hold trials to solve the so-called constitutional disputes. According to Article 51 of Act No. 24 of 2003 concerning Constitutional Court, the parties who believe that their constitutional rights and/or authorities are disadvantaged by the issuance of any act can be the applicant for constitutional review (legal standing), and they are:
   1). individuals, citizen of Indonesia;
   2). union of customary law community, provided that it is still alive and in line with the community development and the principles of the Unitary State of the Republic of Indonesia as regulated by law;
   3). public or private legal entities, or
   4). state institution.
2. Trial and Decision: After the petition has been registered, the Court will examine, conducts trial and decide cases in the Constitutional Court’s plenary session attended by nine Constitutional Justices. The cases shall be decided by the Court referring to the 1945 Constitution based on evidences and the justice’s discretion. The decision of the cases will be divided into three alternates:
   1). Application is denied: In cases where the applicant do not fulfil the requirements stated in Article 51;
   2). Application is granted: In cases where the application is reasonable (in material) and/or the disputed formulation of act does not fulfil the requirements of law formulation (in procedural);
   3). Application is rejected: In cases where the disputed act does not contravene against the 1945 Constitution. >>> If the application is granted, thus the material content of the sub-article, part of the act, and/or the whole act are not legally binding anymore at the time the verdict is declared. The decision of the Court also attains a permanent legal force once the decision is announced in a final plenary session open to the public.[26]
3. Number of Cases: From all of the cases that have been accepted and registered till December 31, 2007, the Constitutional Court has decided 174 cases or around 93.55% of the cases. Specifically on Constitutional Review cases, the Court has reviewed 63 Acts wherein four Acts have been declared void entirely and 19 Acts void partially. The result placed that every one out of four constitutional review cases have been declared unconstitutional.

As of late 2007, barely three years after its establishment, the Constitutional Court has decided 33 out of 133 cases of constitutional review, with the verdict that the laws reviewed were unconstitutional. Most of these cases concerned violation of human rights guaranteed under the Constitution, for instance, unconstitutionality has been declared in several following Acts:

• Act No. 1 of 1946 juncto Act No. 73 of 1958 concerning Criminal Penal Code;
• Act No. 22 of 2001 concerning Oil and Gas;
• Act No. 20 of 2002 concerning Electricity Power;
• Act No. 20 of 2003 concerning National Educational System;
• Act No. 27 of 2004 concerning Truth and Reconciliation Commission;
• Act No. 40 of 2004 concerning National Social Security;
• Act No. 39 of 2004 concerning Placement and Protection of Indonesian Workers Abroad;
• Act No. 18 of 2006 concerning State Budget 2007.

(Fig. 2 Can't be Shown here)

Statistic of Constitutional Review cases in Indonesia 2003-2007

- Total Cases: 133
- Total Acts: 67

Constitutional:
- 100 Cases (75%)
- 44 Acts (70%)
Unconstitutional
33 Cases (25%) and 23 Acts (30%):
- 4 Acts Void Entirely
- 19 Acts Void Partially

B. Constitutional Complaint

From an overview of reviewed cases, we can say that constitutional review is conducive to the improvement of human rights protection and the concept of development by law. Nonetheless, when we deeply analyse we find the constitutional gap with this constitutional review mechanism. Both the 1945 Constitution and Constitutional Court Act are silent on the constitutional review apart from the Acts. The system merely allows the review of Act against 1945 Constitution not the review of other types of legislations. Meanwhile, the Indonesian Supreme Court only has authority to review ordinances and regulations made under the Acts against the Act itself.[27] Consequently, all government actions and government regulations believed to violate the provisions on human rights contained in the Constitution cannot be reviewed comprehensively either by the Constitutional Court or the Supreme Court.

According to Christopher F. Zurn in his Book entitled “Deliberative Democracy and the Institutions of Judicial Review”, Constitutional Court should be specialized not only in the function of constitutional review but also be the exclusive court for deciding constitutional complaints. From the particular proceduralist conception of deliberative democratic constitutionalism, he suggest that one of six core jurisdictional areas in which a constitutional court should ideally play the role of a protector of legitimacy-guaranteeing constitutional rules is review of any others legal norms despite the Act such as regulations or directives issuing from agencies with properly delegated powers.[28]

An example that illustrates this ideal mechanism is Article 93(1) (no. 4a) of Basic Law of the Federal Republic of Germany (Auslegungshilfe), which provides that a “constitutional complaint” (Verfassungsbeschwerde) can be raised by anyone on the ground that his or her fundamental rights qua rights, listed in the first part of the Basic Law under the heading “Grundrechte”, or right contained in Articles 20(4), 33, 38, 101, 103, and 104, have been infringed by a public authority.[29]

From 1952 to 2005, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) had disposed of an astounding 149,442 cases, 96.2 percent of which were constitutional complaints. Individual citizens in particular have relied heavily on the Court for vindication of rights that the state has allegedly violated. Nevertheless, roughly, only some 2.5 per cent of all constitutional complaints are accepted by a full senate, and these cases make up the bulk of the FCC’s published opinion.[30] Moreover, the establishment of the European Court of Human Rights as one of regional protection on human right elements has brought the double protection for its citizens, national and at European level.

The constitutional complaint system has also been recognized in many other non-European countries. In Asia, Korean Constitutional Court has adopted constitutional complaint mechanism as enacted in Article 111 § 1, cl. 5 of Korean Constitution. Article 68 Section 1 of the Korean Constitutional Court Act says that a person who has had his constitutional rights infringed by any act or omission of public authority, “except for a court's decision,” can lodge a constitutional complaint to the Korean Constitutional Court. Like the elements in Germany, the complaint should have exhausted other available judicial remedies. The period of claim, when the complainant can apply for the complaint, is restricted to a short period in the interest of legal stability. The period is sixty days in Korea and one month in Germany after knowing of the infringement.[31]

Thus, in order to seek judicial remedies for human rights and an efficient remedy the defects in the system and current legislation as well as to safeguards human rights completely, constitutional review system in Indonesia have to be improved by giving some new features in the following manners:

1. The constitutional review system should be allowed to review the constitutionality of all type of legislation;
2. The mechanism of constitutional review should be modified into the form of centralized whereby judicial review of a constitution is exercised by a single judicial organ, preferably by Constitutional Court; and
3. Constitutional complaints should be added as another authority of Constitutional Court. The complaint can be lodged by an individual toward their constitutional rights.
   Using three additional features of constitutional review mentioned above, we can promote the human rights protection of the people much better than before as the basic foundation of sustainable development in Indonesia.

VI. Conclusions

Making sense of Human rights protection in environmental, economic and social values is dreadfully important in building people’s development. The accomplishment of basic rights automatically will also bring the people to hold up the concept of sustainable development.

We are aware that Indonesia as a developing country has a long way to go to promote and protect human rights completely. Although the Vienna Declaration and Programme of Action reaffirms that the promotion and protection is the first responsibility of Government, however, the active participation of civil society acting in concert is vital to ensuring rule of law and the realisation of human rights.

Indonesian Civil society can use the latest innovation of constitutional review mechanism in order to ensure the guarantee of constitutional rights and in promoting fundamental rights protection. With the practice of constitutional review, people will realize the importance of the fundamental rights and will lead to the implementation of sustainable development gradually. The declaration of Human Rights Charter in Southeast Asia is a progressive step towards promotion of human rights in the region as well.

To sum up, respecting right to development is a responsibility we each owe to current and future generations in Indonesia. The human rights protection of citizens, therefore, shall be recognized as the basic foundation to establish sustainable development in Indonesia.

***

___________________

(*) Pan Mohamad Faiz 

 

Acknowledgment:

This paper is prepared for the International Students’ Scientific Meeting 2008 in Delft University of Technology, Delft, The Netherlands on 13-15 May 2008 organized by The Institute for Science and Technology Studies (ISTECS) and Indonesian Student Association in the Netherlands.

The writer would like to express his gratitude to Prof. Jimly Asshiddiqe, the Chief Justice of the Constitutional Court of the Republic of Indonesia, who encourages the writer all the way in completing the paper. The writer also gratefully acknowledges Professor J.L. Kaul, Professor of Law in International Human Rights and Constitutional Law at University of Delhi, for his useful comments on a previous draft of this paper.

* The write is a postgraduate student in Comparative Constitutional Law at Faculty of Law, University of Delhi. He is the President of Indonesian Students Association in India.

End Notes:

[1] The Human Development Index Report of Indonesia 2007/2008 is available at http://hdrstats.undp.org/countries/country_fact_sheets/cty_fs_IDN.html, last accessed March 20th, 2008.
[2] See Danie Brand, ‘Introduction to socio-economic rights in the South African constitution’ in D. Brand and C Heyns (eds), Socio-economic Rights in South Africa, Pretoria University Law Press, Pretoria, 2005, pp. 38-39.
[3] World Commission on Environment and Development (WCED), Our Common Future, Oxford University Press, Oxford, 1987, p. 43.
[4] Dominic McGoldrick, “Sustainable Development and Human Rights: An Integrated Conception”, The International and Comparative Law Quarterly, Vol. 45, No. 4, Oct., 1996, pp. 2-7.
[5] Hendrik Keptein, “The Morals of Post-Modern Human Rights”, Indian Socio-Legal Journal, Vol. XIX, No. 2, 1993, p. 33.
[6] See J.L. Kaul, et al., “Globalization and Human Rights: Some Remarks” in S.C. Raina, et al. (eds), Law and Development: An Anthology of Topical Legal Studies, 2003, pp. 368-390.
[7] D.D. Basu, Comparative Constitutional Law, Prentice Hall of India, 1984; See also Robert Alexy, “Discourse Theory and Fundamental Rights” in Agustin José Menéndez and Erik Oddvor Eriksen (eds.), Arguing Fundamenal Rights, Springer, The Netherlands, 2006, pp. 17-22.
[8] Clarence Dias, “Understanding the UN Common Understanding on a Human Rights-Based Approach to Development Programming”, in C. Raj Kumar and DK. Srivastava, Human Rights and Development: Law, Policy and Governance, LexisNexis, Hong Kong, 2006, p. 318-321.
[9] See Art. 1 (1) Indonesian Act No. 39 of 1999 concerning Human Rights and Art. 1 (1) Indonesian Act No. 26 of 2000 concerning Human Rights Court.
[10] Clarence Dias, supra note. 8, p. 310.
[11] See Art. 24C of 1945 Constitution and Art. 10 of Act No. 24 of 2003 concerning the Constitutional Court of the Republic of Indonesia.
[12] Judicial review is usually employed in the context of judicial power of reviewing not only constitutional validity but also administrative action or decision. It is mostly not used by the countries that follow continental constitutional review system (Austrian model) wherein they set up the review systems separately. Hence, the term of judicial review will not be interchangeably used in this paper.
[13] Christopher F. Zurn, Deliberative Democracy & the Institutions of Judicial Review, Cambridge University Press, 2007. pp. 274-275.
[14] See J. Djordjevic, Constitutional Law, 15ff, 86ff, Beograd, 1982.
[15] D. Basu, Commentary on the Constitution of India, Vol. 1, 1955, p. 165.
[16] Pavle Nikolić, “Constitutional Review of Laws by Constitutional Courts and Democracy” in M.P. Singh (ed), Comparative Constitutional Law, V2:2:2 M9, LFF, India, 1998, pp. 29-42.
[17] H.O. Aggarwal, International Law and Human Rights, 13th Edition, Central Law Publication, 2006, p.735.
[18] These rights set forth in the Covenant are not absolute and are subject to certain limitations, for instance in order to protect national security, public order, public health or morals or the rights and freedom of others.
[19] See the Protocol 11 to the European Convention on Human Rights.
[20] H.O. Aggarwal, supra note 17, p. 859.
[21] ASEAN Charter was signed in Singapore on November 20th, 2007.
[22] The amendment of 1945 Constitution was done in four stages in 1999, 2000, 20001 and 2002. As a result, the original Constitution has grown from 16 Chapter to 21, from 37 articles to 73, from 49 clauses to 170 clauses. Another important thing elucidation of articles has been removed from the Constitution.
[23] The duties are both positive (relating to acts of commission) and negative (relating to acts of omission), and may be either individual or collective. See Clarence Dias, supra note. 8, pp. 318-319; and H.O. Aggarwal, supra note. 17, p. 914.
[24] Ziyad Motala and Cyril Ramaphosa, Constitutional Law: Analysis and Cases, Oxford University Press, 2002, p. 54.
[25] D. Basu, Commentary on the Constitution of India, Vol. 1, 1955, p. 165.
[26] See Jimly Asshiddiqie, Hukum Acara Pengujian Undang-Undang (Constitutional Review Procedure), Konstitusi Press, Jakarta, 2005.
[27] See Article 24A (1) of 1945 Constitution and Article 31A of Act No. 5 of 2004 concerning Supreme Court.
[28] Christopher F. Zurn, supra note 13, pp. 274-300.
[29] See Robet Alexy, supra note 7, pp. 15-16.
[30] Donald P. Kommers, “Germany: Balancing Rights and Duties” in Interpreting Constitutions: A Comparative Study, Oxford University Press, 2006, pp. 175-176. For updating the cases, see http:///www. Bverfg.de/cgi-bin/link.pl?entscheidungen.
[31] Jibong Lim, “A Comparative Study of the Constitutional Adjudication Systems of the U.S., Germany and Korea”, Tulsa Journal of Comparative. & International Law, Spring, 1999, pp. 150-153.

REFERENCES:

[1] The Constitution of The Republic of Indonesia.
[2] Indonesian Act No. 39 of 1999 concerning Human Rights.
[3] Indonesian Act No. 24 of 2003 concerning Constitutional Court.
[4] Indonesian Act No. 5 of 2004 concerning Supreme Court.
[5] Aggarwal, H.O., International Law and Human Rights, 13th Edition, Central Law Publication, 2006.
[6] Alexy, Robert, “Discourse Theory and Fundamental Rights” in Agustin José Menéndez and Erik Oddvor Eriksen (eds.), Arguing Fundamenal Rights, Springer, The Netherlands, pp. 15-29, 2006.
[7] Asshiddiqie, Jimly, Hukum Acara Pengujian Undang-Undang (Constitutional Review Procedure), Konstitusi Press, Jakarta, 2005.
[8] Asshiddiqie, Jimly, Pokok-Pokok Hukum Tata Negara Indonesia (Indonesian Constitutional Law Principles), PT. Bhuana Ilmu Populer, Jakarta, 2007.
[9] Basu, D.D., Comparative Constitutional Law, Prentice Hall of India, 1984.
[10] Brand, Danie, “Introduction to Socio-Economic Rights in the South African Constitution” in D. Brand and C Heyns (eds), Socio-Economic Rights in South Africa, Pretoria University Law Press, Pretoria, 2005.
[11] Dannemann, Gerhard, “Constitutional Complaints: The European Perspective”, The International and Comparative Law Quarterly, Vol. 43, No. 1, pp. 142-153, January, 1994.
[12] Dias, Clarence, “Understanding the UN Common Understanding on a Human Rights-Based Approach to Development Programming”, in C. Raj Kumar and DK. Srivastava, Human Rights and Development: Law, Policy and Governance, LexisNexis, Hong Kong, p. 309-323, 2006.
[13] Ginsburg, Judicial Review in New Democracies: Constitutional Courts in Asian Cases, Cambridge University Press, 2003.
[14] Goodland, Robert, “The Concept of Environmental Sustainability”, Annual Review of Ecology and Systematics, Vol. 26, pp. 1-24, 1995.
[15] Keptein, Hendrik, “The Morals of Post-Modern Human Rights”, Indian Socio-Legal Journal, Vol. XIX, No. 2, 1993.
[16] Kommers, Donald P., “Germany: Balancing Rights and Duties” in Interpreting Constitutions: A Comparative Study, Oxford University Press, pp. 161-213, 2006.
[17] Lim, Jibong, “A Comparative Study of the Constitutional Adjudication Systems of the U.S., Germany and Korea”, Tulsa Journal of Comparative. & International Law, pp. 123-162, Spring 1999.
[18] Limbach, Jutta, “The Concept of the Supremacy of the Constitution”, The Modern Law Review, Vol. 64, No. 1, pp. 1-10, January, 2001.
[19] McGoldrick, Dominic, “Sustainable Development and Human Rights: An Integrated Conception”, The International and Comparative Law Quarterly, Vol. 45, No. 4, pp. 796-818, Oct., 1996.
[20] Motala, Ziyad and Cyril Ramaphosa, Constitutional Law: Analysis and Cases, Oxford University Press, 2002.
[21] Musnlow, Barry and Patrick Fitzgerald, “South Africa: The Sustainable Development Challenge”, Third World Quarterly, Vol. 15, No. 2, pp. 227-242, June, 1994.
[22] Nikolić, Pavle, “Constitutional Review of Laws by Constitutional Courts and Democracy” in M.P. Singh (ed), Comparative Constitutional Law, V2:2:2 M9, LFF, India, pp. 29-42, 1998.
[23] World Commission on Environment and Development (WCED), Our Common Future, Oxford University Press, 1987.
[24] Yang, Kun, “Judicial Review and Social Change in the Korean Democratizing Process”, The American Journal of Comparative Law, Vol. 41, No. 1, pp. 1-8, Winter, 1993.
[25] Zurn, Christopher F., Deliberative Democracy & the Institutions of Judicial Review, Cambridge University Press, 2007.