Indonesian National Human Rights Law – Types, Institutions, and Implementation
In the history of human development, it shows that the emergence of the conception of human rights can not be separated from the reaction of the absolute power. Then, its eventually led to the constitutional system and the concept of law state and the rule of law. As proposed by Louis XIV, with the expression “Country is the power that is concentrated in one hand raises abuses, as indicated by philosopher.
There are power tends to corrupt and absolute power corrupt absolutely”. The two concepts that born the rule of law is a struggle against absolutism that evolve into revolutionary. It looks good from the content and criteria of rule of law and the terms of Human Rights in this paper hereinafter referred to as HAM.
Human Rights are a moral principles or norms. It describes certain human behavior standards, and regularly protected as legal rights under international law and country. Then, they generally understood as an absolute matter of the basic rights. Those call “that a person is inherently entitled because he is a human being,” and the “inherent in all human beings”. It regardless of race, location, language, religion, ethnic origin or other status.
Meanwhile, it applies nationwide and at all times in a universal sense. As well as its democratic in the same meaning for everyone. Human rights and the rule of law needed apathy and imposing forceful legislation on people. The purpose is for respect the human rights of citizen. Moreover, this should not be taken for granted unless in a condition as a result of the legal proceedings. Based on the particular circumstances, for example, human rights may include freedom from unlawful imprisonment, torture, and executions without due process.
Many basic ideas that describe the human rights movement that developed in the aftermath of the Second World War and the atrocities of the Holocaust. Its culminating in the adoption of the Universal Declaration of Human Rights in Paris by the UN General Assembly in 1948. Ancient society did not have the same developing conception of universal human rights. True pioneer of the human rights discourse is the concept of natural rights that arise as part of the tradition of natural law in medieval times.
Then, it became prominent during the Enlightenment period. Many philosophers and other are prominent in the political discourse of the American and the French Revolution. From this denotes, the argument of modern human rights emerged during the second half of the twentieth century. Therefore, its possibly as a reaction to slavery, torture, genocide, and war crimes, As well as the realization of human vulnerability is inherent and as a prerequisite for the possibility of creating a fair community.
The Rule of Law
According to Julius Stahl, a concept which he called the State Law with the term that includes four essential elements, namely:
1. Protection of human rights.
2. Separation of powers.
3. Rule of law.
4. Justice State administration.
While, A.V. Dicey outlines the three essential characteristics in every country Laws that are called by the term The Rule of Law, namely:
1. Supremacy of Law.
2. Equality before the law.
3. Due Process of Law.
The principles that are considered important characteristics according to the State Law The International Commission of Jurists are:
1. The State shall respect the law.
2. The Government that respects the rights of individuals.
3. Justice is independent and impartial.
Meanwhile, according to formulated views on the elements and principles of the Constitutional State the new basis, which includes five as follows:
1. Recognition, respect and protection of Human Rights rooted in respect for human dignity.
2. Applicability of the principle of legal certainty.
Human Rights in Indonesia
The development of human rights in Indonesia have its ups and downs that are clearly visible through the periodicity of Indonesia’s history, from 1908 until now. Basically, the concept of human rights is not merely a concept of rights for individual rights, but also an obligations that included History of Rights Protection of Human Rights
The concept of human rights has been recognized by many Indonesian especially since the 1908 birth of Budi Utomo, namely in the year that started the awareness to the importance of the establishment of a nation state through a variety of article in a Magazine.
The concept of human rights is forefront at the time is the concepts of rights on independence, in the sense of right as an independent nation tht are self-determination. However other rights, such as the right to be free from discrimination in all its forms and the right to issue their thoughts and opinions started to be discussed as well. Even the concept of the right to participate in government has been put forward by Budi Utomo.
Some argues that human rights are derived from the way of thinking liberal and individualistic that puts citizens dealing with the state, and therefore, does not understand human rights in accordance with the integralistic idea of Indonesia. According to the arguments, Indonesia are infused with the country and it is therefore doesn’t make sense for wanting to protect individuals from the state. This debate resurfaced in mid-July 1945. Sukarno argued that justice tenets that are championed by the Indonesia Nation is not the individual justice, but rather social justice and therefore human rights and the basic rights of citizens are not in its place in the Constitution.
Instead, Muhammad Hatta and 11 Bagir Manan, Thought Development and Human Rights Settings. Finally, Article 28 UUD 1945 was reached, where basic democratic rights such as the right to organize and assembly and to express their opinions arranged.
There are 6 type of human right that are acknowledged by Indonesia government and will be discussed below.
Type and division of Human Rights:
- The Right to freedom of movement, traveling and transmigration.
- The Right to freedom or expression.
- The Right to freedom of choice and activity in organizations or associations.
- The Right of freedom to choose, embrace and practice religion and belief that are respected respectively.
- The Right to vote in an election.
- The Right to participate in government activities.
- The Right to create and set up a political party and other political organizations
- The Right to create and submit a petition proposal.
- The Right to equal treatment in law and government.
- The Right to become a civil servant.
- The Right to receive services and legal protection.
- The Right of freedom of buying and selling activities.
- The Right to freedom of contract entered into an agreement.
- The Right to freedom of organizing tenancy, debts.
- The Right to freedom to choose for something.
- The Right to have and get a proper job.
- The Right to obtain a legal defense in court.
- The Right to equality of treatment on search, arrest, detention and investigation in the eyes of the law.
- The Right to define, select and get an education.
- The Right to develop culturally in appropriation to their talents and interests.
There are a few institution that protects Indonesian Human Rights and will be discussed below :
a. National Human Rights Commission (Komisi Nasional HAM)
Initially formed by Presidential Decree. No. 50 in 1993. The establishment of the Human Rights Act in 1999 that make the Commission must conform to the law. The purpose of Komisi Nasional HAM are as follow:
- Assist the development of conditions that conducive to the implementation of human rights.
- Improving the protection and enforcement of human rights in order to develop the personality of Indonesian people and the capability of participating in various fields of life.
To achieve these objectives, the Commission function as follows:
- Assessment and Research: To include and investigate the international human rights instruments. As well as recommendation of the establishment, alteration and revocation of state legislation.
- Guidance: To include and disseminate knowledge of human rights to the public. Its raising awareness of human rights in the institution of formal and non-formal, and cooperation with other organizations in the field of human rights
- Monitoring: Several duties are :
- To include and doing observation and preparation of the reports on the implementation of human rights. Then, do investigation and examination of the human rights violations in the society.
- Summoning to the complainant or victim or witnesses that complained about violations of human rights, a review of the location of the violation of human rights that took place. Moreover, the summoning of the parties concerned and on-site inspection of the place or building owned by certain parties. The summoning followed by agreement of court permission and granting approval of the head justice based on the opinion of the court in human rights cases.
- Mediation: To include keeping peace, settling disputes, providing advice to handle court cases. As well as to deliver recommendations to the House of Representatives for further action that are needed.
b. Human Rights Court
A special court within the general court in the county or city that specifically handle cases of gross human rights violations such as genocide (genocide against a race, ethnicity, race or religion) and crimes against humanity, such as murder, extermination, expulsion, rape, coercion sterilization, ill-treatment, kidnapping, crime of apartheid. Also known as ad hoc tribunals that resolve cases of human rights violations that occurred before the Human Rights Act was born
c. National Commission for Child Protection (KNPA) and the Indonesian Child Protection Commission (KPAI)
KNPA is born from the national movement that begins as child protection since 1997. After the reform, the responsibility is handed over to the community. This institute has purpose is for child protection against discrimination, exploitation, neglect, cruelty, violence, abuse, injustice behavior against one another.
There is also KPAI that are established under article 76 of Law No. 23 of 2002. KPAI formed for the purpose of :
- Socializing state legislation that are relating to child protection.
- Collect data and information, receive public complaints, conduct an evaluation, monitoring, evaluation and monitoring of the implementation of child protection.
- To give out reports, suggestions, input and consideration to President in order to protect the children.
d. The National Commission on Violence Against Women
The commission was established under Presidential Decree No. 181 of 1998 on the basis of a consideration of efforts to eliminate violence against women.
The commission’s functions include:
- The dissemination of the understanding, prevention and elimination of violence against women.
- The Study and research on the relevant United Nations instruments on human rights protection for women.
- Monitoring and research on all forms of violence against women.
- Dissemination of the monitoring results towards violence against women.
- The regional and international cooperation in the prevention and mitigation of violence against women.
e. Truth and Reconciliation Commission
Established under Law No. 27 in 2004 with the aim of:
- Provide alternative settlement of gross human rights violations outside the court (non litigation). It done when the human rights court reach deadlocked conclusion.
- The means of mediation between the alleged perpetrators and victims of gross human rights violations outside the court hearing.
f. NGO Pro Democracy and Human Rights
This is a non-governmental organizations (NGOs). It focuses on the development of democratic life and human development. These NGOs that are included among others: YLBHI (Indonesian Legal Aid Foundation), Contrast (Commission for missing persons and victims of violence), Elsam (institutes of study and advocacy community), PBHI (Association of Legal aid and Human Rights) and others. On the other hand, NGOs were mostly born before the birth of KOMNASHAM. In practice, NGOs are partners of Komnas HAM and are assisting the victims of human rights violations to the Human Rights Commission.
Indonesia adheres to the ideology Democracy of Pancasila. So that the implementation of human rights in Indonesia should work well in accordance with the basic properties of understanding of Pancasila as Democracy.
According to this ideology, rights of every people in Indonesia is basically implemented in a freely fashion, but remain constrained by the rights of others. So, this ideology offers the freedom that is responsible for implementing human rights. However ,it needs to be studied more deeply, because the ideology that are embraced by this country Indonesia may not necessarily be applied by people with absolute rights.
From the political side, the people of Indonesia have enjoyed a broad political freedoms. Four basic freedoms, namely the right to freedom of expression and communication, the right to freedom of assembly, the right to freedom of association and the right to participate in government, which is vital to the workings of the political system and the democratic government that has been enjoyed by the majority of the Indonesian people.
Indonesia people has enjoyed the freedom of association. People are not only freely to establish political parties as a means to fight for their political aspirations. Nowadays, people are also free to founded civic organizations, such as farmers’ unions, trade unions, associations of indigenous peoples, and so forth. In addition, the growth of popular organizations would strengthen civil society that are necessary for the continuity of the political system and democratic governance.
Cases of Human Rights Violations
1. The Events of Trisakti and Semanggi (1998)
Trisakti tragedy occurred on May 12, 1998. These events are associated with the movement in the reform era that are done in 1998. The movement was triggered by the financial crisis and then president Soeharto alleged corruption act, in that the college students then do a massive demonstration in various territories which then leads with the clashes between students and police. This tragedy resulted in 4 students died and dozens more were injured.
2. Case Marsinah (1993)
Marsinah case occurred on 3-4 May 1993. A worker and a woman’s activist at PT Catur Putera Surya Porong, East Java. This event originated from the strike movement by workers Marsinah and PT CPS’ labor workers. They demanded the answer of the companies that have fired them without reason.
After the demonstration, Marsinah was instead found dead five days later. She was killed in the forest area Wilangan, Nganjuk in cruel conditions and was alleged to be victim of human rights violations such as abductions, torture and murder. The investigation is still ongoing until now.
3. Action Bali bombing (2002)
This event occurred in 2002. A bomb detonated in the area of Legian Kuta, Bali by a group of terrorist networks. The panic struck across the archipelago as a result of these events. The Bali bombings also sparked many acts of terrorism in the future. Bali bombing incident became one of the largest terrorist acts in Indonesia. As a result of these events, as many as hundreds of people died, ranging from foreign tourists to local residents in the vicinity.
4. Events Tanjung Priok (1984)
Tanjung Priok case occurred in 1984, between officials with the local people who originated from races problem and a political element. These events triggered by the local people who demonstrated to the government and local officials who want to perform the transfer of the sacred tomb of Mbah Priok. The angry residents who resisted and then conducting a protest, triggering a clash between the residents and members of the police and military. In this incident alleged human rights violations were occurred where there are hundreds of people died as a result of violence and shooting.
Handling of Violations Cases
A little of prevention is worthy to pound of cure. That statement must have been often use. It is particularly relevant in the process of upholding human rights. The best action to uphold human rights is to prevent all the causes of human rights violations. If the factor of the cause does not appear, then the human rights violations can be minimized or even eliminated. Here are precautions we can take to address human rights violations:
- The rule of law and democracy must be upheld. Legal approach must be addressed in order to involve people’s participation in national life. Law enforcement officials must fulfill the obligation to provide good service and fair to the community, provide protection to any person of any unlawful act, and to avoid acts of violence against the law in order to enforce the law.
- Improving the quality of public services in order to prevent the occurrence of various forms of human rights violations by the government.
- Increasing scrutiny from the public and political institutions against any human rights enforcement efforts undertaken by the government.
- Increase the dissemination of human rights principles to the public through formal educational institutions school or college and informal through religious activities and seminars.
- Increase the professionalism of state security and defense institutions.
- Increase the harmonious cooperation between groups in the community to be able to understand and respect the beliefs and opinions of each other.
Human Rights is a concerted effort of all people to achieve equality for all. As well as to embrace humanism that will in turn benefits all people in every nations combined.