3Snapshot of Republic of Indonesia Population : 242 million (2012)Area : 1,919,440 km2) or equal to 735,355 sq miIslands : islandsIndependence : 17 August 1945 (from Netherlands and Japan)Acknowledged by the Netherlands : 27 December 1949Joined the United Nations 28 September 1950
4POLITICAL SYSTEM Presidential representative democratic republic President is both head of state and head of governmentMulti-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
5Multi Party System 1971 – 1997 only three parties 1999 (48 parties) 2004 (24 parties) (44 parties) 2014 (15 parties)
6POLITICAL 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 legislatureThe 1945 constitution provided for a limited separation of executive, legislative and judicial power
7POLITICAL SYSTEM (3) Legislative Branch People’s Consultative Assembly (MPR)Regional Representative Council (DPR) > 560 membersPeople’s Representative Council (DPD) > 4 representatives from each provinces (33 provinces) = 132 membersJudicial BranchSupreme Court (Mahkamah Agung)Constitutional Court (Mahkamah Konstitusi) established in 2003Judicial Commission (Komisi Yudisial) established in 2003
9INDONESIAN CONSTITUTIONS 1945 – 2011 (three constitutions) 1945 CONSTITUTION (1945 – 1949) and (1959 – now)REPUBLIC OF UNITED STATES OF INDONESIA CONSTITUTION (1949 – 1950)TEMPORARY CONSTITUTION (1950 – 1959)
10FORMAL AMENDMENTSTook place a year after political revolution in 1998 (reform movement) > the resignation of former President Soeharto after 32 years in officeConducted by MPR (People’s Consultative Assembly) through MPR General Assembly in 1999, 2000, 2001 and 2000There were four amendments up to now (1999, 2000, 2001, and 2001)Additional articles, from 37 articles (1945) to 73 articles (2002)
11Contents of AmendmentFirst amendment 1999 > more on presidential roles, rights and powersSecond amendment 2000> on regional autonomy, citizenship, human rights, defense and security issuesThird 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
12The People Consultative Assembly (MPR) insisted to keep the original name of the constitution as 1945 Constitution though it had been amended for four times ( )
13WHAT REMAIN UNCHANGEDThree 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 Constitution3. 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).
15DEVELOPMENT 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 subjectsEnactment of Human Rights Act 1999Enactment of Human Rights Court Act 20002nd Amendment of Indonesian Constitution 1945 which inserted special articles on human rights (Article 28)
16DEVELOPMENT OF HUMAN RIGHTS IN INDONESIA Ratification of ICCPR and ICESCR 2005Ratification of CAT 1998Ratification of CEDAW 1984Ratification of CRC 1990Ratification of Convention on Migrant Workers 2012etc
17Remain Unratified : Rome Statute 1998 on the establishment of ICC Convention Relating to Status of Refugees 1951Reason? Sovereignty? Indonesia as transit country for refugees/ asylum seekers?
18Human Rights Provision in Indonesian Constition 1945 before 2nd Amendment in 2000 Article 27 Equality before the law and governanceArticle 28 Freedom of expression, to gather and joint any organizationArticle 29 Freedom of worship, conscience and religionArticle 30 Rights and obligation to take part in state defenseArticle 31 Rights of educationArticle 34 Rights of poor people and abandoned children to be protected by the state
19DISTINCTIVE HUMAN RIGHTS PROVISION IN CONSTITUTION 1945 AFTER 2nd AMENDMENT 2000 CHAPTER X AArt. 28 ARight to LifeArt. 28 BRight to form a family and entering into marriage life legallyChildren rights
20Art. 28 CRight of EducationArt. 28 DRights of justice & equality before the lawRight to workEqual rights before the governanceRights to citizenship
21Art. 28 EFreedom 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)Freedom of conscienceFreedom to gather, joint any organization and freedom of expression
22Art 28 FRight of communication and obtaining informationArt 28 GRight of security – invidual, family, dignity, property & freedom from fearFreedom from torture and other inhuman and degrading treatment and punishment & right to apply for political asylum
23Art 28 HRight for healthy environment and right of health servicesRight for special treatment and accessibilityRight for social securityRight of property
24Art 28 JObligation to respect other people’s human rightsObligation 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.
25Art 28 ICertain underogable/ inalienable rights > right to life, freedom of conscience, freedom from slavery, equality before the law, non-retroactive indictmentFreedom from discriminationRights of identity and indigenous people rightsState obligation to : PROTECT-PROMOTE-ENFORCE-FULFILL human rightsEnforment and protection of human rights are compatible with the principles of democratic legal state and embodied in statutory
26Sources of Human Rights Provisions in 2nd Amendment to Indonesian Constitution 1945 UDHR 1948International Covenant on Civil and Political Rights (ICCPR) 1966International Covenant on Economic Social and Cultural Rights (ICESCR) 1966
27Perspective 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)
28PROBLEM AND CHALLENGES Universality vs Cultural RelativismHuman Rights in Laws vs Human Rights in PracticesRight to life (death sentence still applied)Freedom of conscience, worship and religion(cases of religious minority groups, worship places)
29PROBLEM AND CHALLENGES (2) Right to marry legally (unregistered marriage is considered legal by some religion) > questioning ‘the legal’ termChildren 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
31UNIVERSALITY Human rights apply to everyone with no exceptions Every individual has the right to enjoy human rights, wherever the individual resides
32Perspective 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
33INDIVISIBILITYRefers to the necessity that governments and individuals recognize each human rights and not selectively promote some rights over others
34Distinctions 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.
35Distinctions 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.
36Distinctions made by Cairo Declaration 1990 (3) Article 24 All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari'ah.
37DISTINCTION MADE BY ARAB CHARTER 1990 (2) Article 10The 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)
38PROBLEM IN CONSTRUCTING HUMAN RIGHTS WHO DEFINES HUMAN RIGHTS?WHO BENEFIT FROM THE DEFINITIONWHO LOSES FROM THE DEFINITIONWHOSE VOICES ARE HEARD IN ENFORCING HUMAN RIGHTS
39POLITIC OF ACCOMMODATION? PREREQUISITES FOR A DEMOCRATIC LEGAL STATE? THE DRIVING FACTORS IN DEVELOPING HUMAN RIGHTS PROVISIONS IN INDONESIAN CONSTITUTION 1945EXTERNAL PRESSURE?POLITIC OF ACCOMMODATION?REFORM MOVEMENT 1998GLOBAL TREND?NATIONAL NEEDS?PREREQUISITES FOR A DEMOCRATIC LEGAL STATE?
40SAME QUESTIONS APPLIED FOR CULTURAL RELATIVISM WHO DEFINES?WHO BENEFIT?WHO LOSES?WHOSE VOICES ARE BEING HEARDWHOSE VOICES ARE SILENCED?
41CULTURAL 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.
42EXAMPLE : ASIAN VALUES, ASEAN CHARTER AND HUMAN RIGHTS (Thilo Rensmann, 2009) ASEAN Charter, signed in Singapore in November 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.
43EXAMPLE : 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 CharterAdherence to the rule of law, democracy and human rights are relegated to the 8th and 9th principles.
44UNIVERSALITY VS CULTURAL RELATIVISM Each culture define its norms and has a right regardless of culture(CULTURAL RELATIVISM)Exact same universal standard applies strictly for everyone regardless of culture(UNIVERSALITY)
45CONCLUSIONhuman 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.
46CONCLUSION (2)Cultural relativism does exist in human rights practicesPrinciple of universality of human rights will always become a challenge when it comes to practice in different countriesUDHR 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
47Thank you so muchTerima kasih banyakKhob khun mak mak khrap@herususetyo