Concept of Human Rights Used in Indonesia

PERTANYAAN

Of the three schools of human rights in Indonesia, consisting of Individualism, Marxism, and Integralism schools; which school of human rights does Indonesia adhere to?

INTISARI JAWABAN

In order to know the concept of Human Rights in Indonesia, we must first understand the schools you asked about, namely Individualism, Marxism, and Integralism along with the human rights schools that have developed in the world according to their generations.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Konsep Hak Asasi Manusia yang Digunakan di Indonesia, written by Phalita Gatra, S.H., and was published on Monday, 4 February 2019.

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Previously, we need to first understand the understandings or ideologies mentioned in the question:

1. Individualism

This individualistic understanding is often known as liberalism (freedom) which was introduced by John Locke and Jan Jaques Rousseau and quoted by Max Boli Sabon in his book Human Rights (p. 87) is an understanding that says that humans since in natural life (status naturalis) have had human rights, including rights that are owned personally. Human rights include the right to life, the right to freedom and independence, and property rights (the right to own something).

2. Marxism

Marxism according to Mujaid Kumkelo, et al in their book Fiqh HAM (Ortodoksi dan Liberalisme Hak Asasi Manusia dalam Islam) (p. 34) is an understanding taken from the philosopher Karl Marx, where this understanding rejects the theory of natural rights because a right is the ownership of the state or collectivity (repository of all rights).

According to Teguh Presetyo in his book Filsafat, Teori, dan Ilmu Hukum: Pemikiran Menuju Masyarakat yang Berkeadilan dan Bermartabat (p. 42) a philosophy should not be static, but must actively make changes because what matters most are actions and materials, not ideas. According to Marx, human beings are always linked to social relations that shape history. Humans are social beings, who are active, and visible in the process of production. The essence of man is work (homo laborans, homo faber). So there is a close connection between philosophy, history, and society. Marx's thinking is known as Historical Materialism or Dialectical Materialism.

According to the same source, with this way of thinking Marx also explained his views on the theory of class conflict, so that the next development shaped Communism.

3. Integralism

Integralism is a concept of the state presented by Soepomo, according to which the state is a law, where if the state is healthy, so are individuals and groups, because these individuals and groups love the homeland. Thus, rights derived from humans as their own autonomy are contradictory according to the integralistic principle, because the interests of the individual are the interests of the state, and vice versa. (Soepomo's speech at the session of the Investigating Committee for Preparatory Work for Independence) on May 31, 1945. You may also read Minutes of Hearing of the Investigating Committee for Preparatory Work for Independence of Indonesia (Badan Penyelidik Usaha-usaha Persiapan Kemerdekaan Indonesia/ “BPUPKI”), Preparatory Committee for Indonesian Independence (Panitia Persiapan Kemerdekaan Indonesia/ “PPKI”) May 28, 1945 - August 22, 1945).

Furthermore, we also need to understand the concept of the generations of Human Rights that developed in the world, Max Boli Sabon (pp.31-33) divides it into 3 generations, namely:

1. First Generation: Civil and Political Rights

Civil rights include:

1. the right to self-determination;
2. the right to life
3. the right not to be sentenced to death;
4. the right not to be tortured;
5. the right not to be arbitrarily detained;
6. the right to a fair, independent, and impartial trial.

Political rights include:

1. the right to expression or expression of opinion;
2. the right to assembly and associate;
3. the right to equality before the law
4. the right to vote and be elected;
5. the right to be in government.

These Civil and Political Rights are stipulated in the International Covenant on Civil and Political Rights (“ICCPR”), which has been ratified by Indonesia through Law 12/2005.

2. Second Generation: Economic, Social, and Cultural Rights

Economic rights include:

1. the right to work;
2. the right to equal pay for equal work;
3. the right not to be forced to work;
4. the right to leave;
5. the right to food and housing;
6. the right to health.

Social rights include:

1. the right to social security;
2. the right to family allowance;
3. the right to social services;
4. the right to security when unemployed, sick, disabled, widowed, or reaching advanced age;
5. the right of mothers and children to special care and assistance;
6. the right to social protection for children out of wedlock.

Cultural rights include:

1. the right to education;
2. the right to participate in cultural activities
3. the right to enjoy the advancement of science;
4. the right to protection of copyrighted works.

These Economic, Social, and Cultural Rights are stipulated in the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”), which has been ratified by Indonesia through Law 11/2005.

3. Third generation: includes six kinds of rights, namely:

1. the right to economic, social, political, and cultural self-determination;
2. the right to economic and social development
3. the right to participate in, and benefit from the common heritage of mankind, as well as information and other advances;
4. the right to peace;
5. the right to a healthy environment;
6. the right to humanitarian assistance.

 

4. Fourth generation: this one generation is promoted by Jimly Ashiddique, according to his book Hukum Tata Negara dan Pilar-Pilar Demokrasi (pp. 209-228) the first to the third generation of human rights is only the concept of human rights seen from a vertical perspective, namely the relationship between the people and the authorities. Meanwhile, the fourth generation of rights is the conception of human rights seen from a horizontal perspective. According to him, seeing the development of this era, three horizontal power groups have emerged, namely state power on the one hand/ one party, economic power (global capitalism/ multinational companies), and civil society power. In short, there are three groups of power that influence each other, namely the state, the market, and civil society, including nongovernmental organizations (NGOs). Thus, the fourth generation right is the right of one group not to be oppressed by another, both inter-group and intra-group, in a horizontal relationship pattern.

Prior to ratifying the ICCPR and ICESCR, Indonesia had also established Law 39/1999 on Human Rights. According to a women's rights practitioner from the Lembaga Samahita, Annisa Yovani, the Human Rights Law has also included rights related to Civil and Political Rights, and also Economic, Social, and Cultural Rights, in the following articles:

1. Civil Rights:

Article 9 Law 39/1999

1. Every person has the right to live, to survive, and to improve their standard of living.
2. Every person has the right to live in peace, security, happiness, physical and mental prosperity.
3. Everyone has the right to a good and healthy environment.

Article 20 Law 39/1999

1. No one shall be enslaved or held in slavery.
2. Slavery or servitude, the slave trade, the trafficking of women, and any act of similar nature are prohibited.

 

2. Political Rights:

Article 23 Law 39/1999

1. Everyone is free to choose and hold his political beliefs.
2. Every person is free to have, issue, and disseminate opinions according to his/her conscience, orally and or in writing through print and electronic media with due regard to religious values, decency, order, public interest, and the integrity of the state.

Article 24 Law 39/1999

1. Every person has the right to assemble, meet, and associate for peaceful purposes.
2. Every citizen or community group has the right to establish political parties, non-governmental organizations, or other organizations to participate in the course of government and state administration in line with the demands for the protection, enforcement, and promotion of human rights in accordance with the provisions of laws and regulations.

 

3. Economic Rights:

Article 38 Law 39/1999

1. Every citizen, in accordance with their talents, skills, and abilities, has the right to decent work.
2. Everyone has the right to freely choose the work he likes and is also entitled to fair labor conditions.
3. Everyone, whether male or female performing the same, comparable, equal, or similar work, is entitled to the same wages and terms of employment.
4. Every person, whether male or female, engaged in work commensurate with his or her human dignity is entitled to a fair wage commensurate with his or her achievements and capable of providing for his or her family.

 

4. Social Rights:

         Article 41 Law 39/1999

1. Every citizen has the right to social security needed for a decent life and for his/her full personal development.
2. Every person with disabilities, the elderly, pregnant women, and children, are entitled to special facilities and treatment.

 

5. Cultural Rights:

Article 71 Law 39/1999

The government is obliged and responsible for respecting, protecting, upholding, and promoting the human rights stipulated in this Law, other laws and regulations, and international human rights law accepted by the Republic of Indonesia.

Article 72 Law 39/1999

The obligations and responsibilities of the government as referred to in Article 71, include effective implementation measures in the legal, political, economic, social, cultural, national security defense, and other fields.

So to answer your question, which human rights tradition does Indonesia adhere to? What are the concepts of human rights? Here is the explanation:

Furthermore, according to Annisa, the Human Rights Law, Law 11/2005, Law 12/2005, and other regulations are the implementation of the human rights concept used in Indonesia. She explained that elements of human rights that are characterized by self-interest (such as the right to life, and the right to own something) are Individualistic human rights concepts. While the elements of human rights that are characterized among individuals or a group or related to justice (the right to get an equal wage, get social security, and the right to assemble) is the concept of human rights of the Marxist school.

In addition, Jimly Asshiddiqie explained that when the 1945 Constitution was amended constitutionally, by adding Chapter XA entitled Human Rights, constitutionally all Indonesian Citizens accepted the concept of human rights as a concept in line with the ideology of Pancasila. Thus, all arguments on the concept of human rights that occurred during the movement for independence have disappeared, and now there are no more disagreements about human rights to be included in the 1945 Constitution.[1]

For information, previously according to Max Boli Sabon (p. 89) during the era of Indonesia's independence movement, there were several arguments about whether or not the concept of human rights should be included among the founding fathers of the nation, including:

1. Soekarno opposed the inclusion of human rights in the 1945 Constitution because the concept of human rights was based on the individualistic ideology of liberalism and should be eradicated.
2. Soepomo argued that human rights are individualistic and thus contradict the family state (integralistic state) that is being built.
3. Mohammad Hatta argued that human rights need to be included in the 1945 Constitution to avoid abuse of power by the state against citizens if one day the state of law or rule of law (rechtsstaat) turns into a state of power (machtsstaat).
4. Mohammad Yamin argued that human rights need to be included in the 1945 Constitution as a protection of the independence of citizens who must be recognized by the 1945 Constitution.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. The 1945 State Constitution of the Republic of Indonesia;
2. Law Number 39 of 1999 on Human Rights;
3. Law Number 11 of 2005 on the Ratification of International Covenant on Economic, Social, and Cultural Rights;
4. Law Number 12 of 2005 on the Ratification of International Covenant on Civil and Political Rights.

Reference:

1. Max Boli Sabon. 2014. Hak Asasi Manusia. Jakarta: Universitas Atma Jaya;
2. Mujaid Kumkelo dkk. 2005. Fiqh HAM (Ortodoksi dan Liberalisme Hak Asasi Manusia dalam Islam) Malang: Setara Press;
3. Jimly Ashiddique. 2005. Hukum Tata Negara dan Pilar-Pilar Demokrasi, Jakarta: Kompress;
4. Teguh Presetyo. 2017. Filsafat, Teori, dan Ilmu Hukum: Pemikiran Menuju Masyarakat yang Berkeadilan dan Bermartabat. Depok: Raja Grafindo;
5. Pidato Soepomo dalam sidang Badan Persiapan Usaha-Usaha Persiapan Kemerdekaan (BPUPK) pada tanggal 31 Mei 1945. Lihat, Risalah Sidang Badan Penyelidik Usaha-usaha Persiapan Kemerdekaan Indonesia (BPUPKI), Panitia Persiapan Kemerdekaan Indonesia (PPKI) 28 Mei 1945 - 22 Agustus 1945.

NB:

We conducted a phone interview with Annisa Yovani, a women's rights practitioner from Lembaga Samahita, on Tuesday, January 29, 2019, at 18.00 West Indonesian Time (zone).

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[1] Max Boli Sabon. 2014. Hak Asasi Manusia. Jakarta: Universitas Atma Jaya, pp. 89-90.