PROTECTION OF HUMAN RIGHTS IN INDONESIA |
Humans
are the most glorious creatures of God, and have a noble degree as human
beings, have their own independent mind and initiative. All human beings as
human beings have the same dignity and degree, and have the same rights. The
high degree of humanity comes from God who created it. Thus all human beings
are free to develop themselves in accordance with the healthy spirit. As a
creature of God, all human beings have the same rights as human beings. These
same human rights are often called human rights. Human rights means rights
inherent in human beings by their very nature, meaning human rights as human
beings. Human rights are the basic rights that human beings possess as human
beings who come from God, and can not be inviolable by anyone.
How
to protect human rights in Indonesia? Even if the implementation is not maximal
the following instruments Human Rights Protection in Indonesia
1. UUD 1945 AMENDMENT
RESULT
In
Indonesia, efforts to elaborate human rights provisions have been made through
the amendments of the 1945 Constitution, the following articles of the 1945
Constitution of Amendment
1)
Article 27 of the 1945 Constitution reads:
(1) "All
citizens shall be at the same time in law and government and shall be obligated
to impose such law and government without exceptions".
(2) Every citizen
shall have the right to work and a decent living for humanity.
(3) "Every
citizen shall have the right and obligation to participate in the defense of
the state."
2)
Article 28 of the 1945 Constitution
"Freedom of
association and assembly, issue of thought with oral and written and so on is
stipulated by law"
3)
Article 28 A
Everyone has the
right to live and have the right to survive and live
4)
Article 28 B
(1) Everyone has the
right to form a family and to continue the offspring through legitimate
marriage
(2) Everyone has the
right to survival, growth and development and is entitled to protection from
violence and discrimination
5)
Article 28 C
(1) Everyone has the right
to develop themselves through the fulfillment of their basic needs, deserve
education and benefit from science and technology, art and culture in order to
improve the quality of life and for the welfare of mankind.
(2) Every person
shall have the right to advance himself / herself in the struggle for his / her
right collectively to build his society, nation and country
6)
Article 28 D
(1) Everyone is
entitled to fair recognition, guarantee, protection and legal certainty and
equal treatment before the law
(2) Everyone shall
have the right to work and receive fair and reasonable remuneration and
treatment in the employment relationship
(3) Every citizen
shall be entitled to equal opportunity in government
(4) Everyone is
entitled to citizenship status
7)
Article 28 E
(1) Everyone freely
embraces religion and worships according to his religion, chooses education and
teaching, chooses employment, elects citizenship, chooses residence in the
territory of the country and leaves it and is entitled to return.
(2) Everyone has the
right to freedom of belief, to express his thoughts and attitudes according to
his conscience.
(3) Everyone has the
right to freedom of association, assembly and expression.
8)
Article 28 F
Every person shall
have the right to communicate and obtain information to develop his / her
personal and social environment and shall have the right to seek, obtain,
possess, store, process and convey information by using any available channels.
9)
Article 28 G
(1) Everyone is
entitled to personal protection, family, honor, dignity, and property under his
control, and is entitled to a sense of security and protection from the threat
of fear to do or not to do something that is his basic right.
(2) Everyone shall
have the right to be free from torture or degrading treatment of human dignity
and entitled to obtain political asylum from another country.
10)
Article 28 H
(1) Everyone shall
have the right to live in physical and spiritual prosperity, to live and to
have a healthy and healthy living environment and to be eligible for health
services.
(2) Everyone shall
have the right and privilege to have equal opportunities and benefits to
achieve equality and fairness
(3) Everyone shall be
entitled to compensation for social security which enables his complete
development as a dignified human being
(4) Everyone shall
have the right to own the right of private property and the right to property
shall not be arbitrarily taken over by any person.
11)
Article 28 I
(1) The right to
life, the right not to be tortured, the right of freedom of thought and
conscience, the right of religion, the right not to be enslaved, the right to
be recognized as a person before the law, and the right not to be prosecuted on
the basis of retroactive law is a human right which can not be reduced under
any circumstances.
(2) Everyone shall
have the right to be free from discriminatory treatment on any basis and shall
be entitled to protection against such discriminatory treatment.
(3) The cultural identity
and rights of traditional societies are respected in harmony with the times and
civilizations.
(4) The protection,
promotion, enforcement and fulfillment of human rights is the responsibility of
the state, especially the government
(5) To uphold and
protect human rights in accordance with the principles of a democratic legal
state, the implementation of human rights is guaranteed, regulated and set
forth in legislation.
12)
Article 28 J
(1) Everyone shall
respect the human rights of others in the orderly life of society, nation and
state.
(2) In the exercise
of their rights and freedoms, each person shall be subject to the restrictions
laid down by law with the sole intent of ensuring the recognition and respect
of the rights and freedoms of others and to fulfill fair demands according to
moral judgment, religious values, security and public order in a democratic
society.
13)
Article 29
(1) State based on
the One and Only God
(2) The State
guarantees the freedom of every citizen to embrace his or her own religion and
to practice according to his or her religion and belief.
14)
Article 30 paragraph (1)
(1) Every citizen
shall have the right and obligation to participate in the defense and security
of the state.
15)
Article 31
(1) Every citizen
shall have the right to education
(2) Every citizen is
obliged to follow basic education and the government is obliged to finance it.
16)
Article 32
(1) The State
promotes Indonesian national culture in the midst of world civilization by
guaranteeing the freedom of society in maintaining and developing its cultural
values.
17)
Article 33
(1) The economy is
prepared as a joint effort based on the principle of kinship
(2) Production branches
that are important to the state and which affect the livelihood of the people
are controlled by the state.
(3) The earth, water
and natural resources contained therein are controlled by the state and used
for the greatest prosperity of the people.
18)
Article 34
(1) The poor and
neglected children are kept by the state.
2. LAW OF THE
REPUBLIC OF INDONESIA NUMBER 39 YEAR 1999 ON HUMAN RIGHTS
In
order to elaborate the provisions of human rights has been done through the
amendment of the 1945 Constitution has promulgated Law No. 39 of 1999 on Human
Rights. Broadly speaking, the Law of the Republic of Indonesia Number 39 Year
1999 on Human Rights covers:
1)
The right to life (eg right: sustaining life, obtaining inner-born welfare,
acquiring a good and healthy environment);
2)
The right to marry and continue the offspring.
3)
Right to self-development (eg right: fulfillment of basic needs, improve
quality of life, benefit from science and technology, obtain information, do
social work);
4)
Right to justice (eg right: legal certainty, equality before the law);
5)
The right to personal freedom (eg right of religion, political belief, elect
citizenship status, opinion and dissemination, establishment of political
parties, NGOs and other organizations, free to move and reside);
6)
The right to security (eg right: obtaining political asylum, protection against
the threat of fear, communicating, protection against torture, enforced
disappearance and disappearance of lives);
7)
The right to welfare (eg rights: private and collective property, obtaining
decent work, establishing unions, decent living, decent living, and social
security);
8)
The right to participate in government (eg right: elect and be elected, direct
and indirect participation, appointed in government office, propose to the
government);
9)
Women's rights (equal rights / no discrimination between women and men in
politics, employment, civic status, marital family);
10)
Rights of the child (eg right: protection by parents, family, community and
country, worship according to religion, expression, special treatment for
disabled children, protection from economic exploitation, occupation, sexual
harassment, child trafficking, narcotics abuse, addictive others).
3. LAW NO. 7 OF 1984
ON THE RATIFICATION OF THE UN CONVENTION ON THE ELIMINATION OF ALL FORMS OF
DISCRIMINATION AGAINST WOMEN (ABBREVIATED AS WOMEN CONVENTION).
With
ratification of the Convention, all forms of discrimination based on sex
differences (male - female) must be removed. For example, the treatment of wage
for female laborers under male wage should be abolished, so the world of
politics does not belong to men so women should be given equal opportunity to
occupy positions within political parties and government. Thus there is a
difference in respect for men and women, not because of their gender but
because of differences in achievement. We must realize that the development of
a country, the welfare of the world, and the efforts of peace require the
maximum participation of women on the basis of equality with men. We can not
deny the magnitude of women's contributions to family welfare and
child-rearing. This shows the necessity of dividing responsibilities between
men and women and society as a whole, not the basis of discrimination.
4.
LAW NO. 23 OF 2002 ON CHILD PROTECTION
Law
No. 23 of 2002 asserts that the accountability of parents, families,
communities, government and the state is a series of activities carried out
continuously for the protection of children's rights. The series of activities
should be sustainable and directed to ensure the growth and development of
children, whether physical, mental, spiritual or social. This action is meant
to realize the best life for the child who is expected as a potential,
resilient, nationwide successor of nationalism imbued with noble character and
Pancasila value, and strong will to maintain unity and unity of nation and
state.
Child
protection efforts need to be done as early as possible, ie from the fetus in
the womb until the child is 18 (eighteen) years old. Starting from a
comprehensive, comprehensive, and comprehensive conception of child protection,
this law places the obligation to provide protection to children on the basis
of the following principles:
a.
nondiscrimination;
b.
the best interests of the child;
c.
the right to life, survival and development; and
d.
appreciation of the child's opinion.
In
the conduct of the development, development and protection of children, the
role of the community, whether through child protection institutions, religious
institutions, non-governmental organizations, social organizations, social
organizations, the business community, mass media or educational institutions.
5.
LAW NO. 8/1998 ON THE RATIFICATION OF THE CONVENTION AGAINST TORTURE AND OTHER
CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT OR CRUEL TREATMENT OR
PUNISHMENT.
The
Convention governs the prohibition of torture both physically and mentally, and
other cruel, inhuman or degrading treatment or punishment by or against
instigation of or with the consent / knowledge of the public official and
others acting in his or her position. This means that the ratifying RI State
must take legislative, administrative, legal and other effective measures to
prevent acts of torture within its jurisdiction. For example, the steps taken
by improving the interrogation and training of each law enforcement apparatus
and other public officials responsible for persons deprived of their
independence.
6.
LAW NO. 1 OF 2000 ON RATIFICATION OF ILO CONVENTION NO. 182 CONCERNING
VIOLATIONS AND IMMEDIATE ACTION ON THE ELIMINATION OF THE WORST FORMS OF CHILD
LABOR.
According
to the International Labor Organization (ILO) Convention, the term "worst
forms of child labor implies the following:
1). All forms of slavery or slavery-like practices, for
example:
a)
the sale of the child;
b)
trafficking of children;
c)
employment of bonds;
d)
slavery (slavery);
e)
forced or compulsory labor;
f)
mobilization of children by force or obligation to be used in armed conflict;
2). The use, procuring or offering of children for
prostitution, for the production of pornography, or for pornographic
performances;
3). The use, procuring or offering of children for
illicit activities, especially for the production and trade of medicines.
4). The work of that nature or the environment in which
the work is performed may harm the health, safety or moral of the child.
With
UURI Number 1 of 2000 on Ratification of ILO Convention No. 182, the Republic of
Indonesia shall take legislative, administrative, legal and other effective
measures to prevent the practice of child labor in the worst forms of child
labor in industry and community.
7. LAW NO. 11 OF 2005
ON THE RATIFICATION OF THE INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND
CULTURAL RIGHTS (COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS).
The
Covenant establishes and outlines the human rights, economic, social and
cultural aspects of the UDHR or the Universal Declaration of Human Rights
(UDHR) in legally binding terms. The Covenant consists of preamble and articles
covering 31 articles. In essence, the present covenant recognizes the human
rights of every person in the economic, social and cultural fields, including:
1)
the right to work,
2)
the right to enjoy just and favorable working conditions,
3)
the right to form and join trade unions,
4)
the right to social security, including social insurance,
5)
the right to the widest possible protection and assistance for families,
mothers, children and young people,
6)
the right to an adequate standard of living,
7)
the right to enjoy the highest attainable standard of physical and mental
health,
8)
the right to education, and
9)
the right to participate in cultural life.
8.
LAW OF THE REPUBLIC OF INDONESIA NUMBER 12 YEAR 2005 REGARDING RATIFICATION OF
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (INTERNATIONAL COVENANT ON
CIVIL AND POLITICAL RIGHTS).
The
Covenant establishes the human and civil rights principles contained in the
UDHR to be legally binding provisions. The Covenant consists of preamble and
articles covering 6 chapters and 53 Articles. Civil rights (fundamental
freedoms) and political rights include:
a)
Civil rights:
1)
the right to life;
2)
the right to be free from torture, cruel, inhuman or degrading treatment or
punishment;
3)
the right to be free from slavery;
4)
the right to be free from arbitrary arrest or detention;
5)
the right to choose his residence, to leave any country including his own
country;
6)
the right of equality before the judiciary and the judiciary;
7)
right to presumption of innocence.
8)
the right to freedom of thought;
9)
right of belief and religion;
10)
the right to have opinions without interference from others;
11)
the right to freedom of expression;
12)
the right to marry / form a family;
13)
the right of the child to the protection required by his status as a minor, the
immediate enforcement of every child after birth and the necessity of having a
name, and the right of the child to the nationality;
14)
equal status of all persons before the law and
15)
the right to equal legal protection without discrimination.
b)
Political Rights:
1)
the right to peaceful assembly;
2)
the right to freedom of association;
3)
the right to participate in public affairs;
4)
the right to vote and to be elected;
5)
the right to have access to public office in the country;
9.
LAW OF THE REPUBLIC OF INDONESIA NUMBER 26 OF 2000 ON HUMAN RIGHTS COURT.
Law
No. 26/2000 regulates courts for gross human rights violations. The Human
Rights Court is a special court which is in the public court and domiciled in
the district or city. The Human Rights Court is a special tribunal against
gross human rights violations covering crimes of genocide and crimes against
humanity. The crime of genocide is any act committed with the intent to destroy
or annihilate all or part of a nation, race, group, ethnicity and religion. The
ways in which crime of genocide, for example; kill, actions that cause physical
or mental suffering, create conditions that result in physical extinction,
force actions aimed at preventing birth, forcibly transferring children from
certain groups to other groups.
While
the intended crimes against humanity is one of the acts committed as part of a
widespread or systematic attack it knows that the attack is directed against
civilians. Crimes against humanity for example:
1)
murder, extermination, slavery, torture;
2)
forced expulsion or displacement;
3)
arbitrary deprivation of liberty or other arbitrary deprivation of physical
liberty in violation of the fundamental provisions of international law;
4)
rape, sexual slavery, forced prostitution, forced pregnancy, sterilization or
forced sterilization or other forms of sexual violence equal;
5)
the persecution of a particular group or association based on a commonly
recognized political, racial, national, ethnic, cultural, religious, ethnic,
cultural, ethnic, cultural, religious, or other cultural notion as prohibited
under international law;
6)
enforced disappearance (arrest, detention, or kidnapping accompanied by a
denial of acknowledgment of such acts and provision of information about the
fate and whereabouts of the victim with the intention of releasing from legal
protection for a long time);
7)
the crime of apartheid (oppression and domination by a racial group of racial
or other groups and done with a maskud to defend the rules of the ruling
government or regime). The Human Rights Court has the duty and authority to
examine and decide cases of gross human rights violations. The Human Rights
Court is also authorized to examine and decide cases of gross human rights
violations committed outside the territorial boundaries of Indonesian territory
by Indonesian citizens (WNI). Besides, it is also known as the Ad Hoc Human
Rights Court, which is authorized to adjudicate gross human rights violations
that occurred before the enumeration of UURI Number 26 Year 2000 on Human
Rights Court. Therefore, gross human rights violations do not recognize
expiration. In other words, the Ad Hoc Human Rights Court is the application of
the retroactive principle of gross human rights violations.
10.
PRESIDENTIAL DECREE NUMBER 50 YEAR 1993 CONCERNING THE NATIONAL COMMISSION (KOMNAS
HAM)
The
National Commission (Komnas HAM) was formed by Presidential Decree No. 50 of
1993. The establishment of this commission is an answer to the demands of
society and international pressure on the need for human rights enforcement in
Indonesia. Then with the birth of UURI Number 39 Year 1999 on Human Rights,
which in it regulate about Komnas HAM (Chapter VIII, article 75 s / d99),
Komnas HAM which is formed by Presidential Decree must adjust to UURI Number 39
Year 1999. Komnas HAM aims:
1)
to assist in the development of conditions conducive to the implementation of
human rights.
2)
enhance the protection and enforcement of human rights for the development of a
fully Indonesian human person and the ability to participate in various areas
of life.
To
implement these objectives, Komnas HAM has the following functions:
1)
Research and research functions. To carry out this function, Komnas HAM has the
authority to:
a)
undertake the study and research of various international instruments with the
aim of providing suggestions on the possibility of accession and or
ratification.
b)
undertake the review and research of various laws and regulations to provide
recommendations on the establishment, amendment and revocation of laws relating
to human rights.
2)
Extension function.
In the context of
implementing this function, Komnas HAM is authorized to:
a)
disseminating insights about human rights to the people of Indonesia.
b)
raising public awareness about human rights through formal and non-formal
education institutions and various other groups.
c)
cooperation with other organizations, institutions or other parties at
national, regional, and international levels in the field of human rights.
3)
Monitoring function.
This function
includes the following:
a)
observing the implementation of human rights and the compilation of reports of
observations.
b)
investigation and examination of events that arise in a society where human rights
violations are alleged to exist.
c)
summoning to the complainant or the victim or the complained party to be asked
for or heard his / her statement.
d)
summoning witnesses for questioning and witnessing, and to the complainant's
witness being required to submit the necessary evidence.
e)
review at the scene and other places deemed necessary.
f)
calling on the parties concerned to provide written information or to submit
the necessary documents in accordance with the original with the approval of
the Chief Justice.
g)
Local examination of houses, yards, buildings and other places occupied or
owned by certain parties with the approval of the Chief Justice.
h)
giving opinion based on the approval of the Chief Justice of a particular case
that is in the judicial process, where in the case there is a violation of
human rights in public matters and a hearing by a court which later Komnas HAM
opinion shall be notified by the judge to the parties.
4)
Mediation function.
In carrying out the
mediation function of Komnas HAM is authorized to:
a)
the peace of both parties.
b)
settlement of cases through consultation, negotiation, conciliation and expert
judgment.
c)
advising the parties to settle disputes through courts.
d)
submitting a recommendation on a case of human rights violation to the
Government for follow-up to its resolution.
e)
submitting a recommendation on a case of human rights violation to DPR RI for
follow up.
For every person and
or group having strong grounds that their human rights have been violated, they
may file reports and oral or written complaints on the National Human Rights
Commission (Komnas HAM). A complaint will only be served if it is accompanied
by a correct claimant identity and a clear explanation or clear evidence of the
complained material.
11.
THE NATIONAL COMMISSION ON CHILD PROTECTION AND THE INDONESIAN CHILD PROTECTION
COMMISSION
The
National Child Protection Commission (KNPA) was born from a national child
protection movement that actually began in 1997. Later in the reform era, the
responsibility to provide child protection was left to the community. KNPA's
duties undertake child protection from treatment, for example: discrimination,
exploitation, economic or sexual, abuses, cruelty, violence, torture, injustice
and other mistreatment. KNPA also encouraged the birth of Law Number 23 Year
2002 on Child Protection. Besides KNPA is also known KPAI (Indonesian Child
Protection Commission). KPAI was formed based on the mandate of article 76 of
RI Law Number 23 Year 2002.
The
Indonesian Child Protection Commission is tasked with:
a.
socialize all provisions of legislation related to child protection
b.
collect data and information, receive public complaints, conduct review,
monitoring, evaluate and supervise the implementation of child protection.
c.
provide reports, suggestions, inputs and considerations to the President in the
context of child protection. For example, for the task of providing input to
the President / government of KPAI asking the government to immediately make a
law for smoking ban for children or at least include article of smoking ban for
children in the Act.
12.
PRESIDENTIAL DECREE NO. 181/1998 ON THE ESTABLISHMENT OF A NATIONAL COMMISSION
ON VIOLENCE AGAINST WOMEN
The
National Commission on Violence Against Women was formed according to
Presidential Decree No. 181/1998. The basic consideration of the establishment
of the National Commission was to prevent and eliminate all forms of violence
against women. The National Commission is independent and aims to:
a.
disseminating an understanding of the forms of violence against women.
b.
developing conditions conducive to the elimination of violence against women.
c.
increase efforts to prevent and overcome all forms of violence against women
and women's rights.
In
order to realize the above objectives, the National Commission has the
following activities:
1)
dissemination of understanding, prevention, handling, elimination of all forms
of violence against women.
2)
study and research on various UN instruments on the protection of human rights
of women.
3)
monitoring and researching all forms of violence against women and providing
opinions, suggestions and judgments to the government.
4)
dissemination of results of monitoring and research on the occurrence of
violence against women to the community.
5)
the implementation of regional and international cooperation in preventing and
overcoming violence against women.
13.
LAW NUMBER 27 YEAR 2004 REGARDING THE TRUTH AND RECONCILIATION COMMISSION
Formed
under Law Number 27 Year 2004 regarding the Truth and Reconciliation
Commission. The existence of the Truth and Reconciliation Commission (KKR) to:
1)
Provide an alternative to solving gross violations of human rights outside the
Human Rights Court when the settlement of gross human rights violations through
human rights courts and Ad Hoc human rights courts is deadlocked;
2)
Mediation facilities between perpetrators and victims of gross human rights
violations to resolve outside the human rights court.
It
is hoped that the problem of gross human rights violations can be solved,
because if it can not be solved then it will become an obstacle for the effort
to create a sense of justice and truth in society. If the sense of justice and
the desire of the people to reveal the truth can be realized, then it can be
realized reconciliation (peace / reconciliation). This reconciliation is
important for the life of the nation and the state can be avoided from the
long-standing conflict and grudge of history among fellow children of the
nation. The peacekeeping of the nation's children is the main capital for
building this nation and country toward progress in all fields.
14.
PRO-DEMOCRACY AND HUMAN RIGHTS NGOS
In
addition to human rights enforcement agencies established by the government,
the community also established various human rights institutions. Human rights
institutions are formed mainly by NGOs (Non-Governmental Organizations) or NGOs
(Non Governmental Organizations) whose programs focus on democratic development
(democratization) and human rights development. These NGOs are often referred
to as Pro-democracy and Human Rights NGOs. These NGOs include:
a)
YLBHI (Indonesian Legal Aid Foundation Foundation)
b)
Contrast (Commission for Missing Persons and Victims of Violence),
c)
Elsam (Institute for Study and Community Advocacy),
d)
PBHI (Association of Legal Aid and Human Rights of Indonesia).
NGOs
dealing with various aspects of human rights, in accordance with their own
interests and abilities are generally formed prior to the establishment of
Komnas HAM. In implementing the protection and enforcement of HAM, NGOs appear
to be working partners of Komnas HAM. For example, NGOs assist victims of human
rights violations to Komnas HAM. In many regions, NGOs have also grown rapidly
with an interest in human rights and democracy as well as other aspects of
life. For example in Yogyakarta there are approximately 22 NGOs. NGOs in the
Yogyakarta area are some of the branches of the National (National) NGO and
some are independent.
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