THE LIMITATION OF NON DEROGABLE RIGHTS
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Pursuant to Article 28J Paragraph (2) of the 1945 Constitution, the application of the right to live, which is protected by Article 28I of the 1945 Constitution and is one of the non derogable rights, apparently can be derogated or limited by a law.

The abovementioned opinion was expressed by former members of Ad Hoc Working Committee I of the People’s Consultative Assembly, Patrialis Akbar, S.H. and Drs. Lukman Hakim Syaifuddin in the hearing for judicial review of the provision on capital punishment Law Number 22 Year 1997 regarding Narcotics (Narcotics Law) against the 1945 Constitution on Wednesday, May 23 2007 in the court room of the Constitutional Court.

Patrialis further added that the limitation of the right to live – such as through the application of capital punishment - is merely intended to guarantee the recognition and respect for the rights and the freedom of other persons as well as to fulfill a fair claim in relation to moral considerations, religious values, security, and public order in a democratic community. â€œThis matter has been clearly indicated in Article 28J Paragraph (2) of the 1945 Constitution,” Patrialis explained.

In addition to Patrialis statement, Lukman Hakim stated chronologically that the basic reason for the inclusion of provisions on Human Rights in the 1945 Constitution is based upon the Decree of the People’s Consultative Assembly Number 17 Year 1998 regarding Human Rights as well as Law Number 39 Year 1999 regarding Human Rights (Human Rights Law), which are then adopted into Chapter XA of the 1945 Constitution ratified in the second amendment of the 1945 Constitution on August 18 2007. The draft provisions were not only discussed by the Ad Hoc Committee I but also by the Commission A comprising more members of the Assembly in order to achieve more comprehensive results,” he remarked.

In addition to his statement, Lukman said that the limitation stipulated in Article 28J of the 1945 Constitution is in line with the fundamental spirit of the Assembly Decree Number 17 Year 1998 and Human Rights Law Human Rights can not be exercised as free as possible but shall be limited by law. “ As a result, only law shall limit the exercise of one person rights and freedom,” Lukman explained while at the same time he quoted the Elucidation of Articles 4 and 9 Paragraph (1) of the Human Rights Law stating that the right to live may subject to limitation in case of capital punishment and abortion.

As a response to Lukman’s statement, the Attorney in the Case Number 22/PUU-V/2007 Ir. Alexander Lay, S.H., LLM. stated that the elucidation of the articles quoted by Lukman has gone beyond its function as an elucidation. According to Lay, an elucidation of an article must not exceed or limit the definition provided in the article. This is regulated in Law Number 10 Year 2004 regarding the Making of Laws and Regulations. “Furthermore, an elucidation is not a binding provision,” Lay explained.

On the same occasion, the Constitutional Justice Prof. Dr. H. M. Laica Marzuki, S.H. raised the question as to why a mere law can derogate the human rights, as provided in the 1945 Constitution which constitute constitutional rights or given rights based on grundgezets.

As a response to the question, Lukman Hakim Syaifuddin and Patrialis Akbar shared a similar answer that the limitation imposed by the law itself is an order from the 1945 Constitution. “Therefore, Article 28J does not only provide a list of obligations but it is also a key article from Chapter XA on Human Rights,” Akbar stated.

Patrialis stated further that when he read articles on human rights protection in the 1945 Constitution must not be done separately or per article but comprehensively, thus all of human rights freedom provided for in Article 28A to Article 28I, shall be limited by the Elucidation of Article 28J. The statement also indicates that even the provision of Non Derogable Rights could be limited. (Wiwik Budi Wasito)


Wednesday, May 23, 2007 | 13:16 WIB 211