Deputy Chief Justice Aswanto speaking at a webinar on “The Constitutionalism of Human Rights in the Framework of NKRI” organized by the Law Faculty of Tadulako University in Palu, Central Sulawesi, Saturday morning (12/6/2021). Photo by Humas MK/Panji.
Saturday, June 12, 2021 | 20:42 WIB
JAKARTA, Public Relations—Deputy Chief Justice of the Constitutional Court (MK) Aswanto delivered an online lecture on “The Constitutionalism of Human Rights in the Framework of NKRI” for the Law Faculty of Tadulako University on Saturday afternoon, June 1, 2021.
Justice Aswanto explained the three constitutions that applied in four periods within Indonesia’s history. The first period spanned from August 18, 1945 to December 27, 1949, in which the 1945 Constitution first applied. The second spanned from December 27, 1949 to August 17, 1950, in which the Constitution of the Republic of the United States of Indonesia (RIS) applied. The third spanned from August 17, 1950 to July 5, 1959, in which the Provisional Constitution (UUDS) of 1950 applied. The fourth spanned from July 5, 1959 until the present day, in which the 1945 Constitution has been amended four times in 1999 to 2002.
In the first period, the Constitution was seen not to have accommodated all aspects of the national and state life because it hadn’t guarantee human rights optimally, which were seen to be the spirit of the era. A debate arose until the Constitution of RIS was applied.
“Theoretically, a state that stray from the spirit of the era will be crushed by the era. Whoever abandons the spirit of the era will be left out by the era. The issue of human rights is very basic, not only for Indonesia but also humanity,” Justice Aswanto stressed.
However, the same debate arose regarding the 1949 Constitution of RIS, especially on women’s rights. It was then declared null and void and replaced by the Provisional Constitution of 1950.
“A debate arose again on human rights in UUDS 1950. Because it wasn’t resolved, President Soekarno declared the return to the 1945 Constitution. That was the fourth period of the constitution from July 5, 1959 until today,” Justice Aswanto said.
He added that in order to provide a legal basis for human rights, the 1945 Constitution was then amended four times in 1999 to 2002, which resulted in Articles 28A to 28J. This solved the issue of the mix-ups between human rights and constitutional rights in several previous articles.
Constitutionalism of Human Rights
Justice Aswanto explained that constitutional rights are the rights that are guaranteed and protected by the Constitution. These rights are regulated in Articles 28A to 28J of the 1945 Constitution post-amendment.
Meanwhile, human rights, he said, are different from basic rights. The term “human rights” comes from Mensen-Rechten, the rights that every person has as a human being. Meanwhile, the term “basic rights” comes from Grond-Rechten, the rights that every person has as the citizen of a state.
“There was a debate on that. From the philosophy of human rights, there are basic differences of human rights Mensen-Rechten and basic rights Grond-Rechten. Theoretically, constitutional rights are obtained for being the citizen of a state. Therefore, Grond-Rechten is constitutional rights or basic rights, which become rights because they are regulated in the constitution. Meanwhile, human rights must be protected despite no mention in the constitution,” Justice Aswanto explained.
He said that whether human rights are regulated in the constitution or not, they must be respected as they are obtained by humanity as God’s creations. However, only humans have them. Human rights in Indonesia, he said, are mixed between those obtained from God and the state. God-given rights or Mensen-Rechten must be respected, regardless of its regulation in the constitution.
“However, in [the 1945 Constitution], the issues of Mensen-Rechten are regulated in our Constitution, so it regulates both human rights and basic rights,” he said.
Universal Declaration of Human Rights
Justice Aswanto then explained the birth of the Universal Declaration of Human Rights (UDHR). Post-World War II, world thinkers were concerned that the losing countries, such as Japan, would consolidate a counterattack.
“Human rights are essentially compassion. In Islam, a hadith puts forth a principle that one’s faith is not complete until they love their brothers [in humanity] as much as they do themselves,” he said. In addition, one must practice empathy in implementing human rights.
“If we implement human rights in our daily lives, the world will be safe. No one will hurt each other. No one will take what doesn’t belong to them. There will be no slander, et cetera,” he added.
Justice Aswanto also said that human rights also essentially mean freedom, but it is limited by the freedom of others. Although our freedom is God-given, we shouldn’t infringe on someone else’s.
Maintaining NKRI
Justice Aswanto also explained that maintaining the Unitary State of the Republic of Indonesia (NKRI) could be by guaranteeing, upholding, protecting, and promoting human rights. “Articles 28A to 28J of the 1945 Constitution have guaranteed human rights. To uphold human rights, we even have Law No. 26 of 2000 on the Court of Human Rights,” he said.
He also explained the definition of a state. There are many theories on the emergence and collapse of states. One of them concerns governments. “I always offer a simple example. The state is akin to an arisan [rotating savings and credit association in Indonesian culture through a social gathering]. Someone joins an arisan with an expectation. However, when the organization cannot meet the members’ expectations, it has already collapsed,” he said.
Justice Aswanto also talks about civil rights—which include rights to a full living, to a fair court process—as well as socioeconomic and cultural rights.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/15/2021 18:17 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Saturday, June 12, 2021 | 20:42 WIB 295