Chief Justice Anwar Usman with Secretary-General M. Guntur Hamzah, Acting Head of the Pancasila and Constitution Education Center Imam Margono, and Law Faculty Dean of Maranatha University Christian Andersen opening the constitution awareness program for the academic community of Maranatha Christian University, Tuesday (9/14/2021). Photo by Humas MK/Teguh.

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Wednesday, September 15, 2021 | 19:30 WIB

JAKARTA, Public Relations—A constitutional states is bound by a consensus, so constitutionalism can be seen as a perspective of a state based on agreement, said Jimly Asshiddiqie on the second day of the constitution awareness program for the citizens (PPHKWN) for the Maranatha Christian University, Wednesday, September 15, 2021, which the university organized in collaboration with the Constitutional Court (MK).

“As citizens, we have the same rights and obligations. Even though we are citizens of society, we should not be forced to be the same in all respects. As citizens, we may have different beliefs, religions, etc. [We should be] treated differently for things that are special, which require unequal treatment,” he said in his presentation on “The Constitution and Constitutionalism.”

Positive Discrimination

Jimly said Article 28H of the 1945 Constitution talks about affirmative action and affirmative policy. Affirmative action can be treatment for women and underdeveloped customary law communities, who might need special treatment or positive discrimination. They deserve such a treatment from the state. Beyond that, all citizens have the same rights and obligations.

He added that as a judicial body at the first at final level as well as the guardian and protector of the citizens’ constitutional rights, the Court guards the Constitution so that it truly be implemented. For example, in the event that laws are deemed unconstitutional, the Court might repeal them.

“In the case of interagency disputes, the Court arbitrates the parties. It is how the Court exercise its function to guard the Constitution,” said the first chief constitutional justice.

Another function of the Court is guarding democracy. Jimly said democracy tends to prioritize voting, as in elections. However, the majority is not always right nor does it reflect justice and truth. If the majority agrees on something based on evil, they will determine things. “That is the democracy [based on] majority rule,” he said.

He believes the majority rule must be offset by minority rights and judicial decisions, despite only by nine constitutional justices. “The nine constitutional justices may repeal laws that are unconstitutional and against human rights values,” he stressed.

Jimly further explained human rights and citizens’ constitutional rights. The former is rights that all humans have regardless of citizenship. On that note, once, an Australian citizen who received the death sentence filed a judicial review petition of the Narcotics Law to the Court. There was a debate on whether they could do so, but the majority of the constitutional justices believed the 1945 Constitution contains the protection of human rights, which apply to all human beings, so foreign nationals have rights that are protected and guaranteed by the 1945 Constitution.

“Foreign nationals may be a petitioner if they meet the substantive requirements for their constitutional rights, such as the right to live, rights that cannot be reduced in any situation, as mentioned in the 1945 Constitution. The Court accepted the petition although rejected the substance and accepted the legal standing. The ruling shows that the Court allows foreign nationals to be petitioners as long as they challenge human rights,” Jimly stressed.

Some of the citizens’ constitutional rights only concern citizens, not foreign nationals. Article 27 paragraph (2) of the 1945 Constitution mentions explicitly and firmly the citizens’ right to occupation. Each citizen is entitled to proper occupation and livelihood for humanity.

Core of the Preamble to the 1945 Constitution

The next speaker, Jimmy Z. Usfunan in his presentation on “The State Administration System According to the 1945 Constitution,” referred to the main points of the Preamble to the 1945 Constitution. “The first paragraph of the Preamble to the 1945 Constitution reflects Indonesians’ stance that colonization contravenes humanity and justice,” he said.

The second paragraph states what Indonesian struggle, movement, and freedom have safely brought Indonesian people to. “The second paragraph shows the Indonesian nation’s readiness for the independence, to realizing a state that is free, united, sovereign, just, and prosperous,” Jimmy said.

The third paragraph reads, “By the grace of the Almighty God and motivated by a noble intention, for free national life, Indonesian people hereby declare their freedom.” “It shows gratitude to the Almighty God, which shows Indonesians’ piety and closeness to the Almighty God. Thanks to His grace, Indonesian independence was realized,” Jimmy added.

The fourth paragraph reads, “And then to form a Government of the State of Indonesia that protects all Indonesian people and the entire land of Indonesia and to develop the welfare of the people, the life of the nation, and participate in the world orderliness based on freedom, eternal peace and social justice, National Freedom of Indonesia is prepared in a Constitution of the State of Indonesia, formed in a structure of the State of the Republic of Indonesia with people sovereignty based on the One Supreme God, Just and civilized humanity, Indonesian unity and Democracy lead by wisdom in Deliberation/Representation, and by realizing a Social justice to all Indonesian people.”

“The fourth paragraph contains the state and the government’s goal: a state with people sovereignty and government based on Pancasila,” Jimmy stressed.

He then explained the key points of the Preamble according to R.M. A. B. Kusuma in his apostle perspective that include futurology. It is shown in the first and second paragraphs.

“It is the golden bridge of the past that is brought forth as a hope. It is futurology according to R.M. A. B. Kusuma, who quoted the Apostle,” said the constitutional law expert and lecturer at the Law Faculty of Udayana University.

A. B. Kusuma, he explained, also talked about the values in the first through fourth paragraphs of the Preamble to the 1945 Constitution, such as humanity, justice, unity, freedom, and Pancasila values. A. B. Kusuma followed the Apostle notion of praxeology—actions to reach one goal—as mentioned in the fourth paragraph.

Upholding Human Rights

The next speaker, Hesti Armiwulan on the presentation on “The Guarantee of Citizens Constitutional Rights in the 1945 Constitution,” began by explaining the definition of the Constitution of the Republic of Indonesia.

“We referred to the Constitution before the 1999-2002 amendment as the 1945 Constitution. After the amendment, the MPR Decree stressed that the official name of the Constitution is the Constitution of the Republic of Indonesia, 1945,” she said. She also said various laws refer to the Constitution as the Constitution of the Republic of Indonesia.

She said citizens’ constitutional rights are not mentioned in detail in the 1945 Constitution before the amendment, but are mentioned comprehensively after.

She also explained that the Universal Declaration of Human Rights (UDHR) mentions that human rights are interrelated and a unity with basic rights, human rights, ad fundamental freedoms. However, it is often said that human rights are separate from basic freedoms, when she believes that they are, in fact, are the nature of humankind.

“We cannot find this in the 1945 Constitution, but in Article 1 of the Universal Declaration of Human Rights. It states that ‘All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.’ This is the nature of human rights,” Hesti explained.

Meanwhile, the state’s obligation for human rights is mentioned in Article 2 of Law No. 39 of 1999 on Human Rights, in that “The Republic of Indonesia acknowledges and holds in high esteem the rights and freedoms of humans as rights which are bestowed by God and which are an integral part of humans, which must be protected, respected, and upheld in the interests of promoting human dignity, prosperity, contentment, intellectual capacity and justice.”

Then, Article 28I paragraph (4) of the 1945 Constitution states that “Protection, improvement, reinforcement, and fulfilment of human rights shall be the responsibility of the state, particularly the government.” Hesti also explained that the state is also responsible for upholding and protecting human rights in accordance with the principles of democratic constitutional state, the implementation of human rights shall be guaranteed, stipulated, and contained in the legislation.

The Constitutional Court (MK) collaborated with Maranatha Christian University to organize a constitution awareness program for the citizens (PPHKWN), which was officially opened by Chief Justice Anwar Usman on Tuesday evening, September 14, 2021 from the Pancasila and Constitution Education Center, Cisarua, Bogor. The PPHKWN will be taking place for four days on Tuesday-Friday, September 14-17, 2021, where speakers give presentations virtually.

Also read: Chief Justice Opens PPHKWN for UK Maranatha 

Writer        : Nano Tresna Arfana
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/27/2021 11:43 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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