Former chief justice of the Constitutional Court of 2003-2008 Jimly Asshiddiqie speaking at the virtual constitution awareness program for citizens (PPHKWN) for Formasi Disabilitas virtually, Wednesday (7/13/2022). Photo by Humas MK/Teguh.

---

Wednesday, July 13, 2022 | 19:09 WIB

JAKARTA, Public Relations—The constitution awareness program for citizens (PPHKWN) for the inclusive forum for persons with disabilities Forum Masyarakat Pemantau Untuk Indonesia Inklusif Disabilitas (Formasi Disabilitas) continued on the second day on Wednesday, July 13, 2022. It was organized by the Constitutional Court (MK) through the Court’s Pancasila and Constitution Education Center (Pusdik MK). Former chief justice of the Constitutional Court of 2003-2008 Jimly Asshiddiqie, former constitutional justice of 2008-2018 Maria Farida Indrati, Head of the Public Relations and National Affairs Department Fajar Laksono, and Director of LBH Disabilitas (a legal aid institute for persons with disabilities) Hari Kurniawan.

Jimly, who is also a senator, delivered a presentation on “The Constitution and Rights of Persons with Disabilities.” He said Article 27 of the 1945 Constitution concerns the status and rights of citizens, while Article 28 concerns guarantee of human rights.

“Most of the material in the 1945 Constitution is articles on human rights. For example, an article that states that every person has the right to live and maintain their life and livelihood. So, [it says] ‘everyone,’ not ‘every citizen.’ No discrimination on the basis of gender, religion, ethnicity, nationality, and so on. Basically, [everyone] has the right to live and maintain his life and livelihood,” Jimly said.

Diffability

Jimly asserted that ‘every person’ includes persons with disabilities, or more appropriately persons with diffabilities. “’Disables’ signifies incompetence, while ‘diffability’ signifies difference. So, now human rights activists using the word ‘diffability’ rather than ‘disability,’” he explained.

Article 28H paragraph (2) of the 1945 Constitution also stresses that everyone has the right to facilities and special treatment to obtain the same opportunities and benefits in order to achieve equality and justice. So, basically, Jimly said, everyone should be treated the same. It is possible to issue an affirmative action or affirmative policy as a policy to provide special treatment for people who have certain issues or are lagging behind in development. 

Main Ideas of Preamble to 1945 Constitution

Former constitutional justice Maria Farida Indrati and law professor of the University of Indonesia delivered a presentation on “The Main Ideas of the Preamble to the 1945 Constitution.” She said that the constitution of a country is only one part of its basic law. Aside from the constitution, which is a written basic law, there is also unwritten basic law, which emerges and is maintained in the state administration despite being unwritten.

“The Constitution lent to the main ideas of the Preamble to the 1945 Constitution. Those main ideas include the spirituality of the Constitution of Indonesia. These ideas embody the ideals of the law that governs the basic law of the state, both written and unwritten laws,” Justice Maria said.

The main ideas of the Preamble to the 1945 Constitution are the belief in One Supreme God, just and civilized humanity, Indonesian unity, and democracy led by wisdom in deliberation/representation, as well as social justice for all Indonesian people.

Debate on Death Sentence

Fajar Laksono talked about “The Guarantee of Citizens’ Constitutional Rights Based on the 1945 Constitution.” He revealed the debate on death penalty, which Indonesia still recognizes. The legal basis is contained in Article 28I paragraph (1) of the 1945 Constitution, which reads, “The rights to life, to remain free from torture, to freedom of thought and conscience, to adhere to a religion, the right not to be enslaved, to be treated as an individual before the law, and the right not to be prosecuted on the basis of retroactive legislation, are fundamental human rights that shall not be curtailed under any circumstance.”

He revealed that the Court once ruled that the death penalty was constitutional. In 2007, a panel of justices led by Jimly Asshiddiqie did not grant the request of five death row convicts for narcotics cases. They filed a judicial review petition of a number of articles in Law No. 22 of 1997 on Narcotics, in particular the provisions on death penalty. With this decision, death penalty for drug dealers is still enforced in Indonesia.

“A big-time drug dealer illegally trades narcotics, which has extraordinary destructive power, so this cannot be allowed. Article 28J of the 1945 Constitution provides for restrictions stipulated by law and ensures the recognition and respect for the rights and freedoms of others and fulfills fair demands in accordance with considerations of morals, religious values, security, and public order in a society,” Fajar explained. 

State Obligations

Hari Kurniawan gave a presentation on “The Constitution and Disability.” Hari said not all constitutional rights are identical with human rights. For example, the right to occupy positions in government is not a human right, which are universal. Meanwhile, citizens’ constitutional rights of, including of persons with disabilities, are enshrined in Articles 27, 28, 29, 32, and 34 of the 1945 Constitution.

“The state is obligated to realize and fulfill these rights, including the special rights of women and children with disabilities, as regulated in Law No. 8 of 2016,” he added.

Hari asserted that citizens can demand that any policy that violates rights be repealed. If the policy is a law, the petition is filed to the Constitutional Court. If it is a regulation under the law, the petition is filed to the Supreme Court. 

Also read: Chief Justice: Persons with Disabilities Part of All Indonesians

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

Translation uploaded on 7/25/2022 10:50 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.

---