Constitutional Justice Enny Nurbaningsih delivering a public lecture at the Law Faculty of Balitar Islamic University in Blitar, East Java, Saturday (8/20/2021). Photo by MKRI.

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Monday, August 22, 2022 | 11:48 WIB

JAKARTA (MKRI)—Constitutional Justice Enny Nurbaningsih made an official visit to the Law Faculty of Balitar Islamic University in Blitar on Saturday, August 20, 2022. She delivered a public lecture on “The Constitutional Court and the Protection of the Citizens’ Constitutional Rights.”

She began her lecture by revealing the history of constitutional review in Indonesia. During the Investigating Committee for Preparatory Works for Independence (BPUPKI) session Mohammad Yamin proposed that the Supreme Court be given the authority to review laws. The idea was rejected by Soepomo because Indonesia did not follow trias politica and there were not many qualified law graduates at that time.

Then, in the 1970s, the Association of Law Graduates proposed that the Supreme Court be given that authority. Next, the idea was mentioned in the People’s Consultative Assembly Decree (Tap MPR) No. III/MPR/2000 on the Sources of Law and Legislative Hierarchy, in particular Article 5 paragraph (1): “The MPR shall be authorized to review laws against the 1945 Constitution and the MPR Decrees.”

Founding of Constitutional Court

During the constitutional amendment in 1999-2002, the idea resurfaced. Finally, on August 13, 2003, the Constitutional Court of the Republic of Indonesia (MKRI) was established, with the authority to review laws against the Constitution, to settle authority disputes between state institutions, to decide the dissolution of political parties, and to settle disputes over general election results. It is also obligated to decide the House’s opinion on an alleged violation of law or disgraceful act committed by the president and/or vice president. The Court also has an additional authority to settle disputes over regional election results.

The amendment, Justice Enny added, brought changes to the hierarchy of high state institutions in Indonesia. Before, the MPR was the highest state institution. After, it was made equal to other high state institutions such as the House of Representatives (DPR), the Audit Board (BPK), the Constitutional Court (MK), the Supreme Court (MA), etc.

Definition and Regulation of Human Rights

Justice Enny added that Law No. 39 of 1999 on Human Rights defines human rights as “a set of rights bestowed by God Almighty in the essence and being of humans as creations of God which must be respected, held in the highest esteem and protected by the state, law, Government, and all people in order to protect human dignity and worth.”

These rights are mentioned in Tap MPR No. XVII/MPR/1998: respect, enforcement, and dissemination of human rights by the community through community movements on the basis of awareness and responsibility as citizens in the life of society, nation, and state. They are also mentioned in the MPR Decree No. V/MPR/2000 on Consolidating National Unity, Law No. 39 of 1999 on Human Rights, Law No. 26 of 2000 on the Court of Human Rights, Law No. 27 of 2004 on the Truth and Reconciliation Commission (annulled by the Constitutional Court No. 006/PUU-IV/2006), the Politics Law, the Press Law, the Constitutional Court Law, the ratification of international instruments including Law No. 11 of 2005 (the ratification of the International Covenant on Economic, Social and Cultural Rights) and Law No. 12 of 2005 (ratification of the International Covenant on Civil and Political Rights).

Justice Enny explained that the second amendment to the 1945 Constitution had resulted in the provisions of human rights in Chapter XA (Article 28A through 28J).

“The protection of human rights in the original 1945 Constitution was the particularistic human rights of citizens (HAW). Human rights are based on the notion that by nature humans have innate rights that cannot be taken or transferred by anyone, while HAW can only be obtained if a person becomes a citizen of a country,” she explained. She also asserted that constitutional rights are rights that are regulated in the 1945 Constitution, following the elucidation to Article 51 paragraph (1) of Law No. 24 of 2003.

Justice Enny added that human rights are defined as non-derogable rights in Article 28G paragraph (2) and Article 28I paragraph (1) of the 1945 Constitution. They guarantee other people’s rights and freedoms and to fulfill just demands in accordance with morals, religious values, security, and public order in a democratic society.

Consequently, Justice Enny said, this change shows that human rights are recognized as rights inherent in every human, which are different from the citizens’ rights that are granted only to citizens. With the listing in the Constitution, these rights officially become the constitutional rights of every person that must be protected and can be petitioned through the Constitutional Court.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/13/2022 15:52 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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