Constitutional law expert Bivitri Susanti taking oath virtually at a material judicial review hearing of Law No. 26 of 2000 on Human Rights Court, Monday (1/16/2022). Photo by MKRI/Ifa.

---

Monday, January 16, 2023 | 14:49 WIB

JAKARTA (MKRI) — The progressive ideas of the nation’s founders in 1945 are not only reflected in the Preamble to the Constitution. Debates on human rights also occurred during the sessions of the Investigating Committee for Preparatory Works for Independence in 1945. Such debates also resurfaced during the amendments to the 1945 Constitution in 1999-2002, resulting in articles on human rights, such as Article 28I paragraph (4)—” Protection, improvement, reinforcement, and fulfilment of human rights shall be the responsibility of the state, particularly the government.”

The statement was made by constitutional law expert Bivitri Susanti in her testimony for the Petitioner at the seventh material judicial review hearing of Law No. 26 of 2000 on Human Rights Court on Monday, January 16, 2023, which was presided over by Chief Justice Anwar Usman and the other eight constitutional justices.

Many people in the neighboring countries have undergone torture and fell victim to murders, which occurred systematically and massively. Many of them have taken refuge in their neighboring countries, including in Indonesia.

“This must speak not only to our humanity, but to Indonesia’s responsibility as a country. Not only should the victims be cared for, but the human rights violations in Myanmar must also be stopped according to existing legal mechanism. However, law enforcement is difficult to do in Myanmar due to two factors. First, the perpetrators are part of the military junta in power. Second, Myanmar is not a member of the human rights court [nor has it ratified] international criminal law,” she added.

She believes that the issue must be seen outside of the perspective of bilateral diplomacy, but of human rights law. The human rights court in Indonesia is an ideal legal space to take on the state’s responsibility in human rights. Therefore, the a quo case highlights the parties that may be involved in human rights cases in Indonesia.

State Obligation

Bivitri further explained that one of the state’s obligations to victims and society is to reveal facts and circumstances pf massive and systemic human rights crimes, including the perpetrators and masterminds. The state’s responsibility is focused on human rights crimes such as torture, genocide, disappearances, war crimes, and/or crimes against humanity.

“The obligation is borne by the relevant countries, but what if the state is controlled by perpetrators of those crimes? It would be impossible for the state to fulfill its obligation, especially if the administration under the perpetrators of human rights crimes is relatively stable. Of course, it will take a long time to hold the state accountable. However, the obligation should not only be borne by the country where human rights crimes occur but also by neighboring countries, including Indonesia, and the world for the sake of humanity,” she explained. 

Classification of Rights in the 1945 Constitution

The 1945 Constitution, Bivitri explained, mention two types of constitutional rights: human rights and the citizens’ rights. The state has the responsibility to respect, fulfill, and protect the human rights of all people, wherever they come from.

Meanwhile, the citizens’ rights of are privileges granted specifically to Indonesian citizens. The distinction of rights in the 1945 Constitution is usually preceded by the word “everyone” to explain that it is a human right for which the state is responsible. For example, Article 28A of the 1945 Constitution, which reads, “Everyone shall be entitled to live and maintain their life.”

Meanwhile, the word “every citizen” is a provision that explains the state’s responsibility to its citizens, for example, Article 28D paragraph (3) of the 1945 Constitution, which reads, “Each national shall be entitled to obtain an equal opportunity in the government.” The grouping of constitutional rights in the 1945 Constitution can explain the constitutional perspective on Indonesia’s responsibility in dealing with international human rights crimes, including against perpetrators of human rights crimes across national borders. In the Preamble to the 1945 Constitution, it is clear that Indonesia is positioning itself as a country that “participates in carrying out world order.”

Related to Myanmar, the Constitution even have a clear provision in Article 28I paragraph (1) (“Rights to live, not to be tortured, ... shall be human rights that cannot be reduced in any condition”) and paragraph (2) (“Everyone shall be entitled to be free from any discriminative treatment based on anything and obtain protection from the discriminative treatment”). This provision makes it clear that the Indonesian Constitution aims to protect the rights of everyone, including foreign nationals. 

Human Rights Protection and Enforcement in Indonesia

Bivitri explained that state’s responsibility to uphold human rights is very clear in the Constitution, especially Article 28I paragraph (4) of the 1945 Constitution, which reads, “Protection, improvement, reinforcement, and fulfilment of human rights shall be the responsibility of the state, particularly the government.” So, the state has a constitutional obligation to protect human rights, including in the case of Myanmar. Even though the 1945 Constitution contains clear protection of the human rights for every person, the laws and regulations contain technical provisions that impede it.

“There are at least two laws on which protection of human rights in Indonesia is based on, that is, Law No. 39 of 1999 on Human Rights and Law No. 26 of 2000 on the Human Rights Court. The two laws regulate very broad protections of human rights. Even in Article 5 paragraph (1) of the Human Rights Law, every person who experiences human rights violations has the right to sue and to obtain equal protection before the law in accordance with human dignity. This provision is granted to everyone, meaning to anyone regardless of their citizenship,” she said.

She also explained that Article 5 paragraph (2) of the Human Rights Law ensures that everyone has the right to receive assistance and fair protection from an objective and impartial court. The enforcement of the protection of human rights become an issue because there are restrictions determined by the Human Rights Court Law, whose Article 5 stipulates its court proceedings are only for Indonesian citizens, including in crimes committed outside Indonesia’s territory.

The phrase “by Indonesian citizens” means that perpetrators of human rights crimes outside Indonesia’s territory, whose perpetrators or victims are foreign nationals, cannot be tried in Indonesian courts. It would be an issue if the perpetrators frequently visit Indonesia for various non-diplomatic interests while the victims hope to be able to file petitions to the Indonesian court system because of the human rights protection that is granted to everyone as stipulated in the 1945 Constitution and the Human Rights Law. Moreover, it would be impossible for the victims to demand justice from the state and court of their counties of origin if the perpetrators were powerful entities where it would not be impossible for the state to be involved in the violation. Perpetrators of human rights violations should at least be wary of entering Indonesian territory because Indonesian law can prosecute them for violating the Constitution, which protects the human rights of all people. Indonesian law recognizes the protection of human rights for everyone regardless of citizenship, including against gross human rights violations.

At the end of her expert testimony, Bivitri concluded that such a construction of the 1945 Constitution requires the Constitutional Court’s correction of the Human Rights Court Law so it would follow the Constitution and also regulate how human rights other than for citizens are upheld in Indonesian law.

Also read:

Boundaries of Human Rights Court Questioned

AJI Revises Legal Standing in Case on Human Rights Court Law

President’s Counsel Asks Hearing on Human Rights Court Law Be Delayed

House’s View on Court on Gross Human Rights Violations

Govt Affirms State’s Responsibility in Cases of Gross Human Rights Violations

The case No. 89/PUU-XX/2022 on the material judicial review of Law No. 26 of 2000 on Human Rights Court was filed by Marzuki Darusman, Muhammad Busyro Muqoddas, and the Alliance of the Independent Journalists (AJI) (Petitioners I-III).

At the preliminary hearing on Monday, September 26, 2022, the Petitioners argued that the phrase ‘by an Indonesian citizen’ in Article 5 of the Human Rights Court Law had eliminated the state’s responsibility to keep world peace, as the 1945 Constitution mandated, and eliminated the state’s responsibility in crimes in which another state is involved.

The current political situation in Myanmar is still in disarray after the military declared a state of emergency. Gross human rights violations have been committed and are still ongoing.

Under the limits of Article 5 of the Human Rights Court Law, victims of human rights violations in Myanmar would find it difficult to fight for their constitutional rights. Myanmar citizens cannot petition the International Criminal Court because Myanmar did not sign the Rome Statute. It would also be impossible for a country such as Myanmar with its military junta to establish a human rights court to try their officials who have committed human rights violations. The Petitioners believe there has been a legal vacuum in the case of gross human rights violations in Asia, so there needs to be a way to protect citizens, not only of Myanmar but also of ASEAN in general, so that they could have the right to personal defense.

Therefore, in the petitum, the Petitioners requested that the Court grant the entire petition and “declare the phrase ’by an Indonesian citizen’ in Article 5 of Law No. 26 of 2000 on Human Rights Court unconstitutional.”  

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 1/17/2023 13:26 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.

---