Non-Derogable Rights in Indonesia: Between Constitutional Guarantees and the Political Reality of Power

Legal Literacy - Human rights are inherent rights that are vested in every individual from birth, which cannot be revoked or diminished by the state under any circumstances [1]. Among these various rights, there is a special category called non-derogable rights, which are absolute rights that cannot be restricted, suspended, or reduced, even in a state of emergency. This principle has a strong foundation in various international human rights instruments, such as the Universal Declaration of Human Rights (UDHR) 1948 and the International Covenant on Civil and Political Rights (ICCPR) 1966. Specifically, Article 4 of the ICCPR affirms that fundamental rights—such as the right to life, the right to freedom from torture, and freedom of religion—may not be derogated from even in a public emergency that threatens the life of the nation [2]. As a state party to the ICCPR, Indonesia has ratified the covenant through Law Number 12 of 2005. At the highest level, recognition of non-derogable rights is explicitly reflected in Article 28I paragraph (1) of the 1945 Constitution:

“The right to life, the right not to be tortured, the right to freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person before the law, and the right not to be prosecuted on the basis of retroactive law are human rights that cannot be reduced under any circumstances.” [3]

This constitutional guarantee demonstrates the state's formal commitment to placing absolute rights as an integral part of its national legal system [4].

Analysis: Legal Guarantees of Non-Derogable Rights in Indonesia

Constitutional Basis: The Strength of Article 28I of the 1945 Constitution

The principle of non-derogable rights in Indonesia has a very strong legal foundation. Article 28I paragraph (1) of the 1945 Constitution explicitly mentions which rights cannot be reduced under any conditions [6]. This provision places absolute rights at the highest hierarchy as a constitutional norm (constitutional supremacy). This means that no laws or state policies can override them, even in emergencies.

Harmonization with International Law: The Role of the ICCPR

Indonesia's commitment is strengthened through the ratification of the ICCPR with Law Number 12 of 2005. This ratification obliges the state to align its national regulations with international human rights standards. In practice, the ICCPR strengthens the position of Article 28I of the 1945 Constitution as the juridical basis for the protection of absolute rights and becomes an important reference in the mechanism judicial review in the Constitutional Court [7].

Global Best Practices: Learning from Germany and South Africa

In comparison, some countries demonstrate best practice in protecting absolute rights. Germany, through its Basic Constitution (Grundgesetz), makes human dignity an "eternal clause" (eternal clause) that cannot be amended [8]. Meanwhile, South Africa stipulates non-derogable rights explicitly in the Bill of Rights of the 1996 Constitution, which prohibits the suspension of the right to freedom from torture and slavery even during a state of emergency [9].

Implementation Challenges: The Gap Between Norms and Practices

Despite having a strong normative foundation, implementation non-derogable rights in Indonesia still faces serious challenges on the ground.

The Alibi of a State of Emergency: Terrorism and Pandemic as Tests

Restrictions on rights often occur through regulations made under the guise of a state of emergency. Law Number 5 of 2018 concerning the Eradication of Criminal Acts of Terrorism, for example, expands the authority of law enforcement to make arrests without adequate due process, potentially violating the right to liberty [10]. A similar situation was seen during the Covid-19 pandemic response, where restrictions on mobility and freedom of opinion were carried out massively, often without clear proportionality testing [11].

Classic Problems: The Death Penalty and Security Apparatus Violence

Violations of the right to life still occur, both through the ongoing practice of the death penalty and through state violence in conflict areas such as Papua. On the other hand, practices of torture and criminalization of freedom of opinion are still frequently found in Komnas HAM reports, especially in handling demonstrations or agrarian conflicts. This phenomenon shows a gap between constitutional norms and reality on the ground, which is exacerbated by the weakness of the human rights judiciary and a culture of impunity [12].

The Shadow of Impunity and Political Intervention

Political power factors are often the main obstacle to enforcement non-derogable rights. The executive and legislative branches often use the pretext of national security to form policies that weaken human rights protection, such as the revision of the ITE Law. In practice, national security politics often prioritizes the state as the dominant actor. This approach is contrary to the principle of the rule of law (rule of law), which should make human rights a clear limitation on state power [13].

Rebuilding Human Rights Protection: A Recommendation

To strengthen the protection of absolute rights, strategic reconstructive measures are needed.

1. Strengthening Judicial Review: The Constitutional Court must be at the forefront of testing any regulation that potentially violates non-derogable rights, with strict testing standards referring to the principle of jus cogens and the ICCPR.
2. Expansion of the Mandate of Human Rights Institutions: Komnas HAM (National Human Rights Commission) must be given a stronger mandate so that its recommendations have legally binding power. In addition, the strengthening of the Human Rights Court ad hoc is essential to break the chain of impunity.
3. Harmonization of National Law: Regulations that risk restricting absolute rights, such as the Terrorism Law and the ITE Law (Electronic Information and Transactions Law), need to be revised to align with Indonesia's obligations as a state party to the ICCPR (International Covenant on Civil and Political Rights).

Conclusion

Formally, Indonesia already has a solid legal foundation to protect non-derogable rights, both through the constitution (Article 28I paragraph (1) of the 1945 Constitution) and the ratification of international instruments. However, the implementation is still far from expectations. The politics of power and the pretext of a state of emergency are often used to legitimize restrictions on rights that should be absolute. This gap between norms and practices signifies the state's weak commitment to making human rights a limit to power. Therefore, a reconstruction of legal politics is needed to ensure non-derogable rights truly functions as the main protector (ultimate safeguard) against potential abuse of state power.

Suggestion

1. Regulatory Reform: The government and the DPR (House of Representatives) need to immediately review laws that have the potential to restrict absolute rights in order to comply with international human rights standards.
2. Strengthening Independent Institutions: The authority and independence of Komnas HAM, the Human Rights Court ad hoc, and the Constitutional Court must be strengthened so that they can act without political intervention.
3. Increased Public Awareness: Advocacy by civil society and human rights education must continue to be encouraged to build a legal culture that places respect for human rights as a top priority.

Bibliography

[1] Mathew, L. (2019). Jatindra Kumar Das (2016) Human Rights Law and Practice. New Delhi, PHI Learning Private Limited. International Journal for Crime, Justice and Social Democracy. [2] Manfred Nowak. (2005). U.N. Covenant on Civil and Political Rights: CCPR Commentary. Kehl am Rhein: Engel. [3] Negara, H. T. Almond, Gabriel A & Verba, Sidney, 1990, Political Culture, Jakarta: Bina Aksara. Asshiddiqie, Jimly, 2005, Constitutional Law and Pillars of Democracy, Jakarta: Konstitusi Press [4] Efendi, J., & Lutfianingsih, F. F. (2020). Non-Derogable Rights in Indonesian Laws and Regulations. [5] Mahfud, M. (1998). Legal politics in Indonesia. [6] Asshiddiqie, J., Revisi, E., & RI, K. M. K. (2006). Political Parties and General Elections as Instruments of Democracy. Journal, 6. [7] Suhariyanto. (2020). “Non-Derogable Rights in the Perspective of the Indonesian Constitution.” Journal of Human Rights [8] Alexy, R. (2002). A Theory of Constitutional Rights. Oxford University Press [9] Currie, I., & De Waal, J. (2013). The Bill of Rights Handbook. Cape Town: Juta. [10] Amnesty International. (2021). Indonesia: Human Rights Concerns in the Fight Against Terrorism. [11] Komnas HAM. (2022–2023). Annual Report of Komnas HAM. Jakarta [12] Al Araf. (2017). “Human Rights Violations and the Politics of Power in Post-New Order Indonesia.” Jurnal Hukum & Pembangunan [13] Mahfud MD. (2011). Politics of Law in Indonesia. Jakarta: Rajawali Pers.