What is interesting about these international declarations and covenants is that the Human Rights evaluation parameters used are based on humanistic values and are anthropocentric in dimension. The values used in constructing Human Rights and the rules in the declaration and covenant are not transcendental or theocentric in dimension. This can be seen in Article 1 UDHR in defining human freedom.

In Article 1 UDHR, human freedom and rights are defined as attributes inherent in their existence as human beings. The freedom and rights they obtain are not portrayed from a theocentric point of view, namely a gift from God. Humans are presupposed to obtain their freedom and rights after they are born as humans without any gift from anyone, even from God. Thus, it is clear that the value used as the basis for the construction of Human Rights in international legal discourse is the value of humanism, which is anthropocentric in dimension.

Comparison of Human Rights from National and International Perspectives

The two concepts of Human Rights above, national and international perspectives, which are diametrically opposed, naturally give rise to distinctions in the application of these Human Rights in the field. Just as two buildings have different foundations, it is certain that asynchronization will occur in a concrete case. The asynchronization that occurs can take the form of confusion in legal and social matters in the midst of society.

One form of asynchronization in legal matters is the application of limitations on Human Rights. Limitations on Human Rights from an international perspective intersect with limitations on Human Rights from a national perspective. The distinction between the two occurs in the use of test parameters for these limitations. The use of different test parameters will affect the concept of Human Rights because this determines the extent to which Human Rights can be subject to limitations.

Limitations on Human Rights from an international perspective do not use religion as a test parameter. The test parameters used are limited to morality, which in some concepts differs from religion. One of the reasons is that the concept of religion is too subjective and open to multiple interpretations compared to morality. Meanwhile, international declarations and covenants demand the universality of values and test parameters used to create a comprehensive legal order.

Heiner Bielefeldt mentions that this discourse, which does not include religion, is oriented towards creating and maintaining distance (creating and upholding a distance). The separation between religion and the state is necessary to provide breathing space for the spirit of freedom and equality to flourish amidst diversity. The state is positioned as a guardian whose duty is to provide guarantees for the security of religion and must not confine it.[4]

In addition to legal matters, the asynchronization between Human Rights from a national and international perspective is in social matters. In social matters, what is upheld are noble values that have taken deep root in the culture of society. In Indonesian society's culture, these values have sharp distinctions from foreign values contained in Human Rights from an international perspective. A concrete example is the existence of integration between individuals in society.

The culture that is ingrained in Indonesian society is an integral culture, the fusion of individuals into one social unit. Indonesian society is accustomed to fusing itself into the social order so that the boundaries between individuals become blurred. The culture of mutual cooperation is one proof of integration that is de facto occurring in the midst of Indonesian society.

By looking at these empirical realities, the distinction between the values adopted in Indonesian society and those adopted by the international world is clear. Indonesian society, which is accustomed to merging with a sense of integration between individuals, will not be in harmony with international society, which is accustomed to separating itself with a sense of individualism. The logical consequence is that these different values will not be able to enter and be fully accepted by Indonesian society. Similarly, Human Rights, which are constructed on the basis of values that do not originate from intrinsic Indonesian values, but from the West, will not be fully accepted by Indonesian society.

The Position of Constitutionalism on Human Rights

After explaining the issues and topics regarding Human Rights from a national and international perspective, a question arises in the author's mind. Is the existence of these Human Rights in line with the understanding of constitutionalism in highlighting the law? Is there an intersection that occurs between Human Rights and the constitution as the formal container for the substantial material of the state? The following will explain the position of constitutionalism

The understanding of constitutionalism has evolved from the pre-modern to the modern era, after the French Revolution. The origins of this understanding are the fruits of Greek philosophical thought, represented by Plato and Aristotle, which emphasize the existence of a constitution as a reference for laws. The legal norms that will be poured into the law must be in accordance with the constitution, Aristotle calls it “Politea”, in order to create a systematic legal order.[5]

A systematic legal order is necessary so that the social order regulated by the law does not experience chaos or chaos. Chaos in the realm of legal order can have implications for the disruption of the social order. This chaos can be overcome by basing the valuation of the systematization of law on a supreme agreement. The supreme agreement is poured into the form of a constitution.[6]

The constitution, as the highest agreement in society, contains rules that govern the life of the state by upholding the principle of rule of law. This principle is oriented towards governance driven by law, rule by the law not by the man. With this principle, absolute power will be limited to prevent the birth of authoritarian power.

Constitutionalism highlights the constitutional system with strict restrictions to prevent abuse of power, abuse of authority. These strict restrictions are oriented towards fulfilling the rights of citizens as opposition to rulers who have the potential to abuse their authority. There are three main pillars that can guarantee the enforcement of this constitutionalism. These three pillars are:

  1. Agreement on the goals and acceptance of the state philosophy.
  2. Agreement on the rule of law as the basis for the administration of government.
  3. Agreement on the forms of institutions and constitutional procedures.[7]

By looking at the presentation of issues and topics regarding constitutionalism above, it can be clearly seen that there is an urgency of the constitution in upholding human rights. The constitution as a container of formal legal order is oriented towards restricting power in order to protect citizens from abuse of power. This guarantee has intersections with human rights, which demand respect, protection, and fulfillment.

This guarantee is also affirmed in the constitution as a mandate of constitutionalism. Referring to the Indonesian constitution, this guarantee is clearly outlined in Chapter XA on Human Rights, which has 10 articles. All of these articles comprehensively and holistically provide state guarantees for human rights in accordance with Indonesia's intrinsic values. The construction of the articles on human rights above Indonesia's intrinsic values is intended so that Indonesian society can accept human rights as regulated in the Indonesian constitution.

Conclusion

Human rights have different concepts and definitions from one another. This difference can arise because the values as the basis for the construction of these human rights are also different. This difference should not become a spark of fire because whatever the concept of human rights that applies, the orientation remains the same, namely upholding human dignity. In addition, the concept of human rights has intersections with constitutionalism, which is adhered to by the majority of countries in the world. This understanding carries the concept of restricting power to guarantee citizens, which is one of the orientations of human rights. Indirectly, maintaining the constitution indirectly means maintaining human rights.

References

  • Asshiddiqie, J. (2009). Introduction to the Science of Constitutional Law. Depok: Rajawali Pers.
  • Atmadja, I. D. (2010). Constitutional Law: Problems of the Indonesian Constitution After the Amendment of the 1945 Constitution. Malang: Setara Press.
  • Republic of Indonesia. (2002). The Constitution of the Republic of Indonesia. Amendment IV.
  • Republic of Indonesia. (2000). Law Number 26 of 2000 concerning the Human Rights Court . State Gazette of the Republic of Indonesia of 2000 Number 208, Supplement to the State Gazette of the Republic of Indonesia Number 4026. State Secretariat. Jakarta.
  • Smith, R. K. (2005). Textbook on International Human Rights. New York: Oxford University Press.
  • Sochmawardia, H. A. (2013). Racial Discrimination in Human Rights Law: A Study on Discrimination Against Chinese Ethnic Groups. Bantul: Genta Publishing.
  • Tomte, A., Saul, M. W., Fraser, J., Putro, W. D., RIyadi, E., Wiratraman, H. P., . . . Shidarta. (2023). Human Rights Law Methodology: Reasoning, Practice, and Challenges in the Indonesian Justice System. Depok: Rajawali Pers.

[1] (Sochmawardia, 2013), page 37

[2] (Smith, 2005), page 39

[3] Ibid. page 46

[4] (Tomte, et al., 2023), page 177

[5] (Atmadja, 2010), page 14

[6] (Asshiddiqie, 2009), pages 345-346

[7] (Atmadja, 2010), page 19