Legal Literacy - This article critically and comparatively analyzes Human Rights in the national and international order through the perspective of constitutionalism. Let's take a look at the explanation below.

Human Rights (HAM) are values and norms that guarantee and recognize that every human being can enjoy fundamental rights and freedoms inherent in their nature and existence as human beings.[1] The concept of Human Rights that emphasizes its inherent nature in humans has a similar concept to Human Rights outlined by the national legal system. The concept of Human Rights as explicitly stated in Law No. 26 of 2000 Article 1 paragraph (1) not only emphasizes the "inherent" nature but also has a transcendental dimension.

The transcendental dimension in the concept of Human Rights in Indonesia is influenced by the Indonesian constitutional system which does not adhere to the principle of separation or separation from religion. Article 29 paragraph (1) of the 1945 Constitution affirms the state's position and attitude that does not separate religion from the state order. Religion as a metaphysical aspect has become ingrained in the social order of Indonesian society. It is logical and rational that the concept of Human Rights adopted by the Indonesian legal system is Human Rights with a transcendental dimension.

This transcendental dimension of the concept of Human Rights is firmly outlined by the Constitution in Article 28J paragraph (2) as the closing article in Chapter XA on Human Rights. In the article a quo, the concept of Human Rights with a "free" dimension can still experience limitations. One of the parameters for limiting Human Rights in the article a quo is religious values. The central and crucial position of religion as a parameter shows the characteristics of Indonesia's intrinsic values that are different from other nations and countries as a religious nation.

The juridical logical implication is that not all concepts of Human Rights are legitimized in the view of national law. The concept of Human Rights with a humanistic-anthropocentric dimension will not be legitimized and the state is prohibited from granting dispensations or exceptions. The granting of dispensations by the state in this case indicates inconsistency and a form of betrayal of the constitution.

A Word of Introduction to Human Rights from an International Perspective

The definition and concept of Human Rights (HAM) recognized by the international community are Human Rights as outlined in the Universal Declaration of Human Rights (UDHR). This declaration, ratified by the UN General Assembly on December 10, 1948, is the initiator of instruments for respecting, protecting, and fulfilling Human Rights in the arena of international law. Although the declaration does not have binding legal force, it still has strong moral pressure. This is evidenced by the adoption of the declaration as a parameter for evaluating the enforcement, protection, and fulfillment of Human Rights by the majority of countries in the world.

Human Rights in the perspective of the declaration are conceptualized as freedom and equality inherent in humans absolutely. Every human being is born free and has inherent dignity and equality and rights that cannot be revoked or inalienable. Every human being is endowed with reason and conscience. These inherent rights must be given in full without differentiation caused by race, color, religion, and other status.

This declaration was accepted without any dissenting votes, although some countries did not express an opinion or abstained. These countries were the Byelorussian Soviet Socialist Republic, Czechoslovakia, Poland, Saudi Arabia, the Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics, the Union of South Africa, and Yugoslavia. The attitude and position of abstention of these eight countries did not prevent this declaration from becoming the starting point for the birth of a legal face that is friendly and amicable to Human Rights. This is evidenced by the adoption of the International Covenant by the UN General Assembly on December 16, 1966 as a follow-up to the declaration.[2]

On December 16, 1966, the UN General Assembly adopted and ratified two covenants as international instruments in the field of Human Rights, namely International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). Although the two covenants were ratified on December 16, 1966, the two covenants came into effect 10 years later. ICCPR came into effect on March 23, 1976, while ICESCR took effect on January 3, 1976.[3] As a follow-up UDHR, the two covenants regulate specific matters and there is integration between the two. With the two covenants and the declaration UDHR that initiated it, the prospect of unifying the conception of Human Rights and law enforcement of Human Rights is projected to gain clarity.

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