Constitutionalizing Human Rights Universality in Nonconstitutional Legal System: Decoding Indonesian Human Rights Brouhaha

• Author: Pranoto Iskandar
• Position: The Institute for Migrant Rights
• Pages: 1-42

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2014 e Institute for Migrant Rights Press

e initial dra of this paper was rst developed during my sojourn as a visiting scholar

at the Norwegian Centre for Human Rights, University of Oslo. In the process of writing,

I beneted greatly from many invaluable supportive comments from Dean Philip J. Mc-

Connaughay, Professors Frédéric Mégret, Simon Butt, Ron Brown, François Crépeau and

René Provost. Also, I would like to gratefully acknowledge the generous support of McGill’s

Centre for Human Rights and Legal Pluralism, McGill University, under the very able di-

rectorship of Ms. Marika Giles Samson and the technical support of Ms. Sharon Webb that

made it possible for this publication and made me the luckiest person. Additionally, I thank

Ms. Sarah Ingle for her careful reading of this paper.

Constitutionalizing Human rigHts

univErsality in nonConstitutional

lEgal systEm

dECoding indonEsian Human rigHts BrouHaHa

Pranoto Iskandar

e Institute for Migrant Rights

McGill Centre for Human Rights & Legal Pluralism

E-mail: pranotoi@imr.or.id

Not long aer the 1998 political reform (reformasi), there was a high hope that

Indonesia would become a model of democracy for the non-western world. Time

and again, however, Indonesia has made a series of regressive decisions. Suppos-

edly, the focus of any genuinely new eorts of reform must be aimed toward a

liberal democracy, but Indonesia’s reformasi has moved erratically without any

overarching goals. As far as Indonesia is concerned, it has pursued an unusual

trajectory in its democracy-building enterprise. Aside from the fact that this

model is inherently awed, it is, in fact, praised as successful in sustaining nom-

inal democracy. As it stands, Indonesia’s erratic pursuit of democracy has intro-

duced many illiberal elements into its new legal structure, albeit in a democratic

way. As a response, this article attempts to unravel some of the most salient fea-

tures of Indonesia’s current legal discourse. In the process, it critically examines

the Indonesian model of constitutionalism and situates it in the international

legal context. is way of seeing is aimed at disentangling the exceptionality of

Indonesia’s democratic legal system from the traditional insular model that pre-

III Indonesian Journal of International & Comparative Law 1-42 (January 2016)

2

Iskandar

dominates Indonesian legal scholarship. Against all odds, this article nds that

this legal confusion can scarcely be separated from the lack of discussion at the

domestic level about international law.

I. INTRODUCTION

As a former colony, the modern Republic of Indonesia (hereinaer:

Indonesia)1 owes its very existence, at least in part, to the human right

to self-determination.2 However, as a State party to the International

Covenant on Civil and Political Rights (ICCPR)3 and the International

Covenant on Economic, Social, and Cultural Rights (ICESCR),4 Indo-

1. Regarding the complicated nature of the status of the emerging Indonesian

legal personality see Charles Cheney Hyde, e Status of the Republic of In-

donesia in International Law, 49 C. J. I’ L. 955-66 (1949). See also the

articulation of Indonesia’s defence of its independence based on the declarato-

ry nature of recognition in Ali Sastrooamidjojo & Robert Delson, e Status

of the Republic of Indonesia in International Law, 499 C. J. I’ L. 344-61

(1949). See also Justus M. Van der Kroef, e Term of Indonesia: Its Origin and

Usage , 71 J. A. O S’ 166-71 (1951) (discussing the use of the term

“Indonesia” and its surrounding myths).

2. R B, D   E  I

H R 39 (2010) (e link between the Indonesian independence

movement, human rights, and independence can be seen in the insistence of

the ird World countries, including Indonesia, to frame “conventional hu-

man rights were almost always [as] the central justication for recognition of a

right to self-determination.”).

3. International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty

Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171 [hereinaer ICCPR];

Law no. 12 of 2005 (Ratication of the International Covenant on Civil and

Political Rights), Lembaran Negara, Feb. 23, 2006, No. 119 (2005), available at

http://www.komnasperempuan.or.id/wp-content/uploads/2009/07/UU-No-

12-n-2005-ttg-Ratikasi-ICCPR.pdf (Indon.). e Ocial Gazette (Lem-

baran Negara) is the authoritative source for the promulgation of Indonesian

laws.

4. International Covenant on Economic, Social and Cultural Rights, Dec. 16,

1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3 [hereinaer

ICESCR]; Law no. 11 of 2005 (Ratication of the International Covenant on

on Economic, Social and Cultural Rights), Lembaran Negara, Oct. 28, 2005,

No. 118 (2005), available at http://hukum.unsrat.ac.id/uu/uu_11_2005.pdf

(Indon.). It should be noted that Indonesia ratied ICESCR according to UN’s

website on Feb. 23, 2006, the same date of the Indonesia’s ratication of ICCPR.

3

Constitutionalizing Human Rights Universality in Nonconstitutional Legal System

Iskandar

nesia in its declaration denigrated self-determination as “a one-time

only right.”5 Moreover, the post-Suharto democratization process has

produced a distinct discourse on human rights that seems to disregard

international law and that eventually hurts the very objective of the

human rights movement itself which promotes the rights of human

beings, not only national citizens.6 Simply put, as a new democracy,

Indonesia has largely failed to see the domestic function of interna-

tional law as part of the “precommitment devices” in a constitution that

would eventually “lock in” democracy.7

However, the Law No. 11 of 2005 on the Acceptance of ICESCR stated on 28

Oct. 2005, see Lembaran Negara No. 118 (2005) and http://treaties.un.org/Pag-

es/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-3&chapter=4&lang=en.

5. e declaration for both Covenants stated that:

[w]ith reference to Article 1 of the International Covenant on Civil and

Political Rights, the Government of the Republic of Indonesia declares

that, “consistent with the Declaration on the Granting of Independence

to Colonial Countries and Peoples, and the Declaration on Principles

of International Law concerning Friendly Relations and Cooperation

Among States, and the relevant paragraph of the Vienna Declaration

and Program of Action of 1993, the words 'the right of self-determina-

tion' appearing in this article do not apply to a section of people within

a sovereign independent state and can not be construed as authorizing

or encouraging any action which would dismember or impair, totally or

in part, the territorial integrity or political unity of sovereign and inde-

pendent states.

Supra note 4.

6. See https://treaties.un.org/pages/viewdetails.aspx?chapter=4&s-

rc=treaty&mtdsg_no=iv-4&lang=en (last visited Aug. 20, 2014). See also

Pranoto Iskandar, Pemanfaatan Hukum Internasional dalam Tata-Kelola Mi-

grasi Ketenagakerjaan di Indonesia: Sebuah Tinjauan Umum [e Exploration

of International Law in the Management of Labor Migration in Indonesia: An

Overview], in S I M K B-

 HAM [I H R B S  L

M] 29-34 (Pranoto Iskandar ed., 2011) (surveying the use of inter-

national law in the pratice of promotion and advocacy of international human

rights in Indonesia); On the dierent conception of human rights see Knut D.

Asplund, Resistance to Human Rights in Indonesia: Asian Values and Beyond,

10 A-P. J.  H. R.  L. 41-3(2009).

7. Normally, new democracies are more receptive toward international law, as is

shown in Ginsburg’s seminal work that: