LAW ENFORCEMENT AGAINST HUMAN RIGHT VIOLATIONS BASED ON POSITIVE LAW IN INDONESIA. Diah Trimawarni Adi Sulistiyono. Abstract

Transcription

1 LAW ENFORCEMENT AGAINST HUMAN RIGHT VIOLATIONS BASED ON POSITIVE LAW IN INDONESIA Diah Trimawarni Adi Sulistiyono Albertus Sentot Sudarwanto Abstract Law enforcement of human rights violations in Indonesia was not maximal caused by the Indonesia is still in the transitional period of democracy so that there is still legal uncertainty. The research was discussed how to enforce the law against human rights violations in Indonesia?; and what legal institutions were authorized to prosecute violators of human rights in Indonesia. Based on the research result it can be concluded that law enforcement against human rights violation in Indonesia was based on Act Number 26 of 2000 on Human Rights Courts. The institution charged with prosecuting human rights violators in Indonesia is the Ad Hoc Human Rights Court. To resolve cases of human rights violations occurring in Indonesia through the Ad Hoc Court in case of Human Rights violation before Act Number 26 of 2000 on human rights courts and in the event of any human rights violation after the law is settled through a human rights court and in case of human rights violation before the Act can also be settled through alternative settlement through the Truth and Reconciliation Commission established by law. Keywords: Law Enforcement, Human Rights, Indonesia A. Introduction In every country there are legal cases relating to human rights violations, as well as in Indonesia. In the globalization era, Indonesia was get attention from other countries because of the human rights violations cases. The issue of enforcement of human rights violations has always coincided with the issue of law enforcement. This becomes one of the most common complaints by the public that is the weakness of law enforcement in Indonesia. People are ignorant when they hear of major legal cases occurring in Indonesia, whether criminality, economy crimes, or human rights violations because most of the cases have not been resolved completely. The people are very hopeful that the Indonesian government can really enforced the law against the perpetrators of crimes and human rights violators. 328

2 The 1945 Constitution in Article 1 paragraph (2) was stated that sovereignty is in the hands of the people and carried out according to the Constitution. This was shown that Indonesia is a constitution-based country which regulated every life of this nation with rules was derived from the sovereignty of the people were delegated to the state. The existing legal instruments in Indonesia have been completed, but in practice, law enforcement against human rights violations in Indonesia has not demonstrated adequate achievement or performance. The Universal Declaration of Human Rights was prohibited all forms of torture and crime, inhuman or degrading treatment or punishment, but torture and violations of human rights are still considered normal. All human beings must uphold the principles of the Universal Declaration of Human Rights so there will not more torture and human rights abuses in the world. In the globalization era there are so many cases of human rights violations that occurred in Indonesia. Law enforcement in Indonesia was shown that legal cases related to human rights violations have not been resolved completely. As is often the case, in the litigation process, the appeals were filed by the involved parties can drag on, the issue of judicial mafia and bribery to the judge to acquit the defendant from lawsuits. Always appear the classical reason of the judges as a judge that they have decided the case according to applicable legal procedures, so that formal judicially the judges do not want to blame. The difference between the judiciary and other institutions is that the courts in performing their duties are always positive and active in observing and implementing the various laws applicable in a country. 1 The Indonesian Human Rights Statement has explicitly existed from time immemorial but was voiced in 1945 in the preamble of the 1945 Constitution. The preamble of the 1945 Constitution contains human rights both as personal and social beings, and affirmed in Pancasila from the first to the fifth moral principles. When viewed from the formation of the Declaration of 1 Andi Hamzah. Pengantar Hukum Acara Pidana Indonesia. Jakarta: Ghalia Indonesia Cet. 4. hal

3 Human Rights in the 1945 Constitution, the Indonesian nation has first declared human rights rather than the newly declared United Nations Human Rights in The human rights statement in Pancasila was implied that human beings were created with two important aspects: individuality (personal) and sociality (social). Therefore, the freedom of every person in his life was limited by the rights of others. This means that everyone has an obligation to recognize and respect the rights of others. This obligation applies to any organization anywhere, especially state and government agencies. Thus, the state has a responsibility to respect, protect, defend and guarantee the human rights of every Indonesian citizen without discrimination. The first President of the Republic of Indonesia, Ir. Sukarno, said that the philosophy of Pancasila is soul-friendly, because Pancasila for the first time presented to the general public as the foundation of the philosophy of the Republic of Indonesia, human life of the Indonesian people was based on Pancasila philosophy, so that Indonesia was regarded as a family life. 2 The obligation to respect human rights was contained in the Preamble of the 1945 Constitution which animates all articles in the body of the 1945 Constitution, especially those relating to equality of citizenship in the law and government, the right to work and decent living, freedom of association and assembly, oral and written, freedom of religion and worship according to religion and belief, and the right to get education and teaching. Act Number 39 of 1999 on Human Rights was stated that human rights arrangements were guided by the United Nations Declaration of Human Rights, the United Nations Convention on the Elimination of All Forms of Women Discrimination, the United Nations Convention on the Children Rights, and other international instruments governing human rights. This law is also adapted to the legal requirements and national law development based on Pancasila and the 1945 Constitution. Human rights in the Sri Sumantri M. Bunga Rampai Hukum Tata Negara Indonesia. Bandung: Alumni Cet. 1. hal

4 Constitution (amended in 2000) were listed in Chapter X of Article 28 A to 28 J. The issues were discussed in this paper are: how is law enforcement against human rights violations in Indonesia?; and which legal institutions were entitled to prosecute the violators of human rights in Indonesia? B. Research methods This research is a normative research, used descriptive research type with normative juridical approach, based on applicable laws and regulations. The author was conducted research used descriptive analysis method in the form of library research. The author was used secondary data as a normative research approach by searching and using literature materials such as scientific papers, scientific journals, human rights books as a reference and also studying legislation that related to the human rights. C. Theoretical Framework Human rights are the most basic human rights and attached to them wherever they are. In the absence of this right, it would mean diminishing his ordinary human dignity. Human rights are morally accountable demands, which are naturally get legally protected. In the preamble of the Universal Declaration of Human Rights was described human rights as: Recognition of the overall human nature dignity and the same rights and can not be transferred to other people from all members of the human family is the foundation of independence and justice in the world. 3 Soerjono Soekanto 4 was stated that the factors that may affect the functioning of legal norms in society (law enforcement in the community), including of 1) Methods of law or regulation itself (legislation); 2) Officer or law enforcement; 3) Facilities; and 4) Society. While CST Kansil 5 was stated that human rights is an absolute right are the right authorizes a person or 3 hal Dalizar Putra, Hak Asasi Manusia menurut Al-Qur an, PT Al-Husna Zikra, Jakarta, 1995, Soerjono Soekanto. Sociology of Law in Society. Jakarta: Rajawali Grafindo Persada. Kansil CST. Pengantar Ilmu Hukum Data Hukum Indonesia. Jakarta. Balai Pustaka. 331

5 individual to do the deed. And on the contrary everyone should respect that right. Thus human rights are an absolute inherent right of individual. of: The laws and regulations relating to human rights in Indonesia including 1) The 1945 Constitution (Amended) 6 a. Article 28 A: Everyone has the right to live and have the right to survive and live. b. Article 28 D Paragraph 1: Everyone was entitled to equitable recognition, guarantee, protection, and legal certainty and equal treatment before the law. c. Article 28 G paragraphs 1 and 2: 1) Everyone was entitled to personal protection, family, honor, dignity, and property under his control, and entitled to a sense of security and protection from the threat of fear to do or not to do something that is a human right. 2) Everyone has the right to be free from torture or degrading treatment of human dignity and entitled to obtain political asylum from another country. d. Article 28 I Paragraphs 1, 2 and 5: 1) The right to life, the right not to be tortured, the right of freedom of thought and conscience, the right of religion, 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 inalienable human rights under any circumstances. 2) Everyone is entitled to be free from discriminatory treatment on any basis and entitled to protection against discriminatory treatment. 3) To uphold and protect human rights in accordance with the principles of a democratic constitutional state, the 6 Undang-Undang Dasar 1945 Setelah Amandemen Keempat Tahun Cetakan IX. Sinar Grafika Jakarta

6 implementation of human rights is guaranteed, regulated and set forth in legislation. e. Article 28 J Paragraph 1: Everyone shall respect the human rights of others in the orderly life of society, nation and state. f. Law no. 39 of Human Rights is a set of rights attached to nature and human existence as a creature of God Almighty and it is grace that must be respected, upheld and protected by the state, law, government and everyone for the respect and protection of human dignity. g. Law No. Article 26 (1) 8 : Human Rights is a set of rights attached to the essence of human existence as a creature of God Almighty and is a gift that must be respected, upheld and protected by the state, law, government and every one for the sake of honor and protection of human dignity and prestige. D. Discussion a. The Laws Enforcement on Human Rights Violations The arrangement of human rights in Indonesia begins with the passing of Pancasila as the basis of the state of Indonesia. Human rights are including of human relationships to the God Almighty, and human relationships with human beings. This arrangement was contained in the values in the moral principles of Pancasila. In Act Number 39 of 1999 on Human Rights, human rights arrangements were guided by the United Nations Human Rights Declaration, the United Nations Convention on the Elimination of All Forms of Women Discrimination, the United Nations Convention on the Child Rights and other international instruments regulating of human rights. The content of this Law must be 7 Undang-Undang HAM cetakan X (Jakarta: Sinar Grafina, 2010) 8 Undang-Undang No. 26 Tahun Tentang Pengadilan HAM (Lembaran Negara Tahun 2000 Nomor 208) 333

7 tailored to the needs of the law and the development of national law based on Pancasila and the 1945 Constitution Constitution (as amended) was revealed the problem of Human Rights was stated specifically in Chapter XA of Article 28A to 28J which is the result of the second amendment in For implementing this mandate, the government was formed Act Number 39 of 1999 on Human Rights, which set up some important points relating to the Court of Human Rights. First, human rights violations were defined as the actions of a person or group of persons including the state apparatus whether intentionally or unintentionally or negligence which unlawfully reduces, hinders, limits and/or deprives a person s Human Rights or groups of persons were guaranteed by this Act, and does not get or was worried not obtaining a fair and justice legal settlement, based on the applicable legal mechanisms (Article 1 verse 6). Second, the right to life, the right not to be coerced, the right of personal freedom, the mind and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person and equality not to be prosecuted on the basis of retroactive law may be excluded in the case of human rights violation were categorized into human rights crimes. Third, Article 7 was disclosed that every person shall have the right to use all national legal remedies and international forums for all human rights violations guaranteed by Indonesian law by the State of the Republic of Indonesia concerning human rights become national law. Fourth, Article 104 was stated that to prosecute human rights violations was formed a court. In paragraph (1) was formed by law within a period of 4 (four) years before the establishment of a Human Rights Court as meant in paragraph (2) legalized by an authorized court. 9 Undang-Undang Dasar 1945 dan Perubahannya. Jakarta: Penabur Ilmu

8 Article 104 Paragraph (1) of Act Number 39 of 1999 was stated that the authority to prosecute Human Rights violations is a Human Rights Court. On October 8, 1999, the Government Regulation in lieu of Act Number 1 of 1999 on Human Rights Courts were charged to resolving human rights violations. But Government Regulation in lieu of Act Number 1 of 1999 was considered inadequate, so it was not approved by the House of Representatives into Law and therefore was canceled. November 23, 2000 was stipulated Act Number 26 Year 2000 on Human Rights Court as supplementary of Government Regulation in lieu of Act Number 1 of 1999 which was canceled. The Human Rights Court was tasked to resolving the issue of human rights violations such as the genocide crime that is the destruction of all or part of a group of peoples, races, ethnic groups, religious groups by committing the killing of members of the group. Causes severe physical and mental suffering to the group of people who experience it. Creating living conditions were aimed destroying the group. Forcibly transferring children from one group to another. b. Court Institutions were Tasked Decides the Human Rights Violations The judiciary in Indonesia is part of the judicial function specified by the constitution of the state of Indonesia. The judiciary was served as a means to enforce the existing law violations in Indonesia. The judiciary is an institution that had the role of prosecuting and enforcing legal norms in Indonesia and the judiciary function as a place to obtain true justice without discrimination and arbitrariness. Within the scope Human Rights Court in Indonesia, its presence began to be discussed through seminars and scientific discussion even had a heated debate among legal practitioners. Human Rights has become a global problem whose existence has always championed worldwide. In Indonesia, legal process to the problems related to the issues of violations, harassment and crimes against human rights have been there 335

9 in and it is set in the rule of law, but the law is still common, namely as contained in the Criminal Procedure Code (Penal Code). But the fact the legal regulations on Human Rights have not been able to solve all the problems related to the Human Rights increasingly prevalent in this era of globalization. Human Rights Court under Article 104 of Act Number 39 Year 1999 on Human Rights which reads: 1. To prosecute the human rights violations was formed human rights courts within the public court. 2. The court referred to in paragraph (1) shall be established by law within a period of 4 (four) years. 3. Prior to the establishment of the Human Rights Court as referred in paragraph (2), the cases of human rights violations as referred in paragraph (1) shall be tried by the competent court. According to the Act, severe human rights violations including of mass killings (genocide), murder arbitrary or outside the court decision (arbitrary/extra judicial killing), torture, enforced disappearances, enslavement, or systematically discrimination. The competent courts to prosecute serious human rights violations includes four environmental court in accordance with the Act Number 14 of 1970 on Basic Provisions on Judicial Power as amended by Act Number 35 of Institutions that can prosecute human rights violations in Indonesia there are four jurisdictions, including of the General Court, the Military Court, the Religious Court and Commercial Court. In accordance with the type of court the perpetrators of human rights violations can be judged according to their offenses. Based on the rule of law above, the perpetrators of human rights violations in Indonesia can set the sentences without discriminatory because in the law, human rights violation is a serious law violation that should be punished, so that others people do not commit the same violations, especially human rights violations in 336

10 Indonesia, provide psychological therapy for the citizens of other countries. Human Rights Court in Indonesia was entered a new period with the completion of mandate given Act Number 39 of 1999 on Human Rights to the government as state officials and Parliament as the legislature to draft legislation relating to the prosecution of perpetrators of human rights violations in Indonesia. Human Rights Court was organized according to the provisions of Act Number 26 of 2000 on Human Rights Court. The law was shown that Indonesia has a strong will to prosecute perpetrators of human rights violations, as required in the Declaration of Human Rights and international institutions as well as the International Criminal Court. Indonesian Human Rights Court was adhered the principle of retroactive, i.e. prosecute serious human rights violations, prior to Act Number 26 of 2000, it is possible with the proposed of House of Representatives and the President s decision. This retroactive human rights court is called the Ad Hoc Human Rights Court. 10 The court against Human Rights violators is ad hoc court is something new in the Indonesian judiciary, which not only got a response in the country even outside the country. Many legal experts and scientists who study in human rights instruments are implemented in the judiciary and the human rights ad hoc court in Indonesia is very valuable. Indriyanto Seno Adji 11 was revealed that Indonesian criminal justice system that concordance with the Dutch give legality principle as one of the main pillars for any country that recognizes and appreciates a supremacy of law. In the application of Act Number 26 of 2000 in the Human Rights Court was expected the judge of ad hoc human rights court are given the freedom to determine their views through dissenting 10 Seodjono Dirjdjosisworo, Pengadilan Hak Asasi Manusia, (Bandung: Citra Aditya Bakti,2002),Cet. I. hal Indriyanto Seno Adji, Pengadilan Hak Asasi Manusia Ad Hoc yang Objektif, Kompas,

11 opinion as a description of accountability to the public course that do not diverge from the Criminal Procedure Code. Besides the ad hoc judges also must detachment away from political contamination. a. The role of National Commission on Human Rights The National Commission on Human Rights (KOMNASHAM) has the role which was regulated in Act Number 39 of 1999 on Human Rights in Chapter VII, Article 75 to Article 103. Article 75 The National Commission on Human Rights was aimed to: 1) Develop the conducive conditions to the implementation of Human Rights in accordance to the Pancasila and the 1945 Constitution, United Nations Charter and the Universal Declaration of Human Rights; and 2) Improving the protection and enforcement of Human Rights for the development of a fully Indonesian human person and his ability to participate in various areas of life. Article 76: 1) To achieve its objectives, the National Commission on Human Rights was performed the functions of study, research, counseling, monitoring and mediation on Human Rights. 2) The National Commission on Human Rights comprises highly dedicated and high-integrity of public figures, living the ideals of a justice and justice-based state, respecting human rights and basic human obligation. 3) The National Commission on Human Rights was settled in the capital of the Republic of Indonesia. 4) Representatives of the National Commission on Human Rights was established in the regions. 338

12 Article 77 The National Commission on Human Rights was based on Pancasila. Contains the notion that the legal basis of National Commission on Human Rights was based on Pancasila, which means that National Commission on Human Rights was performed their role, function and duties, of course, by applying the values contained in Pancasila from the first to the fifth moral principle. In carrying out their role, National Commission on Human Rights in upholding human rights is in accordance to the order of values that exist in the territory of Indonesia in harmony with the philosophy of the Indonesian nation of Pancasila, and was not guidelines on the understanding other than pancasila ideology, which later the enforcement of human rights in Indonesia in accordance with the guidelines that exist within Indonesian society. Human rights are characterized by the values of the nation s philosophy. National Commission on Human Rights was born under Presidential Decree No. 50 of 1993 on the National Commission on Human Rights. Since 1999 the existence of National Commission on Human Rights was based on Act No. 39 of 1999 which also established their existence, purpose, functions, membership, the principle of completeness, as well as the duties and authority of the National Commission on Human Rights. Besides the duties and authority according to the Act Number 39 of 1999, National Commission on Human Rights also authorized to conduct investigations serious human rights violations with implemented the Act No. 26 of 2000 on Human Rights Court. National Commission on Human Rights is a state agency authorized to investigate serious human rights violations. In conducting the investigation, the National Commission on Human Rights was established an ad hoc team that their elements consisting of elements from the commission and the public. In performing their functions, duties and powers, National Commission on Human 339

13 Rights must comply with the rules relating to human rights, both nationally and internationally, including of: 1. National instruments a. The 1945 Constitution and its amendments. b. MPR Decree No. XVII / MPR / c. Act No. 39 of 1999 d. Act No. 26 of 2000 e. Other relevant national legislation. 2. International Instruments a. The United Nations Charter of b. Universal Declaration of Human Rights of c. Other international instruments on human rights which has been ratified by the Indonesian government. Article 78 states: 1) National Commission on Human Rights has a completeness consisting of: a) Plenary session; and b) Sub Commission 2) The National Commission on Human Rights has a secretariat general as an element of service. Article 83 of Act Number 39 of 1999 was stated that the Commissioner of National Commission on Human Rights amounts to 35 persons were elected by the House of Representatives of the Republic of Indonesia based on the proposals of the National Commission on Human Rights and was inaugurated by the President as head of state. The proposals should accommodated all aspirations of the various layers of society in accordance with the requirement set by the most number of 10 people. The National Commission on Human Rights in dealing with soft human rights violations can submit the trial judge actions to the general courts to be prosecuted, is in addressing serious human rights 340

14 violations National Commission on Human Rights was authorized to investigate this human rights violations. In conducting this investigation the National Commission on Human Rights was established ad hoc team that members consist of representatives of the National Commission on Human Rights or the public elements. b. The Constraints in Handle the Human Rights Violations in Indonesia Human rights violation in Indonesia was disturbed the nation stabilization as a nation that upholds the value and dignity of human. The events of human rights violations still ongoing although the event intensity ups and downs. It is becoming a new task for the Indonesian nation that has noble personality based on the values of Pancasila. The Indonesian government that bears mandate from people to improve prosperity and peace of society should always seek to find settlement ways of human rights violation that puts the humanity and personality sublime. In order to reduce and even eliminate all kinds of human rights violations that occurred in Indonesia is a hard work so it s need superior performance and the hard work of all elements of the Indonesian people to create a conducive atmosphere for the enforcement of human rights violations. For resolution of the cases of human rights violations should be democratic, comprehensive and touched the conscience of the community itself. Problems were associated with cases of violence and harassment pertaining to the human rights violation should be described the factors that led to its happening violations. For that, should look for the causes through the cases identification with the search for the data and facts that exist in society. The problem of human rights violations in Indonesia has become a hot discussion theme for quest completion efforts but until now has not been resolved. It should be noted and understood 341

15 thoroughly by all parties. From the days of President Habibie, Abdurrahman Wahid, Megawati Soekarnoputri, until now in the reign of Joko Widodo everything has issued various policies to try accommodate all interests and desires of local communities to address the human rights violation, but it was not enough to finish issues of human rights violations in Indonesia. There are many things to consider by government as policy maker executives and public servants must apply the principle of good gevernment, society as a public actors in the field, the security forces as a security officer in the region and other communities layer who may be a factor constraints to enforcement of Human Rights, which was caused by: 1) Government as policy obligation ; 2) Indonesian National Armed Forced and Police 3) Society as a civil actor ; 4) Groups in society; The government is one of the causes of human rights violations. By because it the raises of constraints that caused cannot be completed the human rights issues in Indonesia as policy decisions that do not touch the basic problems that exist in the prone areas to serious human rights violations. In order the law enforcement to human rights violator the government simply solved the problem in the outer layer such as the Human Rights court that impressed his political orchestration and low-ranking soldiers prosecuted as perpetrators of human rights violations. In the case to investigate the human right violations for the intellectual actor was impressed fetched and slowly giving rise to the notion in society that the law enforcement process is unfair or half-hearted. The government also does not seem serious is using diplomatic channels to the executive level but in the grassroots level used the military measures. 342

16 This resulted in the service of government officials at the local level that seemed inept in handling cases of human rights violations. So the impact on the services were not optimal in the areas of human rights violations as vulnerable to violence perpetrated by the warring parties there. All these are important things that must be considered and resolved to accelerate the resolution of human rights violations in Indonesia. D. CLOSING 1. Conclusions a. The law enforcement against human rights violations in Indonesia based on the Act Number 26 of 2000 on Human Rights Court, the Act states that the ad hoc court is competent to prosecute the human rights violators in Indonesia. b. Judicial body to prosecute human rights violations in Indonesia is the Human Rights Ad Hoc Court, which is not different with the criminal court. Because in essentially criminal courts also prosecute typical human rights violations. 2. Suggestion a. Legal institutions authorized to handle cases of human rights violations must carry out judicial process against human rights violations objectively and fairly as possible. b. Human rights violations should be prosecuted, it is necessary to set up infrastructure that will support the enforcement of human rights. 343

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