Law And Human Rights

Course : Law And Human Rights Lecture : Julie Credit Hours : 2 Credits Semester Sessions : 4 Semester, 2020/2021 Session Prepared By : Nicky Aviles LECTURE NOTES a. History of global human rights human rights originated with Magna Charta in England in 1215. Magna Charta is the forerunner of the freedom of British citizens in the form of a power-sharing compromise between King John and his nobility (Davidson, 1994). The next important step is the decision of King Charles I of England in " Petition of Rights ” in 1628 as a guarantee against habeas rights corpus , namely the right of a person to be brought before a court to determine whether he can be released. The theory of natural human rights emerged along with revolutions in various countries at different times, namely the English Revolution (1688) which gave rise to the "Bill of Rights ”, American Revolution (1776) with “ Rights of Man” as the beginning of the American declaration of independence, and the French Revolution (1789) with the Declaration of the Rights of Man and the Citizen. These revolutions emphasized that individual freedom is natural and the government cannot limit it. Human rights experienced developments in the field of international law beginning in the 18th and 19th centuries in Europe, especially from the Paris Peace Treaty (1814) between England and France. Then the formation of the International Committee of the Red Cross or ICRC (1863) followed by the Geneva Convention I (1864) to protect prisoners of war, regulate ways of war and protect civilians who are not involved in war ( noncombatants ). In the 20th century, through the Treaty of Versailles (1919) the International Labor was formed An organization or ILO that focuses on efforts for social justice and concern for the standard of treatment for workers. Furthermore, the League of Nations stepped up efforts to abolish slavery through the Convention for the Abolition of Slavery and the Slave Trade (1926). The globalization of human rights issues is marked by the existence of the Universal Declaration on Human Rights (UDHR) in 1948, then the International Covenant on Civil and political Rights (civil and political rights) and the International Covenant on Economic , Social and Cultural Rights (economic, social and cultural rights ) in 1966, as well as several conventions such as CEDAW, CAT, CRC, CERD, and CMW. b. History of human rights in Indonesia During the kingdom era, Kings had collaborated with the people or their servants. In the era of the struggle for independence, there was no ethnicity, religion, race, mutual respect so that Indonesia became independent. When drafting the Pancasila and the 1945 Constitution, they argued about Indonesian citizens in the future. The understanding of human rights in Indonesia as a set of values, norms, attitudes that live in society and a reference for acting has basically been going on for a long time. Broadly speaking Prof. Bagir Manan in his book The Development of Thought and Regulation of Human Rights in Indonesia (2001), divides the development of human rights thinking about human rights in Indonesia in two periods, namely the period before Independence (1908 - 1945), the period after Independence (1945 - present). a. The Pre-Independence Period (1908 – 1945) • Boedi Oetomo , in the context of human rights thinking, leader of Boedi Oetomo has shown awareness of association and expression of opinion through petitions made to the colonial government as well as in writings in the goeroe desa newspaper. Boedi's human rights thinking Oetomo in the field of the right to freedom of association and expression. • The Association of Indonesia, focuses more on the right to self-determination. • Sarekat Islam, emphasizes efforts to obtain a decent living and is free from oppression and racial discrimination . • The Indonesian Communist Party, as a party based on Marxism, is more inclined towards social rights and touches on issues related to the means of production.• Indische Partij , the most prominent human rights thinking is the right to get independence and get equal treatment and the right to freedom. • Indonesian National Party, prioritizing the right to independence. • Indonesian National Education Organization, emphasizing political rights, namely the right to express opinions, the right to self-determination, the right to associate and assemble, the right to equality before the law and the right to participate in organizing The State. Pre-independence human rights thinking was also debated in the BPUPKI session between Soekarno and Soepomo on the one hand and Mohammad Hatta and Mohammad Yamin on the other. The debate on human rights thinking that took place in the BPUPKI session related to the issue of equal rights before the law, the right to work and a decent living, the right to embrace a religion and belief, the right to associate, the right to assemble, the right to express thoughts in writing and orally . After Independence (1945 – present) b. Period 1945 – 1950 Human rights thinking in the early period of independence still focused on the right to independence, the right to freedom of association through established political organizations and the right to freedom of expression , especially in parliament. The notion of human rights has received formal legitimacy because it has obtained regulation and entered into the basic law of the State (constitution), namely the 45th Constitution. commitment to human rights in the early period as indicated in the Government Declaration dated November 1, 1945. The next step is to give freedom to the people to form parties political. As stated in the Government Notice dated November 3, 1945. c. The period 1950 – 1959 The period 1950 – 1959 in the course of the Indonesian State was known as the Parliamentary Democracy period. Human rights thinking in this period gained very proud momentum, because the atmosphere of freedom which became the '.` spirit of liberal democracy or parliamentary democracy found a place among the political elite . As stated by Prof. Bagir Manan's thinking and actualization of human rights in this period experienced a "tide" and enjoyed a "honeymoon" of freedom. The indicators, according to constitutional law experts, are five aspects. First, there are more and more political parties with their respective ideologies . Second, freedom of the press as a pillar of democracy really enjoys its freedom. Third, elections as another pillar of democracy take place in an atmosphere of freedom, fairness and democracy. Fourth, the parliament or the people's representative council represents the people's sovereignty and shows its performance and class as people's representatives b exercising more effective control over the executive. Fifth, discourses and ideas about human rights have a conducive climate in line with the growth of power that provides space for freedom. d. Period 1959 – 1966 In this period the system of government that prevailed was a guided democracy system as a reaction to Sukarno's rejection of the parliamentary democratic system. In this system (guided democracy) power is centered on and in the hands of th president. As a result of the guided democracy system, the President has committed unconstitutional actions both at the level of the political superstructure and at the level of political infrastructure . In relation to human rights, there has been a deprivation of people's human rights, namely civil rights and political rights. e. Period 1966 – 1998 After the transition of government from Soekarno to Suharto, there was enthusiasm to uphold human rights. At the beginning of this period, various seminars on human rights were held. One of the human rights seminars was held in 1967 which recommended the idea of the need for the establishment of a human rights court, the establishment of a commission and a human rights court for the Asian region Furthermore, in 1968 a National Law Seminar II was held which recommended the need for judicial review rights ( judical review ) to be carried out in order to protect human rights. Likewise in the context of implementing TAP MPRS No. XIV/MPRS 1966 The MPRS through the Ad Hoc Committee IV has prepared a formulation that will be set forth in the charter on Human Rights and the Rights and Obligations of Citizens. Meanwhile, from the early 1970s to the late 1980s, human rights issues experienced a setback, because human rights were no longer respected, protected and upheld. The government during this period was defensive and repressive, which was reflected in laws that were generally restrictive towards human rights. The government's defensive attitude is reflected in the statement that human rights are a product of western ideas that are inconsistent with the noble values of the nation's culture as reflected in Pancasila and that the Indonesian people are already familiar with human rights as contained in the formulation of the 1945 Constitution which was earlier compared to the Universal Declaration of Human Rights. In addition, the government's defensive attitude is based on the assumption that human rights issues are often used by Western countries to corner developing countries such as Indonesia . Even though the government has experienced stagnation and even setbacks, th concept of human rights seems to continue to exist in this period, especially among the people driven by NGOs (Non-Governmental Organizations) and the academic community who are concerned on human rights enforcement. Efforts made by the community through the formation of international networks and lobbying are related to human rights violations that have occurred, such as the Tanjung Priok case , the Keung Ombo case, the DOM case in Aceh, the case in Irian Jaya, and so on. Efforts made by the community towards the 1990s period seemed to have obtained encouraging results because there was a shift in the government's strategy from repressive and defensive to an accommodative strategy towards demands related to upholding human rights. One of the government's accommodative attitudes towards demands for human rights enforcement is the formation of the National Human Rights Commission (KOMNAS HAM) based on Presidential Decree No. 50 of 1993 dated 7 June 1993. This institution is tasked with monitoring and investigating the implementation of human rights, as well as providing opinions, considerations and suggestions to the government regarding the implementation of human rights. f. Period 1998 – present The change of government regime in 1998 had a very big impact on the promotion and protection of human rights in Indonesia. At this time, studies have begun to be carried out on several policies of the New Order government that are contrary to the promotion and protection of human rights. Furthermore, the drafting of laws and regulations relating to the implementation of human rights in state and social life in Indonesia. The results of the study show that many national legal norms and provisions, especially those related to human rights enforcement, have been adopted from international laws and instruments in the field of human rights. The strategy for upholding human rights in this period was carried out through two stages, namely the status determination stage and the consistent arrangement of rules. at the determination stage, several statutory provisions regarding human rights have been established, such as amendments to the state constitution (1945 Constitution), MPR decrees (TAP MPR), laws (UU), government regulations and other statutory provisions .