Agus widodo
Student of PDIH UNISSULASemarang [email protected]
Abstract
Human rights are basic rights which possessed by every human beings to obtain protection from the state. This human rights protection will not be guaranteed by just declaring that these human rights are approved. The things that are needed are a more concrete supply. The concrete supply that are meant is the division/separation of power (trias politico), which there are legislative, executive, and judicative power in form of state law. 1
The problems in this paper are: (1). How is the history development of human rights? (2) How is the adjustment of human rights in Pancasila and UUD 1945?
Human rights are universal rights. Historically, this human right already exists in Magna Charta in 1215 in England. By many law experts, this Magna Charta is considered as the main base of democratic rights. In this charter, King of England, John Lackland has been forced to admit the right of people that have been living since from generation to generation. The right of a person should not be deprived if it not based on the constitution and judge decision. These taxes should not be withheld solely on the order of king alone, to collect taxes, first it needs an approval from a deliberative council. Although it not perfect, Magna Charta can be seen as a beginning rather than recognition of freedom and people’s freedom. 2
According to Living Stone Hall, as cited by Mien Rukmini,3article 39 from Magna Charta determines that “no one should be caged, deprived of his property, exclude or taken his life, unless through punishment that is legitimate by their national law”, then in the sixteen century expanded with under condition “no one in any level or life condition can be taken, caged, or executed, without accountability as it should be through fair legal process.”
In Indonesia, legal ideals rooted from Pancasila, which by state founder assigned as basic philosophical in arranging framework and base structure of state organization as defined in 1945’s Constitution. Pancasila is an Indonesian state view of life contain Indonesian view in correspond between human with God, between man and man, and also between human with universe. In those views of life, it will give a gaze in mind and action, in this case it already reflected in the Opening, formulation of articles, transitional rules and additional rules. The implementation of UUD 1945 should be done starting from law norm consolidation until in statehood practice.
The conclusion of this research is, human right is a basic right that is universal. Human rights is a right that is attached in human identity which universally and naturally taking care of human existence as God creature that had the same position with other people, where it can not be ignored and deprived by any party.
Human right that is regulated in UUD 1945 was born first than Declaration of Human Rights.
UUD 1945 guarantee upholding state law, it not only as state law in formal or narrow sense, but also in material and broad sense. The regulation of human rights in UUD 1945 and various legislations has provided guarantees of right protection which are fundamental.
1 Gautama Sudargo, Penertian Tentang Negara Hukum, hal 10 2 Ibid, hal. 38.
3 Rukmini, Mien, Op cit, hal. 42.
INTRODuCTION
Human rights is a basic rights that owned by every human to obtain protection from the state.
The protection of human rights will not guarantee only with stating that this human rights are approved. All its need is a more concrete supply. Concrete supply here are the division/separation of power (trias politico) where there is a legislative, executive, and judicative power in form of state law4
Indonesia as a state law uphold human rights and also guarantee every citizen right equal position in law and government, and obliged to uphold law and and government with no exception.
The elaboration of human rights other than in UUD also in various laws and regulations that apply.
The concept of a state of law that developed in western countries, always requires the protection of human rights as a basic human right.
Setting and the enforcement of human rights in the state law absolutely necessary, especially in Indonesia. Also according to Soerjono Soekanto it should increase public awareness, so that each of its members live up to their rights and obligations, and indirectly increase the coaching attitude of the executors of law enforcement towards the rule of law, justice and protection of human dignity, order and legal certainty according the 1945 Constitution.5
In line with that, Sudargo Gautama also state that in a state law there are legal restrictions on state power against individuals. The state is not omnipotent. The state can not act arbitrarily. State actions against its citizens are restricted by law.
This means that in a state law beside there is a equality for their citizen there are also a limitation in of state power. State and their citizen should remain bow in applicable legistlation.
The problems in this paper are:
1. How is the history of Human Rights?
2. How is the Human Rights setting in Pancasila and 1945 Constitution?
The History of Human Rights
Human rights are rights are universal. Historically, human rights already exist in the Magna Charta, in 1215 in England. By many legal experts, the Magna Charta is regarded as the main basis of democratic rights. In this charter the English king John Lackland (stateless John, Jan.
zonder land) has been forced to acknowledge the rights of people who have lived for generations.
A person freedom should not be deprived if it not based on the law and the judge’s decision. Taxes should not be levied solely on the orders of the king alone, to levy this tax required prior approval of a consultative council. Although it is not perfect, this Magna Charta can be viewed as the
The next development was the proclamation of a Bill of Rights, in 1776 in Virginia, USA. In the international law of science, proclamation is often cited and is regarded as one of the most important documents, in which human rights have been established. With the arrangement of the words captivated state in the proclamation, which every human being living in this world has created actuallyfree with gifted by some rights that can not be seized or destroyed. That every human being has the right to live in prosperity and peace without fear of taken away of his property rights by the authorities, that all the power actually comes from the citizen. Later, in that year it also appeared the Declaration of Independencethat become a milestone in American history it protects the rights of individual freedom. All men are created equal, thus the core of the proclamation. In 1941 US President Franklin D Roosevelt declared that there are four basic human rights that are sacred and must be respected, namely: 1). freedom of speech, 2) freedom for each person to serve God according to their respective beliefs, 3) freedom from poverty and 4) freedom from fear. In 1946, in the body of the United Nations (UN) was formed “Commission on Human Rights “.
Commission assigned to formulate human rights include civil rights and political rights and economic, social and cultural. The work of the Commission announced on 10 December 1948 in the “Declaration of Human Rights Human rights include civil rights and political (civil and political rights), and the rights of economic, social and cultural (economic, social and cultural).If the right further elaborated, human rights include:
a. Personal rights or “the personal rights”, which include freedom of expression, freedom of religion, freedom of movement and so on;
b. Economic rights or “the property rights”, ie the right to have something, buy and sell and use it;
Human rights to equal treatment in law and government, or commonly called “the rights of legal equality
c. Political rights or “the political rights”, namely the right to participate in government, the right to vote (vote and be elected in elections), the right to establish political parties and so forth;
d. Social rights and culture or “the social and cultural rights”, such as the right to choose the education, develop the culture and so on;
d. Rights to obtain justice treatment procedures and protection or “the procedural rights”, for example, regulations in terms of arrests, searches, justice and so on.7
The Human Rights Protection in State Law
The concept of State Law began to develop rapidly since the late 19th century and early 20th century. In Western Europe/ Continental, Immanuel Kant and Friedrich Julius Stahl called it with Rechtsstaat, whereas in Anglo-Saxon countries, AV Dicey use the term Rule of Law.
F.J. Stahl formulate Rechtsstaatelement in classical way as follow:
a. The protection of human rights;
b. The separation or division of state power to guarantee human rights;
c. Government based on regulation;
d. The existence of judicial administration.
In the development of a state law, the elements that hase been put forward by Stahl was then experiencing improvement which can generally be seen as mentioned below:8
7 Opcit hal 19
8 Ridwan, Hukum administrasi Negara, hal 4
1) The government system is based on citizen sovereignty.
2) That government in carrying out their task and obligation should based on law or
3) The government in conducting its duties and responsibilities must be based on applicable law.
4) The guarantee of the rights of human (citizens).
5) The division of state power.
6) The supervision of the judicial agencies (rechterlijke controle) free and independent, in the sense that the judiciary is completely impartial and not under the influence of the executive.
7) The real role of the members of the community or the citizens to participate and oversee the implementation of policy actions undertaken by the government.
8) The economic system that can ensure equitable distribution of resources necessary for the prosperity of citizens.
This view can not be separated from the history of the emergence of democracy (modern) since the advent of democracy was in line with the recognition of equality before the law and the rights of man, that state democratic law is characterized also the limitation of power by law to avoid the arbitrary power of rulers and the judiciary are independent and impartial.
The Rule of Lawelements according to A. V. Dicey are as follow:
a. the supremacy of the rule of law (the absolute supremacy of predominance of regular law);
b. an equal footing before the law(equality before the law, or the equal subjection of all classes to the ordinary law of the land administrated by ordinary law courts)’,
c. the guarantee of the rights of human (a formula expressing the fact that with us the law of constitution, the rules wich in foreign countries naturally form parts of a constitutional code, are not the source but the consequense of the rights of individuals as defined and enforced by the countries)’™
Then according to J.B.J.M. ten Berge that the state law principal and principal of democratic state are as follow:9
a. State law principal;
The principle of legality, restrictions on the freedom of citizens (by the government) is to be found essentially in the legislation which is the general rule. Laws generally must provide a guarantee (for residents) of the action
1) Arbitrary, collusion government, and various types of action that is not right. The exercise of powers by the government organs’smust be returned essentially the statutory law, the laws of formal human rights protection
b. Democracy principles;
1) Political representation. Supreme political power in a country and in a society determined by representative bodies, chosen through elections.
2) Political accountability. The government’s organs in carrying out its functions more or less depending on political, namely to the representative institutions.
3) Authority dispersal. The concentration of power in society at a government organ is arbitrariness. Therefore, the authority of public bodies must be spread in different organs.
4) Monitoring and control. Administration (operation)must be controlled.
5) Fairness and openness of government to the public.
6) People are given the possibility to give objections.
The elements contained in both kinds of state law above, both Rechtsstaat and the Rule of Law have similarities and differences. The basic equation between the Rechtsstaat and Rule of Law is the desire to provide protection and respect for human rights that have been dreamed up for centuries old with struggle and great sacrifice. The main factor causing the oppression and violation of human rights, because the absolute concentration of state power on the one hand, the king or the state (absolute). Hence the desire to separate or share the power of the state to some other state agency or institution, is one way to avoid the occurrence of violations of human rights and provide guarantees and protection of human rights. Similarly, the expectation that the government is run by law on the basis of equality before the law, contained a view to realizing the government not by men but by law (Government by laws, not by men).
In a modern democratic state, all parties bound by the law, not only the residents of the community but also the government. The guarantee of human rights is an important part in the implementation of democracy. The rights inherent in human beings and if the law requires, appeared since the man in the womb of his mother. Principles of good governance demand that it must be present in each of the laws and regulations invitation. The control system and transparency of government belongs to the people and people have a right to object if deviations happen from the government. Law occupies a central role because it does not only penetrate the people but also state officials.
According to Philip Nonet and Philip Selznick there are three law categories, namely: repressive law, the law of an autonomous and responsive law. The three types are to be seen as related to each other in a developmental sequence. The third type was also not only are the types of laws that differ from each other but can also be interpreted as an evolutionary stages in the legal relationship with the political system and social order. Each type is associated with a law of another problem in the social order.10
In repressive law, martinet itself attracts all the attention. Questioned autonomous legal legitimacy than the social order. This legitimacy is based on the idea that social order can be made valid when power usage is placed under the supervision of constitutional principles, formal procedures, and judicial institutions are free. This is basically the ideals of rule of law that is classic liberal. In ultimately responsive law in question is the purpose of social order. Type this law comes from a desire to make more laws aimed at serving people and institutions to achieve, not only formal justice, but also the substantive fairness.11
10 A-A.G Peters dan Koesriani Siswosoebroto, Hukum dan Perkembangan Sosial, Buku teks Sosiologi Hukum, Buku III, Sinar Harapan, Jakarta, 1990,hal. 158.
11 Ibid, hal. 158.
The development model is based on a dynamic of the repressive laws that push toward autonomous law, and the law of autonomous toward responsive law. In categorization, the repressive law occupies the lowest position, followed by a new autonomous law then the responsive law.
All three can vary according to the application of the law in society. Repressive law, can not solve the problem of legitimacy as long as he remains repressive; he was only able to solve it if he becomes autonomous law. Legal autonomous tendency toward legal formalism, which would reduce the legal relevance for solving problems, and that would make it insensitive to the demands of social justice. This is a major weakness of autonomous law. Autonomous law will only be able to overcome this weakness when he became more responsive to the motion dynamics of society.
Thus in the analysis of the court decision is entered in the category of autonomous law, because it has not been fully able to meet and serve the interests of society, and still tend to be formal procedural.
The Arrangement of Human Rights In Pancasila And 1945 Constitution
Human rights stipulated in the 1945 Constitution had been born ahead of the Declaration of Human Rights. 1945 Constitution guaranteeing the enforcement of state law, in the sense not only as a state of law in the formal sense or narrow, but also in the material sense or in a broader sense.
Paragraph 4 of the Preamble of the 1945 Constitution affirms it that reads “Later than that to form Indonesian state to protect the entire Indonesian nation and the entire country of Indonesia and to promote the welfare of ‘public, educating the nation and participate in the establishment of world order based on freedom, peace perennial and social justice ....”
The drafters of the Constitution willed that they draw up the Constitution is based on the principle of kinship, a principle which is entirely contrary to the idea of individualism and Hxxalisme.12
The prevailing legal order in society is basically an ideal embodiment of the laws adopted by the people concerned. Law ideal what is meant is the whole idea, ideas, desires, and thoughts with regard to the law and the perception of the meaning of the law, which essentially according Gustav Radbruch fair consists of three elements: justice, power benefits and legal certainty. These ideals are formed in the mind and conscience of man as a product of the proverbial way of life, faith and the reality of society. Law era that will affect as a general principle of law as a guide, norm criticism (rules) and a motivating factor in the implementation of the law (formation, discovery and application of the law) and legal behavior. Ideals formulated and understood the law will facilitate its formulation into various sets of rules of authority and rules of behavior, and facilitate
and additional rules. Implementation of the 1945 Constitution should be done starting from the consolidation of legal norms to the practice of national life
Purpose of law based on Pancasila is to create shelter for humans, namely to protect human passively to prevent arbitrary action, and actively to create conditions of social humane that allows the community takes place naturally so justly every man obtain ample opportunity and equal to develop the full potential of his humanity as a whole.
Human rights are based on the philosophy of integrative in Pancasila is geared towards the Almighty God, as contained in the first principle, and the principle on God means that for people who are certainly in the public prefer the obligations of late for humanity, both as a person as well as a regular officer, prioritizing obligations to bring tranquilityand peace, so Bismar Siregar.
Therefore the use of human rights in Indonesia must be balanced with the fundamental obligation, so that the basic rights and obligations of the duumvirate.14
As the basic law, the 1945 Constitution should be the reference basis so completely alive and thriving in the administration of the State and the lives of citizens (the living constitution).15
As a basic state and outlook of the nation, the 1945 Constitution does not regulate in detail the various issues, including governing human rights.
According to the 1945 Constitution, Article 1 (2) and (3) a third change, mentioned that: (2) Sovereignty belongs to the people and carried out in accordance with the Constitution. (3) State of Indonesia is a state law.
The logical consequence of the above is that every good act committed by state officials and the people should be based on the law, where the law on which the motion patterns and thinking in the administration of the state in Indonesia. Basically, the principles of state law for Indonesia has been fulfilled, and the magnitude of the line is set in 1945.
The arrangement of human rights in the 1945 Constitution, Article 27, Article 28, Article 29, Article 30, Article 31, Article 33 and Article 34 then coupled with the provisions of the new amendments, namely Article 28A through Article 28.
The inclusion of clauses on human rights in the 1945 Constitution, besides the same breath with the soul of a state law, as well as hinted in the elucidation of the 1945 Constitution is to load the Indonesian desire to build a democratic country who want to hold social justice and humanity.
Various regulations governing human rights, among others are, Law No. 8 of 1981 on the Law of Criminal Procedure, Law No. 39 of 1999 on Human Rights (hereinafter referred to as the Human Rights Act), Act No. 26 of 2000 on the Court of Human Rights as well as Presidential Decree No. 40 year 2004 on the National Action Plan on Human Rights of Indonesia year 2004 to 2009.
Law No. 8 of 1981 On Criminal Procedure Code, in particular Articles 35, 36 and 66, the same position before the law implied therein. Then in the General Explanation in point 2 of his repeated and confirmed Article 27 of the 1945 Constitution, which states: “uphold human rights and ensure all citizens are equal before the law and government, and must uphold the law and government administration, without exception”.
The arrangements regarding human rights in more detail stipulated in the Human Rights Act.
The Human Rights Act is an umbrella for all legislation concerning human rights in Indonesia.
Violations either directly or indirectly on the human rights subject to criminal sanctions to civil
14 Op Cit, hal, 54
15 Jimly Assiddiqie, Perubahan UUD 1945 dan