194 BUILDING HUMAN RIGHTS LEGAL INSTITUTIONS
AND JUSTICE DURING THE MANAGEMENT OF THE COVID-19 PANDEMIC IN INDONESIA
Imam Asmarudin
Fakultas Hukum, Universitas Jendral Soedirman (Unsoed) Purwokerto, Indonesia (Corresponding author) E-mail: [email protected]
ABSTRACT
The spread of the Covid-19 pandemic in Indonesia has a tremendous impact on all aspects of Indonesian people's lives. The basic rights of citizens as creatures created by God Almighty to maintain life and livelihood are also affected, including in the case of the formation of legal institutions carried out during the Covid-19 pandemic which was made to regulate and limit the movement of people. Public. The state in making a legal system needs to reflect the values of humanity and justice as a form of implementing a state of law based on Pancasila, building a legal system that is just and based on human rights is absolutely necessary, this is done in order to safeguard the basic rights of the community. Every community has the right to live and defend their lives, the policies issued must be balanced with a targeted implementation pattern so that potential human rights violations can be avoided. In reality, the implementation of the legal institutions that have been created still causes various frictions, and there is even a tendency for conflicts to occur in the field between the community, the apparatus and the Covid-19 Task Force, both of which result in administrative law and reporting to the police. Therefore, the government and the community needs to have a shared spirit to build a legal system that reflects human rights and fair during the handling of the Covid-19 pandemic.
Keywords: Law Institutions, Justice, Human Rights, Covid-19 INTRODUCTION
The Covid-19 virus is one of the deadliest viruses in the world, this virus was first discovered in Wuhan, Hubei Province. which was originally named as 2019 Novel Corona (2019.nCoV) but on February 11, 2020 WHO officially announced 2019 Novel Corona (2019.nCoV) to be Coronavirus Disease (COVID19). In Indonesia, for two cases of positive Covid-19 patients in Indonesia was announced on March 2, 2020, and since then reports of the number of positive Covid-19 patients in Indonesia began to increase. Even in January 2021, the total cases in several countries such as the UK , the United States of America (USA), Brazil, Russia, Spain, and Italy passed the total positive cases of COVID-19 in China from where Corona Virus Disease 2019 COVID19 first appeared1. According to the World meters data as of October 3, 2021, the number of Covid-19 cases reached 235,417,004 person2. In Indonesia alone, in September 2021 it reached more than 4 million, but developments in the handling of the COVID-
1 Muhamad Beni Kurniawan, Government Legal Politics in Handling the Covid-19 Pandemic From the Perspective of Human Rights to Health (Government Legal Politics In Handling Of COVID-19 Pandemic Reviewed From The Right To Health's Perspective), https://ejournal.balitbangham.go. en/index.php/ham/article/view/1628/pdf, accessed on October 3, 2021
2 https://www.worldometers.info/coronavirus/, accessed on October 3, 2021 at 9.30 WIB
195 19 pandemic as of October 2, 2021 nationally began to slow down, the daily recovery rate increased to 2,380 people recovered per day, with a cumulative cure rate of up to 95.8%, to be exact, 4,042,215 people1.
The outbreak of the Covid-19 outbreak in Indonesia had a tremendous impact on all aspects of the life of the Indonesian people. The basic rights of citizens as creatures created by God Almighty to maintain their lives are also affected, especially in the aspects of health, economy as well as welfare, education, and employment. The most impact in the community is the extraordinary economic impact, especially for the lower middle class, as massive layoffs in companies reaching thousands employee. The issue of handling the COVID-19 Pandemic in Indonesia to this day is still the main focus of the government, both the Central Government and Regional Governments, the policies taken are almost all directed at fighting the COVID-19 pandemic. There have been various policies restricting people's movement are implemented by the government to suppress the spread of the Covid-19 virus, including various regulatory products ranging from the Central Government to the Regional Government in order to combat the Corona Virus Disease 2019 (COVID-19) pandemic for the protection of citizens.
Several policies issued during the handling of the Covid-19 pandemic, including the first officially in the form of Large-Scale Social Restrictions (PSBB) on March 31, 2020, even though it has been stipulated. However, problems raised in its implementation as it turns out that there is no uniformity, as Indonesia with this policy is considered to still have doubts in handling Covid- 19 at that time2. The format and naming of the Large-Scale Social Restrictions (PSBB) later developed into the transitional Large-Scale Social Restrictions (PSBB), Enforcement of Emergency Community Activity Restrictions (PPKM) and Enforcement of Four-level Community Activity Restrictions (PPKM)3.
Based on data submitted from the current Covid-19 unit, the condition of the Covid-19 pandemic in Indonesia has not yet ended, even though the trend has started to decline, but we still have to be careful because we need to watch out for new variants4. Facing the situation of the spread of the Covid-19 pandemic, the government issued several policies to tighten and limit the community activities in crowded areas which aim to limit and reduce the spread of the Covid-19 virus.. Policies issued by the Government through the Minister of Home Affairs with the issuance of the Instruction of the Minister of Home Affairs (Inmendagri) No. 15 of 2021 concerning the Covid-19 Emergency PPKM in the Java and Bali Region with several amendments, namely, thr Inmendagri No. 18 of 2021 and the last Minister of Home Affairs No. 19 of 2021, the policy is a legal instruction ? that must be obeyed and used as a basis for the Central Government and thrRegional Governments to impose restrictions on community activities. But what happened in the community, turned out to be a polemic, problems emerged that had to be faced by the Government as well as by the community itself. The implementation the Community Activity Restrictions is very diverse in its application in the area, including in the enforcement process.
1https://covid19.go.id/berita/kesembuhan-covid-19-terus-meningkat-mencapai-4042215- orang. accessed on October 3, 2021
2Mei Susanto; Teguh Tresna Puja Asmara, Economy Versus Human Rights in Handling Covid-19: The Economy Versus Human Rights In Handling Covid-19: Dichotomy Or Harmonization https://ejournal.balitbangham.go.id/index.php/ham/article/view/1211/pdf, accessed on October 1, 2021
3 https://kompaspedia.kompas.id/baca/infografik/kronologi/kebijakan-covid-19-dari-psbb- hingga-ppkm-empat-level. accessed on October 2, 2021
4 https://setkab.go.id/tren-kasus-covid-19-menurun-menkes-tetap-harus-hati-hati-dan- waspada/, accessed on October 4, 2021
196 The application of these legal institutions in reality, it creates friction and there is even a tendency for conflicts to occur in the field between the community, the apparatus and the Covid- 19 task force, which have legal consequences administratively as well as reporting to the police. As a result of the imposition of these restrictions, it is difficult for the community to carry out activities, thus, economic difficulties are the main reason for the community to refuse to follow the strict activity restrictions, especially for small-scale traders. The basic human rights to maintain life and the right to live are very basic during the Covid-19 pandemic situation. Therefore, it is not surprising that many people feel that the policies issued by the government are very difficult for the community to comply. However, from another aspect it is the State's obligation to be responsible for the safety of its citizens from spreading Covid-19 virus.
The question raised in this article is to examine whether during the handling of Covid- 19, the legal instructions issued by the government reflect the spirit of building the protection of human rights and justice? This study is expected to provide an understanding and hope that the legal institutions that are created must be built to reflect a legal system that upholds human rights and justice to all.
RESEARCH METHODOLOGY
The method in writing this article uses the legal research method through a statutory approach, a conceptual approach, and a case approach1. Approaches to legislation relating to human rights, such as in the Indonesian constitution, laws on human rights, ratified laws relating to human rights as well as other regulations issued as implementing regulations, including statutory regulations -Invitations related to preventing the spread of Covid-19. conceptual approach is used to see the conceptions of human rights in the perspective of legal protection. a case approach to see how the implementation of the Covid-19 handling policy in Indonesia reflects aspects of the fulfillment of human rights. Collecting data through literature studies, online research2, as well as observing the practice of handling Covid-19 policies that have emerged/viral and are summarized in media coverage, to assess and find legal institutions that reflect human rights and justice.
DISCUSSION
The Indonesian state based on the constitution is a legal state where the composition of the state is regulated as well as possible in the law so that all powers of the instruments of government are based on law. People should not act independently according to everything that is against the law. The principle of the rule of law is a country that it is not ruled by people, but by law (state not governed by men, but by laws). Therefore, in a state of law, the rights of the people are fully guaranteed by the state and against the state, on the contrary, by submitting and obeying all government regulations and state laws3.
Every act or behavior of the rulers and their people must be based on the law and at the same time the purpose of the rule of law is stated, namely to guarantee the human rights of its people. Law as a tool is a regulation that can prevent the authorities from acting arbitrarily. He is the limits of freedom between the individual and the ruler in every social interaction so that the law is a protection for public peace. Without the enactment of law in society, chaos and
1 Peter Mahmud Marzuki, Legal Research (Revised Edition) (Jakarta: Prenadamedia Group, 2016), p. 133-180.
2 Online research is carried out by searching through media on the internet with keywords such as Covid-19, Human Rights, Justice and Legal Institutions
3 Abdul Mukthie Fadjar (2016), History, Elements and Types of Rule of Law, Malang:
Equivalent Press, p.6
197 arbitrariness will arise. The law requires justice to create peace and tranquility in society. Law is just what it means to make justice. This is because an unjust law contradicts its own existence1. In the Anglo-American tradition, the concept of the rule of law was developed by the pioneering A.V. Dicey as "The Rule of Law"2. According to Julius Stahl, the concept of the rule of law which he calls the term "rechtsstaat" includes four important elements, namely:
1. Protection of human rights;
2. Power sharing;
3. Government by law;
4. State administrative court.
While A.V. Dicey describes the existence of three important characteristics in every rule of law which he calls the term "The Rule of Law", namely:
1. The supremacy of law (Supremacy of Law);
2. Equality before the law (Equality before the law);
3. The principle of legality (Due Process of Law).
The four "rechtsstaat" principles developed by Julius Stahl can basically be combined with the three "Rule of Law" principles developed by A.V. Dicey to mark the characteristics of the modern rule of law today.
Fair Legal Institution
Legal institutions are made to regulate human behavior so that there is compliance towards an orderly, safe and comfortable life. Likewise, the state in making a legal institution also needs to reflect human values as a form of implementation of the Pancasila state, so that there is a balance between the state and its people, the Indonesian state is a legal state, which aims to protect the entire Indonesian nation and the entire homeland of Indonesia, promote public welfare, educate the nation's life, and participate in carrying out world order based on freedom, eternal peace and social justice. The firmness and seriousness of the Indonesian state to assert itself as a state of law is contained in its Constitution, namely in Article 1 paragraph 3 of the 1945 Constitution of the Republic of Indonesia. (four) principals, namely the protection of human rights, division of power, government based on laws, and Administrative Courts3. A.V. Dicey divides the concept of a rule of law state into three pillars, namely, the supremacy of the rule of law, equal position in law (equality before the law), and guarantees for human rights4. Apart from the concept of state of law that has several pillars, Indonesia also has the philosophy of Pancasila which must also be implemented in a state of law, the fifth principle of Pancasila Social Justice for All Indonesian People is one of the pillars that must also be implemented in creating a legal institution, justice for the people to get social protection Obtaining prosperity both economically
1 Hidayat Yasin Wiharyan, Human Rights Content in the Formation and Analysis of Legislations (Substantive Technical in the Field of Human Rights Instruments Formation and Analysis of Legislations with a Human Rights Perspective), BPSDM KUMHAM Press, 2020, Depok, p. 25
2 Mokhammad Najih, (2014). Politics of Criminal Law Conception of Criminal Law Reform in the Ideal of the State of Law, Malang: Equivalent Press, p. 5
3 S.F Marbun, SH., MHum, "State Administrative Courts and administrative efforts in Indonesia", Yogyakarta, FH UII Press, 2010, p. 9
4 AV. Dicey, An Introduction to the study of the law of constitution, English language book society and Mac Hillan, London, 1971, pp. 202-203, see also Wade and G. Godfrey Philips, Constitutional law, Longmans, London, 1965, in the book Dr. S.F Marbun, SH., MHum, "State Administrative Courts and administrative efforts in Indonesia", Yogyakarta, FH UII Press, 2010, p. 9
198 and spiritually in the form of tranquility and the certainty of getting social security makes the people feel protected by the State, especially in the midst of the Covid-19 outbreak which has mutated into several variants and is still not over.
The words "fair" and "justice" have become a central value in modern Indonesian culture1. Fair (Ar; al-adl), one of the characteristics that must be possessed by humans in order to uphold the truth to anyone without exception, even though it will harm himself2. Etymologically al-adl means impartial, impartial; or convey one to another (al-musawah). Another term for al-adl is al-qist al-misl (equal parts or similar). Terminologically fair means "equating" something with another, both in terms of value and in terms of size so that something is not biased and does not differ from one another. Adil also means "to take sides or hold on to the truth"3.
Acting fairly is closely related to rights and obligations, the rights possessed by a person, including human rights, must be treated fairly. Related rights and obligations are given to those who are entitled to receive them. Therefore, the law based on trust must be determined fairly without being accompanied by hatred and other negative traits, (QS. 4:58)4.
Justice is one of the most widely discussed legal goals throughout the history of legal philosophy. Due to the importance of justice, in studying the philosophy of law the question always arises, what is justice really? This question was answered by the philosopher Ulpinus5 who was later adopted by the book of Justice Justinian by saying that: Justice is a constant and constant will to give to each part (Iuatitia est constans et perpetua voluntas lud suum euique tribuendi). Aristotle has also written extensively on justice. He stated that justice is a policy related to human relations. It further says that the word "fair" contains more than one meaning. Fair can mean according to law and what is comparable, that is, what should be. Here it is shown that a person is said to be fair if that person takes more than the proper part. Aristotle has formulated what is called justice. He distinguishes in two kinds of justice6. namely corrective justice which has the same meaning as commutative justice and distributive justice which requires distribution of rewards. This corrective justice is different. This last justice is based on transactions, whether voluntary or not, and this usually occurs in the field of civil law, for example in exchange agreements. Justice is a safety valve in every society, where this justice in law, testimony, faith, action, love, anger and others, is a source of peace and peace for humans.
Justice in legal institutions is very necessary for the realization of a peaceful and peaceful society. Especially during the handling of Covid-19, the role of fair legal institutions is an important element in its implementation in the community, so that the goals of peace and peace can be realized.
Legal Institutions with Human Rights
1 Van Apeldoorn, Introduction to Legal Studies, (Jakarta: Pratnya Paramita Publisher) 1999, p.88
2 Anonymous, Encyclopedia of Islamic Law (Jakarta: Publisher PT Ichtiar Baru Van Hoeve,
1996), p. 50
3 Ibid p. 51
4 Tohaputra Ahmad H. Drs, Al-Qur'an and its Translation (Semarang: CV. As Syifa Publisher, 2000), p.185
5 Darji Darmodiharjo and Shidarta, Fundamentals of Legal Philosophy (Jakarta: PT Gramedia Pustaka Utama, 2002) pp. 155-157
6 Manan Abdul, Reform of Islamic Law in Indonesia. (Jakarta: PT Raja Grafindo Persada, 2006) p. 111
199 In addition to justice in every legal institution made by the authorities, it is necessary to reflect the values of protection and recognition of human rights as one of the important pillars in the establishment of a legal state, the constitution of the State of Indonesia has confirmed it in CHAPTER XA HUMAN RIGHTS in article 28A to article 28J, Article 28A of the Constitution of the Republic of Indonesia year 1945 affirms "everyone has the right to live and has the right to defend his life and life".
Law No. 11 of 2005 concerning the ratification of the International Covenant on Economic, Social and Cultural Rights, article 12 also stipulates that everyone has the right to enjoy the highest attainable standard of physical and mental health”, it shows that in the context of human rights, states have the obligation to respect, protect, and fulfill human rights. Therefore, in the Covid-19 emergency as determined by WHO, the Indonesian government must clearly follow up with the best efforts by the Indonesian government. This means that in making policies in the Covid-19 situation, especially regarding restrictions on people's movements, it does not necessarily free the government from state principles that are obliged to respect human rights.
Principles of Human Rights are the things that form the basis of theories and concepts of Human Rights that must be applied in every policy. The Human Rights Principles include1: 1. Universal (universality);
2. Human Dignity (Human Dignity);
3. Equality and Non-Discrimination;
4. Cannot be revoked (inalienability);
5. Indivisibility, Interrelated, and Interdependence;
6. State Responsibility.
Komnas HAM noted that in an emergency stage, derogable human rights can be limited.
However, this must be within the corridor established by law, measurable, and not arbitrary and accountable2. The impact of Covid-19 on human rights, based on Komnas HAM who has conducted rapid research and provided policy eighteen recommendations from the human rights perspective on the governance of COVID-19 in Indonesia3 which include strengthening legality, centralized policy platforms, regional quarantine policies. and proportional, strict mobilization and crowd policies. Other recommendations are related to up-to-date and transparent information on the movement of distribution, reduction of the number of occupancy in correctional Institutions and detainees, application of strict sanctions in the form of fines and criminal sanctions in special events. Maximum use of technology, direct life support, home education model that does not add to the burden, adding medical personnel and health support equipment and ensuring the fulfillment of the rights of medical personnel. Building a special mechanism for persons with disabilities, fighting stigma for victims, families and special protection for medical workers and volunteers, proportional distribution of medical personnel, volunteers, facilities and supporting infrastructure. Building community solidarity and ensuring the smooth handling of Covid-19, policies for Indonesian citizens abroad, especially migrant workers residing in Covid-19 countries, protection for workers and workers. And finally, maximum health services for victims, families, people under monitoring (ODP), patients under surveillance (PDP), and the community.
1 Research and Development Agency for Law and Human Rights, “Human Rights Parameters on Draft Legislations”, (Jakarta: Balitbang Law and Human Rights, 2016), p. 9, also read in Hidayat Yasin Wiharyan's module, Material on Human Rights in the Formation and Analysis of Legislation (Substantive Technical in the Field of Human Rights Instruments Formation and Analysis of Legislation with a Human Rights Perspective), BPSDM KUMHAM Press, 2020, Depok.
2 https://www.komnasham.go.id/index.php/news/2020/7/1/1466/problematika-ham-pada- masa-pandemi-covid-19.html, accessed 4 October 2021
3 Ibid
200 During the Covid-19 Pandemic, which has been for almost 2 years, the economic conditions of the community are increasingly difficult and uncertain, and this makes everyone will try to maintain their lives, even to the point of having to deal with the apparatus of the Covid-19 Task Force during the period of restrictions on community activities. Associated with the phenomenon that often occurs gives an illustration that constitutionally every community has a constitutional right to defend their life, to live and maintain their economy, they must carry out work, trade, or other activities which are carried out during the implementation restrictions on community activities it cannot be done completely. This makes the legal system implemented by the government cannot be fully accepted by the entire community and it causes disappointment among the community which ultimately creates a sense of injustice for the community, especially those in the private sector and those in economic difficulty.
The state as an organ that has constitutional authority as stated in article 34 paragraph 2 of the 1945 Constitution of the Republic of Indonesia "The state develops a social security system for all people and empowers the weak and incapable in accordance with human dignity". This shows that constitutionally the State does have an obligation to develop and provide social security in a fair and equitable manner for all people, especially in the Covid-19 situation as currently the social security system is very much needed and needed by the affected community.
The impact of the implementation of the Emergency Community Activity Restriction policy is extraordinary, therefore a spirit of synergy is needed for both the central government and local governments to create a legal institution that is just and has human rights. Recommendations issued by the National Human Rights Commission at which level? must become a reference for the government in making policies during the handling of the Covid-19 pandemic, with the existence of a legal system that is fair and human rights can lead to a just and prosperous Indonesian society.
Several policies that have been implemented by the government during handling the spread of the Covid-19 virus have come to the attention of the National Human Rights Commission. In handling the spread of Covid-19, a civil emergency discourse has been raised, but Komnas HAM has rejected it because it has the potential for human rights violations to occur1. From the results of the evaluation and monitoring carried out by Komnas HAM, there are several policies which at the implementation level are under the spotlight, including those regarding regional quarantine and proportionally, although the government does not implement it, a number of regions have indirectly implemented partial quarantine. The problem of overcapacity and crowds that still occur in detention centers and prisons by providing early release for prisoners who meet the requirements.
The implementation of social security carried out by the government is also a State Policy in ensuring the sustainability of the lives of its citizens, namely through the Direct Cash Assistance (BLT) program, pre-employment cards, the Family Hope Program (PKH), electricity tariff relief assistance, and there is also assistance with basic food packages. Even though at the policy level it is good, in the field of implementation there are still various problems, ranging from data and technical distribution which still need to be clarified, to the target recipients of aid which must be fair and equitable.
1 https://www.komnasham.go.id/index.php/news/2020/4/16/1354/komnas-ham- monitoring-tata-kelola-penanggulangan-covid-19.html accessed on 6 October 2021
201 Human rights restrictions certainly need to be determined by laws and regulations by looking at the proportionality principle as a relevant factor in determining proportional or appropriate restrictions, which include1:
1. The nature of the human rights affected;
2. The importance of the legitimate purpose of the restriction;
3. The nature and extent of the restrictions;
4. The relationship between restrictions and objectives; and
5. Other methods or methods available that are less restrictive to achieve the desired goal
Restrictions on the fulfillment of rights must be stipulated by laws and regulations with the sole purpose of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of morals, religious values, security and public order in a society. democratic. Thus, especially at the stages of harmonizing, concluding, and consolidating the design concept legislation requires guidelines for the material content of human rights as a reference in the context of regulating and limiting human rights.
As a form of implementing state responsibilities, especially effective implementation in the field of law, the government through the Ministry of Law and Human Rights, in particular the Directorate General of Human Rights has established Regulation of the Minister of Law and Human Rights Number 24 of 2017 concerning Guidelines for Content Materials on Human Rights. Humans in the Formation of Legislation (Permenkumham No. 24 of 2017). With the issuance of the Minister of Law and Human Rights Number 24 of 2017, it is hoped that in every formation of legislation it can reflect and refer to the material guidelines for the content of human rights2.
Seeing the conditions that occur in the field of State obligations in building a legal institution that is just and with human rights, it is absolutely necessary to do this, it is done in order to maintain the basic rights of every community, guarantee life and the right to live, the policy issued must be balanced with the pattern its implementation remains targeted so that potential human rights violations can be avoided.
CONCLUSION
Human rights are a matter of national and state life, as an effort to protect human rights during a pandemic the government issues several legal institutions, but must ensure that there is no discrimination in its implementation, this is done so that every policy and step taken still respects human dignity, protects human rights and proportional. In addition, there needs to be justice which is a safety valve in every society, where this justice in law, testimony, faith, action, love of anger and others, is a source of peace and peace for humans. building a legal institution that is just and has human rights must be done in order to maintain the basic rights of every community, guarantees of life and rights to life are guaranteed, policies issued must be balanced with a pattern of implementation that remains targeted so that potential violations of human rights can be avoided.
1 Hidayat Yasin Wiharyan, Human Rights Content in the Formation and Analysis of Legislations (Substantive Technical in the Field of Human Rights Instruments Formation and Analysis of Legislations with a Human Rights Perspective), BPSDM KUMHAM Press, 2020, p. 34
2 Ibid, p. 35
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