Showing posts with label constitutional. Show all posts
Showing posts with label constitutional. Show all posts

Monday, July 26, 2010

Toward a more open society

OPINION
Mon, 07/26/2010
9:37 AM

Toward a more open society
Usman Hamid, Bogor

On July 7, I had a chance to meet Switzerland President Doris Leuthard during her visit to Indonesia.

The topic of the meeting was about today’s world’s most important issue: Islam and pluralism. Leuthard’s visit was crucial because the minaret referendum in Switzerland had become a controversy in Indonesia sometime ago.

Other participants, included prominent scholars such as Franz Magnis Suseno, Yenny Wahid and Goenawan Mohammad.

We expressed concern about the development of the issues of freedom of religion and of the tendency to disrespect principles of the rule of law, equality for all citizens and human dignity.

Religious intolerance seems to be growing stronger in our society, particularly here in Indonesia, although the context of history and politics and the threat to religious minority groups in our respective countries are very different.

Indonesia has a long history in recognizing diversity and promoting tolerance. It is unacceptable for the differences that have emerged to result in acts of violence for the benefit of a particular religion or group and to the detriment of all others.

Indonesia has developed into a stable democratic country and has begun to promote respect and recognition of universal human rights values.

In a democratic government, every citizen is allowed to choose their religious beliefs. The government should protect them, instead of interfering in such a domain.

However, the threats endangering freedom of religion have sometimes been generated through democratic institutions and mechanisms, including voting or polling. In this stage, democracy needs more values such as humanism to protect the weak, the minority, the marginalized and the oppressed.

Indonesia has seen a deficit in terms of constitutional democracy and freedom of religion such as sectarian conflict in Ambon and Poso. In other cases, hard-line groups have committed violence against minorities, both the internal and the outsiders, in which women have fallen victims.

The adoption and implementation of several new laws has contributed such to the deteriorating situation of freedom of religion in Indonesia. As an example, the imposition of a bylaw (Qanun) on Sharia in Aceh, which is followed by Islamic-centered policies at district or regency levels. The interest groups in Aceh use justification saying that the special autonomy law had become “the legal umbrella” to endorse the bylaw, let alone the Indonesian Constitution as the highest legal basis.

Another situation is found in the Constitutional Court’s ruling in 2010. The Court refused to annul the 1965 Prevention of Blasphemy and the Abuse of Religions Law that has been used to encourage persecution against non-mainstream religious groups, such as Ahmadiyah.

Using this contextual prism, we observe similar problems faced by Switzerland in relation to the Minaret referendum controversy. Such controversy also gave negative implications in religious freedom in Indonesia. Should such controversy, which indicates disrespect toward the freedom of religion happening even in a country like Switzerland, where human rights are well-established in its constitution; radical Muslim groups here would undermine democracy and human rights in Indonesia’s agenda.

In 2010 alone, eight cases of religious vigilante are recorded, including intimidation, physical assaults such as beating, and the illegal moves taken to dissolve meetings held by or for the minorities.

Recently, hard-line group claimed to be defenders of Islam dissolved a workshop on transgender issues, organized by the National Human Rights Commission and attended by legislators from the Indonesian Democratic Party of Struggle (PDI-P), using fake argumentation that communist followers attended the meeting.

Violent activities could easily happen because of the absence of law enforcement, in particular, omission by the police. Therefore, national authorities must take firm action against any incitement to violence committed by extreme groups. Last week, the National Police chief Gen. Bambang Hendarso Danuri promised there would be no raid by mass organizations during Ramadan.

Apart from lack of law enforcement, peace education for all sectors of the young generation is essential.

Cultural education is an important precondition to take care of freedom. Like what our founding fathers often emphasized, freedom is not only political freedom, but also openness of mind and spirit, regarding the world without prejudice, unhampered by restrictions and narrow-minded distrust.

We hope that Leuthard’s visit to Jakarta will always remind us to give serious attention to the issues of religious tolerance. By promoting the Covenant on Civil and Political Rights, this issue should be discussed in every human rights dialogue held between Indonesia and Switzerland, as well as inside the human rights framework of the European Union Comprehensive Partnership Agreement (CPA) so that we all move further toward a more open society.

The writer is the coordinator for the Commission for Missing Persons and Victims of Violence (Kontras).

Wednesday, July 7, 2010

Complaint paves way for court review of bylaws

HEADLINES
Wed, 07/07/2010
9:32 AM

Complaint paves way for court review of bylaws
 
Arghea Desafti Hapsari, The Jakarta Post, Jakarta

An authority to adjudicate constitutional complaints will open the Constitutional Court’s door for those wanting to contest rights-breaching regulations, including discriminative bylaws adopted in regions, an expert says.

A constitutional complaint is generally defined as a request made by citizens to the court for adjudication on violation of their constitutional rights due to the exercise of public power or state action.

On Tuesday, Constitutional Court chief justice Mahfud M.D. said it was time for the court to be granted the authority to pass rulings on constitutional complaints.

Constitutional law expert Irman Putra Sidin told The Jakarta Post that discriminative bylaws, such as those regulating curfews for women, could be contested at the court should it welcome constitutional complaints.

“In fact, the court will be able to review all kinds of regulations that are deemed to violate the constitutional rights of any citizen,” he said.

In Indonesia, the authority to review bylaws and other products of law falls under the Supreme Court.

The court uses existing laws as a touchstone.

Irman said, should the country provide for constitutional complaint within its legal system, the Constitutional Court would be able to review bylaws using the Constitution as a reference point.

Mahfud said, “If the Supreme Court’s ruling turned out to be wrong… the way [to fix it] is through a constitutional complaint.”

Most democracies have provided a mechanism for constitutional complaints in their legal systems, including Germany, South Africa and South Korea.

The call for the provision of constitutional complaint in Indonesia mounted especially in 2008 after repeated violence levelled against members of the Ahmadiyah religious sect. Many have argued that the state had allowed for such incidents to occur by taking limited and even no action against those responsible.

Constitutional Court justice Akil Mochtar said the authority to adjudicate constitutional complaints should be granted through the Constitution because “it stipulates all of the court’s authorities”.

“But amending the Constitution is not easy to do. Therefore, the authority [to rule on constitutional complaint] can be granted to the court through a law,” he added.

Irman said the court did not need to wait for a law to be deliberated to regulate its authority to pass judgments on constitutional complaints.

“The Constitutional Court is the interpreter of the Constitution. It can decide for its own authority through its rulings. But one question remains; is the country’s political condition ready to accept the fact that the court will be able to review virtually every regulation?” he added.

 
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