Chapter 8 Summary: Human Rights, Citizenship and Immigration A. HUMAN RIGHTS I. Definitions a.

Human, Citizen and Constitutional Rights According to Art.1 (1) of Law no. 39/1999 on Human Rights, human rights are a set of rights attached to the essence and existence of every person as a creature of God and are gifts from God that must be respected, upheld and protected by the Rule of Law, State and Government and every person, for the honor and the protection of human dignity. Let it be noted, that human rights differ from civil rights. While human rights is a natural right that all human beings have independently and is incumbent; without being granted by anyone, while civil rights depend on nationality; in other words, it is a right granted by the state. Another aspect of right is constitutional rights, which protection is guaranteed under and by the 1945 Constitution, whilst another is legal rights, which is also related to constitutional rights but differ in the source of law which bases its guarantee, and is based on the guarantee of laws and subordinate legislation. b. Human Rights Violation

The definition of a human rights violation is stated Art.1 (6) of Law no.39/1999, any act of a person/group of persons, including state apparatus, undertaken either intentionally/ unintentionally/ by negligence, which unlawfully reduces, obstructs, limits, and/ alienates a persons/groups human rights guaranteed under this law, and does not received/ there is concern that it will not receive fair and appropriate legal treatment. However, there are several types of violation on human rights, namely: (1) General human rights violation, (2) Criminal act of Genocide, which is defined as an act done to

annihilate a specific nation/race/group/religious entirely, and lastly (3) crimes against humanity, which is a conscious systematic attack aimed at civilian population. II. Brief History of Human Rights in the World The history of modern human rights started with the signing of Magna Charta on 1215 by King John Lackland. The Charter was made in England and was the first treaty to signify the first fight for human rights. Therein lays the limitation of the anointed king of the time, and every one of the rulers of England afterwards. Note that there is no protection whatsoever though. After the Magna Charta, there was the Petition of Rights which was signed by King Charles the First on the year 1628. It was followed by the more flexible petition, which is namely the Bill of Rights on 1689; the result of a significant struggle in human history that is the Glorious Revolution. Explain the Glorious Revolution. The idea of human rights was greatly developed by philosophers and scholars of that time, such as John Locke, Rousseau, Montesquieu and Hobbes. They developed the idea of the protection of human rights. Thereafter, the scholars train of thought led to the implementation of human rights protection within the Declaration of Independence of the United States of America on July 4th 1776. This in turn led to the Frenchs own implementation in their Declaration of Human Rights and Citizens Rights on the 13th of September 1789. However, the first widely implemented fight regulated by law, weak and unbinding as it is, was the Universal Declaration of Human Rights written by the United Nations, on 1948, and it became a kind of model for all the countries to create and develop human rights amongst their own nation. And thus, it was alike to what happened to Indonesia also, ignoring the fact that it was made in 1945, prior to the UDHR, as it was by the BPUPKI that Indonesias founding fathers took the idea of human rights protection and promotion from the

U.S.As Declaration of Independence as well as Frances Declaration of Human Rights and Citizens Rights. Due to the gradual development of human rights, there are divided per generations. The first generation is regarding Civil and Political Rights. The examples of Civil rights include: a. The right to self-determination b. The right to life, c. The right to not be sentenced to death d. The right not to be tortured, etc. While examples of Political rights include: a. The right of expression or to express opinion b. The right of association and peaceful assembly c. The right to equal treatment before the law d. The right to elect and be elected, etc. The second generation of human rights pivots around social and cultural rights. Regarding social and economic rights, there are: a. The right to work b. The right to receive equal wage for equal work c. The right to food d. The right to education, etc. While cultural rights include: a. The right to participate in cultural activities b. The right to enjoy the progress of science, etc. The third generation is the most current one, and it is the right to development, its examples include:

a. The right to obtain a healthy environment b. The right to have decent housing c. The right to obtain adequate health services, etc. However, let it be noted that there is a theoretical fourth generation, namely that which is the right to have an equal relation between powers; horizontally speaking. In other words, it is the equality of the ruler and the ruled. III. Formulation of Human Rights in 1945 Constitution The conception of human rights were originally an old idea. It had begun ever since the time of Syariat Dagang Islam (the Islamic Trade Union) , Boedi Utomo, Perhimpunan Indonesia, and the change of Syarikat Dagang Islam to Syarikat Islam in 1911, leading to BPUPKI debates on the eve of Independence However, during the drafting of the 1945 Constitution, some of the founding fathers considered the idea of human rights to be a reflection of individualistic and liberal western views, thus it is too identical to the idea of colonialism and imperialism. Thus the idea were objected by members of the BPUPKI, namely Soekarno and Soepomo. They thought of the idea as contradictory towards the integralistic principle, Soekarno voiced strongly his argument against the implementation of the rights of the citizen, saying that a familial aspect is more in line with Indonesia and with it, social justice. Yet in the end, there were seven articles due to complaint and strong argument, stated by Moh. Hatta and Moh. Yamin. One of them is the citizens right to expression, as Moh. Hatta, despite agreeing that a familial aspect must be applied in Indonesia, had argued that it is needed as our states sovereignty is on the people. Moreover, the right to citizen freedom was already a constant state practice and anyway, it was necessary to protect their freedom.

The problem that caused the difference of opinion from our two most famous founding father were due to the mistaken conceptions. According to Soekarno and those who were opposed to the inclusion of human rights to the 1945 Constitution was because they thought it was birthed out of liberalism and the like. However, human rights had actually come from absolutism: from the opposition between ruler and the ruled. The examples of the inclusion of absolutism that resulted in the inclusion of human rights is; The Declaration des Droits de lhomme et du Citoyen in France, UDHR, US Declaration of Independence. However, a closer look upon Art.28 will reveal that there is no actual guarantee for the freedom of association, freedom of peaceful assembly, nor the freedom of expression, it means that before they are further stipulated by law, these rights have not existed yet. The limitation on Art. 28 which made no guarantee of rights in any way led to the struggle of promoting human rights in Indonesia. And it was this struggle that was made in order to legalize and make human rights protection a black on white fact. This was first realized then during the creation of the MPRS Stipulation no.XIV/MPRS/1966, which allowed two things: 1.The formulation of a human rights charter; which indicated an awareness of the 1945 Constitutions lack of guaranteeing any human rights 2. An Ad Hoc Committee: divided to thuman rightsee sections, namely the formulation on division of power among state institutions (II) , formulation of supplementary elucidation on Constitution (III) , on human rights (IV) . They afterwards drafted and made the Charter on Human Rights and the Rights and Obligations of Citizens. Surprisingly, the Ad Hoc Committee worked well to the point of having an extension of 6 months and after a meeting, its name was changed to Committee B. However,

the Ad Hoc Committee B was discontinued by the Fifth General Session of the Provisional Peoples Consultative Assembly in 1968 due to the fact that it did not reach decision to ratify the ad hoc committee as stipulation. IV. Human Rights under the 1949 RIS Constitution and the 1950 Provisional Constitution As the UDHR have already been written by the time the 1949 RIS Constitution was made, it was greatly influenced by it. Even, it was one of the pioneering constitutions in the world which adopted the provisions of the UDHR comprehensively and completely. The 1950 Provisional Constitution adopted all of the articles concerning human rights from the 1949 RIS Constitution, albeit with a few modifications. The 1949 RIS Constitution had 36 Articles covering human rights, namely Articles 7 to 43. While the 1950 Provisional Constitution divided it to two portions; Chapter 5 on Basic Rights and Freedom on Humans with Articles 7 to 34 and Chapter 6 on Basic Principles with Articles 35 to 43. According to Moh. Hatta, the underlying Principle of 1950 Provisional Constitutions Human Rights articles were: a. State of Belief in The One and Only God [Art. 43] b. Peoples will being the basis of the rulers power [Art.35] c. Economy regulated under principle of family aspect [Art.38] d. Property rights constitutes a social function [Art.26] The meaning behind Property rights constitutes a social function is that property cannot be used by owner in an arbitrary manner while impairing the right of other people/endangering the community. Note that the government has right to use property rights of individuals for public purposes, and this fact is based on prior Constitutions, namely the 1919 German Constitution [Weimar Constitution] and the 1947 Italian Constitution. The main points of the 1949 RIS and 1950 Provisional Constitution are the rights of freedom, the prohibition on human rights violation, which are as follows:

Provisions on the rights of freedom includes: 1.Freedom of association and peaceful assembly [Art.20] 2.Freedom of expression [Art.19] 3.Protection of life and property [Art.8] 4.Freedom of property right, either individual/collective [Art.26] 5.Right to obtain education [Art.30], etc. Prohibition on human rights violation covers: 1. Slavery, slave trade, and serfdom [Art.10] 2. Inhumane/degrading torture [Art.11] 3. Arbitrary arrest/detention [Art.12], etc. The 1949 RIS and 1950 Provisional Constitution also enlists citizens obligation as well as rights to defend state, the right to comply with the law, to comply with the regulations and obligations of the State as well as the fulfillment of the below mentioned rights: 1. Peoples physical and spiritual development [Art.41] 2. Eradication of illiteracy [Art.41] 3. Teaching of Nationalism [Art.41] 4. Social security [Art.36] 5. Peoples Welfare [Art.37] 6. Prevention of monopoly [Art.37] 7. Observe different needs in different communities [Art.25] 8. Equality of student rights [Art. 41] 9. Public hygiene and health [Art.41] 10. General Education [Art.41]

V. Human Rights in the 1945 Constitution following the Reform Era After seeing the implementation and the effects of the inclusion of human rights within the 1949 and 1950 Constitutions, and the turmoil of the New Order, the reinstatement of the 1945 Constitution came with conditions that it must be amended. And thus, the amendment with its ratification caused a more comprehensive application of human rights Art.28A (1) to Art.28J (2) : a. 28A (1) 1. (i) Everyone has the right to live and (ii) defend their life and living. b. 28B (1) 1. (i) Every person shall be entitled to find a family and (ii) procreate through legitimate marriage c. 28B (2) 1. (i) Every child has the right to survive, grow, develop and (ii) to be protected from violence and discrimination d. 28C (1) 1. (i) Every person has the right to develop themselves through

fulfillment of basic needs, (ii) obtain education and (iii) receive benefits of science and technology, arts and culture, all for the enhancement of their quality of life and welfare of mankind e. 28C (2) 1.The right to improve themselves for their rights to build the nation f. 28D (1) and 28I 1.Equality before the law; human rights are not prejudiced under any circumstances

g. 28D (2) 1.Right to work and fair wage and treatment in working relationship, etc.. h. 28D (3) for Indonesian Citizens 1.Citizens have equal opportunities in governance i. 28D (4) 1.Equal rights to citizenship status j. 28E (1) 1. Freedom of choice in (i) Religion, which is a non-derogable right, (ii) Education, (iii) Occupation, (iv) Citizenship, (v) Taking residence and/or leaving State territory and the right to return which includes the right to gain political asylum from other countries k. 28E (2) 1.Freedom in holding and expressing belief though thought and attitude in accordance to conscience l. 28E (3) 1.Freedom of expression, peaceful assembly and association, etc. In context of other peoples rights, Art.28I states that there is the right to respect culture and tradition even over time, that the protection and enforcement of human rights is the responsibility of State, and that the exercise of human rights must be done in accordance to principle of a democratic rule of state. Other than 28A-J, Art.29 (2), it is guaranteed of freedom to exercise freedom of religion by State. Whilst regarding citizens right it is regulated in Arts.27 (1-2) , 28, 30 (1) , 32 (1-2)

VI. Laws and Regulations Instruments Indonesias own law regarding human rights are the 1945 Constitution (2nd Amendment) adopted MPR Stipulation, Law no 5/1998 on Convention against torture, Law no 8/1999 on Consumer Protection, MPR Stipulation No.XVII/MPR/1998 and Law no.39/1999 on Human Rights. However, regarding international conventions, among which Indonesia had signed were the International Convention against Apartheid in Sports, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, while the ones that Indonesia had both signed and ratified were; Convention on Rights of the Child, Convention on the Elimination of All Forms of Distinction against women, Convention on the Political Rights of Women. VII. The Establishment of Komnas HAM and State Ministry The Komnas HAM were made as a response to the growing awareness of the importance of respecting, protecting and promoting human rights in Indonesia. It was made based on the Presidential Decree no.50/1993, even supplemented by the recommendation of United Nations and on latter time, by Law no. 39/1999. It was made with the purpose of ensuring the implementation of human rights in accordance to Pancasila, 1945 Constitution, UN Charter, UDHR, as well as enhance the protection of human rights. While the State Ministry for human rights Affairs were made based on Decree of the President of R.I. no.355/M Year 1999. Its main duties and function include: making policies, coordination, promoting peoples participation and lastly, reporting and evaluation. The merger between State Ministry for human rights Affairs with Department of Law and Legislation [Department of Justice and Human Rights] was done on a later date, under Presidential Decree no.177/2000, on which the merged organizations were called the Department of Law and human rights. It includes Directorate General for human rights Protection as well as the human rights Research and Development Agency.

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VIII. Role of Non-Government Organizations Non-governmental organizations (NGO) are always active in dedicating themselves in the field of human rights, and they appear to be a catalyst to the growth on the promotion of its development. Such NGOs include: Yayasan Lembaga Bantuan Hukum Indonesia (YLBHI), PBHI, Kontras, Elsam, Amnesty International, ICRC International Commission of Jurist, Lawyers Committee for human rights, UN Commission of human rights, etc. B. CITIZENSHIP LAW I. Definition of Citizenship Citizens are people living in territory of State, and they can be citizens of state, or inhabitants but not citizens of state or even foreign nationals temporarily located in state. In accordance to the 1945 Constitution Art.26 (1), Citizens shall be persons who are native born Indonesians and persons from other nations who are legalized by law as citizens. Citizens are persons who enjoy constitutional rights and obligation Law no.63 of the year 2006, Art.4 mentions the types and definitions of Indonesian Citizens: 1. Fulfilling the law and regulations becoming an Indonesian Citizen(WNI) 2. Child born from Parents who are Indonesian Citizens 3. Child born from Indonesian parent and foreign parent 4. Child born with Indonesian mother and Father with no nationals, etc. II. Post-Independence Citizenship Laws According to Soepomo, those who reside in Indonesia during the Dutch East Indies era could be categorized as follows: 1. Dutch nationals and other foreigners 2. State inhabitants and non-state inhabitants

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3. Europeans, indigenous people and Foreign Easterners 4. Dutch People, non-Dutch indigenous nationals, and non-Dutch Foreign nationals. At that time, a persons nationality was determined under Law of July 28, 1850 and amended by Law of May 3, 1851. These two laws adapted the ius soli principle, namely citizenship determined based on the location of the childs birth. However, ever since the independence, all of the regulations prior changed due to the change of conception of Indonesians and thus the newest law that regulates Citizenship in Indonesia is Law no. 12 of the year 2006. The applied principle for citizenship is mentioned under Art.26(3), namely the application of Ius Sanguinus, Ius Soli, Single Citizenship and Limited Dual Citizenship. III. Requirements of and Procedures for Obtaining Citizenship In order to obtain citizenship, the procedures as well as requirements are explained within Law no.63 of the year 2006. On Article 9, the list entails: 1. 18 years old or is already married 2. Has occupied Indonesia for 5 years consecutively or 10 years in the long term 3. Healthy body and healthy mind 4. Is able to use Indonesian, recognize Pancasila & the 1945 Constitution 5. Has never been imposed with criminal charge 6. Does not have another citizenship 7. Has an occupation/fixed income 8. Pays naturalization fee to Treasury

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IV. The Loss of Citizenship The loss of Citizenship is also regulated within the Law no. 63 of 2006. It is stipulated under Art. 23, and of its many requirements, those mentioned below are merely examples: a. Obtains another citizenship b. Joins foreign military service w/o prior approval c. Being outside Indonesia and does not report to Indonesian Representative for 5 Years, etc. V. Requirements and Procedures for Regaining Citizenship According to Art.31, any person who lost their citizenship may regain it after following the procedures stipulated in Articles 9, 18 and 22. One of the main requirements is to stay within Indonesian territory for a period of 5 consecutive years for another reason beside state duties. VI. Citizens Right and Obligation Being a citizen of Indonesia grants you the guarantee of your own constitutional rights as well as citizens rights. This means that an Indonesian has benefits of their own and may go to lengths a Foreigner may not. One of the examples of favorable treatment is that a foreigner may have restrictions on their working rights, where an Indonesian may not. C. IMMIGRATION LAW I. Immigration Regulations Immigration law is regulated under Law no.9 of the year 1992 and it states that Indonesians has the right to leave or enter Indonesia as they please so long as they are not restricted due to tort and the like, and that foreigners have to obtain permission by an official to enter. In other words, they must obtain a visa.

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II.

Prohibition and Prevention Article 3 of the Law no.9/1992 states that every person who enters or leaves

Indonesia must possess a travel document. Foreign nationals must enter Indonesia having obtained a visa issued, stating that they have no intention to disrupt national security and order. In Art. 6 it is stated that foreigners who are citizens of a state which is, on prior agreements established the lack of need for visas; such as ASEAN countries, Foreign nationals who possess a Re-entry Permit, and the like, are exceptions who do not need visa upon arrival. Indonesia may choose to reject granting a foreigner entry if the foreigner: a. Does not have a valid Travel Document b. Does not have a visa, without terms c. Suffers mental disorder or a communicable diseases endangering public health d. Has no Re-entry Permit or does not have a permit to enter another state e. Proven to have a false statement in order to obtain Travel Document and/or visa. III. Travel Documents of the Republic of Indonesia There are many types of Travel Documents, and the below mentioned have the children under 16s inclusion with their parents/guardians. a. Ordinary passport (for Indonesians) b. Diplomatic passport (for Indonesian diplomats) c. Official passport (for non-diplomatic Indonesians, duty-related travel) d. Hajj passport (for Indonesians doing Hajj) e. Foreign national passport (for Foreigners who has Permanent Stay Permits)

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f. Travel documents as passport for Indonesians, foreigners, official passports (issued for government purposes)

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Chapter 8 Review: Human Rights, Citizenship and Immigration D. HUMAN RIGHTS IX. Definitions a. Human, Citizen and Constitutional Rights It is clear here, and easy to the eyes that they set about the definition as well as the source of it clearly, namely that of the Law no. 39/1999 on Human Rights saying that human rights are a set of rights attached to the essence and existence of every person as a creature of God and are gifts from God that must be respected, upheld and protected by the Rule of Law, State and Government and every person, for the honor and the protection of human dignity. Afterwards it tells you the differentiation between human rights, citizen rights and constitutional rights. Even though it eventually gets there, the explanations here as well as the rest of the chapter goes around and around to the point that its redundancy is just tiring. Nevertheless, it points out, in its own time the definitions of citizens right as well as constitutional right on its own terms based on the law. a. Human Rights Violation

The definition as well as the types of violation on human rights are correctly and more or less efficiently explained. However, there was no indication of how it would be judged. No mention of any court nor tribunal whatsoever that regulates the matter in the International level. It is true that this is the Constitutional Law of Indonesia, however certain general facts, especially considering the fact that Indonesia has voiced certain wishes to be a party to one of the tribunals mentioned below. Thus after some research, the below argument is what I found.

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As was in the case of the European Convention on Human rights being enforced by the European Court of Human Rights, so are other human rights violations enforced by courts all around the world. For example, to adress the war crimes along with crimes against humanity that officials have done in Serbia and Herzegovina, an ad hoc Court was made, which was the International Court Tribunal for Yugoslavia. Other ad hoc Tribunals to adress similar issues to that of Serbia and Herzegovina also exist for Sierra-leonne (ICTSL), and Rwanda (ICTR), and others. However, as of 2002, a permanent tribunal adressing crimes in violation of international humanitarian law was made, which is the International Criminal Court (ICC). The ICC has their own Statute, which is the Rome Statute. This tribunal is unique as it is complementary to national jurisdiction and also brings only individuals who commits a crime written in Article 5 of the Rome Statue. X. Brief History of Human Rights in the World The history written in the book speak in very general terms, and does not explain nearly everything thoroughly, perhaps more interested in explaining the history of the laws regulating human rights rather than the history of human rights itself. The idea of human rights along with its protection, started in the western states between the 13th and 18th century. John Locke, along with J.J. Rousseau, Montesquieu and Hobbes developed and influenced the idea of Human Rights Protection and thus spread the awareness of the its importance. However the true catalyst to propel human rights to be of international concern was the World War II. The Early Development of Human Rights in England In the western world, human rights protection started with the signing of the Magna Charta by King Lackland of England in 1215, which includes habeas corpus allowing people to appeal to imprisonment without trial, as there was massive imprisonment without cause at

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the time. It was followed by the making of the Petition of Rights on 1628, which governed taxation to be first consented by parliament, reaffirmation of habeas corpus, no soldiers may be quartered upon citizenry and that no martial law is in effect in times of peace.1 Thereafter, though not immediately met, based on English political activists of 1647, the Levellers demands the An Agreement of the People was produced; setting constitutional principles and states liberty of conscience in matters of religion, freedom from conscription, equal application of the law to all people.2 Thereafter, due to the Glorious Revolution, Parliament made the 1689 Bill of Rights3 which included the freedom to petition the Monarch and freedom from cruel and unusual punishment as well as freedom from being fined without trials. Another important pinpoint in English human rights history was the 1833 Slavery Abolition Act, which outlawed slave trade throughout the British Empire. Englands Development on Human Rights Resulted a Domino-Effect on the U.S. and France Englands allocation that human rights are to be developed as part of the law and should be fought for had influenced other states to do the same. The result was the Declaration of Independence in the U.S. on the 4th of July, 1776. This document proclaimed the American Colonies freedom from the British empire, and defined the principals organs of government and their jurisdiction, along with basic rights of citizen. The first ten ammendments, which was called the Bill of Rights effective as of 15 December 1971, allowed and protected freedom of speech, religion, the right to keep and bear arms, the freedom of assembly and the freedom to petition. It also prohibits unreasonable search and seizure, cruel and unusual punishment and compelled self-incrimination, prohibits double jeopardy and other relevant provisions of human rights.

1 2

http://www.humanrights.com/what-are-human-rights/brief-history/magna-carta.html http://www.liberty-human-rights.org.uk/human-rights/human-rights/history-of-human-rights/index.php 3 Must be differentiated from that of the United States Bill of Rights.

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The US Declaration of Independence influenced and France and moved them to make the Declaration of the Rights of Man and of the Citizen (French: La Dclaration des Droits de lHomme et du Citoyen) which also proclaimed the guarantee of the rights to liberty, property, security and resistance to opression. It also sees the law as an expression of general will, thus inteding to promote equality of rights. International Instruments regarding Human Rights a. The Geneva Conventions and Additional Protocols Due to the concern of (some) human rights being derogable in times of war, international humanitarian law exists to regulate the rights in times of war, and this lead to the te initiative of the Geneva committee and the invitation of the Swiss Federal Council, 16 European countries and several American states to confer and decide that a convention for the treatment of wounded soldiers in combat should be made, thereby the First Geneva Convention (GC) was made in 1864. It provides the obligations to care, without discrimination, of wounded and sick military personnel. Consequently the conference occurred several times more in the future and resulted in three other documents, which are the Second GC in regard to wounded, sick and shipwrecked members of the armed forces at sea as well as shipwreck victims, the Third GC regulating treatment, rights and obligations of prisoners of war, and lastly the Fourth GC adressing civilians in times of war. b. The United Nations and the Universal Declaration of Human Rights As I have aforementioned stated, having caused massive damage and inhumane results, World War II was the catalyst of the enactment of Human rights protection, and thus it had birthed, as of April 1945, the United Nations(UN), which is an international organization determined to save suceeding generations from scourge of war, which had now twice occurred and brought untold sorrow to mankind.

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After the UN was established, under Eleanor Roosevelt, they drafted the Universal Declaration of Human Rights(UDHR), adopted by the UN as of 10th December 1948. In the UDHR, it proclaimed freedom of speech and belief, freedom from fear and want, to be the highest aspiration of the common people, and that all human beings are born free and equal in dignity and rights. c. International Bill of Human Rights The UDHR, though giving a moral standard regarding human rights, bears no force of law. This led to the UN Human Rights Commission to create a binding law regulating human rights, and thus resulted in two major documents: the International Covenant on Civil and Political Rights(ICCPR) and the International Covenant on Economic, Social and Cultural Rights(ICESR). It is both these covenants combined that is known as the International Bill of Human Rights. ICCPR focuses on; right to life, freedom of speech, religion and voting, while ICESR focuses on food, education, health and shelter. d. European Convention on Human Rights Adopted in 1953 by The European Council and influenced by the UDHR, the European Convention on Human rights is enforced by the European Court of Human Rights in Strasbourg, France. e. Other Conventions regulating Human Rights Besides the UN and Europe, American, African and Asian countries also produce regional documents for the protection and promotion of human rights. For example, the American Convention on Human Rights in 1978, the Cairo Declaration on Human Rights in Islam of 1990, the African Charter of Human and Peoples rights (1981) and the Asian Human Rights Charter of 1986.

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However, the explanations of the generations outdid itself, it was very detailed and even gave a speculation on the possible fourth generation of human rights. Nevertheless, in current times, the third generation, namely that of the right to development are rapidly developing; it has its own workshops and seminars in order for the public to participate and know of their own right and the need to fight for it. XI. Formulation of Human Rights in 1945 Constitution As it has been addressed in the aforementioned, the idea of human rights is already recognized long before the independence in Indonesia. There are a great number of historical records from the colonisation and independence movement eras which can be related to the struggle for human rights. For example, Boedi Utomo, Perhimpunan Indonesia (the Indonesian Association), and the debates in BPUPKI sessions on the eve of Indonesias independence.

Consequently, at the time 1945 Constitution draft was being discussed, the idea of human rights was regarded as a reflection of individualistic and liberal western views, opposed by our founding father at that time. Therefore, the initial draft of 1945 Constitution did not include any provisions on human rights. Ir Soekarno and Mr Soepomo, as well as the drafters, intended the Consitution to stand on the basis of family aspect principle opposing liberalism and individualism. However, this decision raised an issue. If there is no provisions on human rights in the Constitution, there will be a possibility of a rule of power state that contradicts the concept of sovereignty of the people. Therefore, Moh. Hatta and Moh. Yamin, agreed on the principle of family system, they considered it necessary to include certain articles on human rights principles in the Constitution. Moh. Yamin argued that fundamental regulation is not related to liberalism, but only to the necessity to protect freedom, which must be recognised in the Constitution.

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In fact, human rights were not born out of individualism and liberalism, but rather from absolutism as the reaction to the absolutism of the rulers arbitrary actions. For example, the Declaration of Independence in the United State of America was also the result of the oppposition by the American people who felt they were oppressed by the English Government which had colonised them. Likewise, the UDHR in 1948 was a reaction against the facist governments in Germany, Italy, and Japan, which had trampled over human rights.

There are seven articles in the Constitution albeit in the a limited manner. Soekarno and Soepomo were still on their stance to reject the guarantee of human rights since they deemed it as contradictory to the integralistic principle. For example, Article 28 does not provide any guarantee as it states that certain rights will be stipulated by law, meaning that before they are stipulated by law, such rights do not exist yet. In the end, after continuous struggles to adopt human rights protection, MPRS members did not reach an agreement on ratifying the articles as a stipulation. The Charter on Human Rights, which had been formulated by the MPRS, is now left only in the annals of history. XII. Human Rights under the 1949 RIS Constitution and the 1950 Provisional Constitution In 1949, the international worlds atmosphere was greatly influenced by the establishment of the UDHR on December 10, 1948. Additionally, it was also the year of the preparation for the establishment of the Republic of the United States of Indonesia. Therefore, an agreement was reached for including all provisions on human rights into the 1949 RIS Constitution.

Furthermore, after the Republic of the United States of Indonesia became a unitary state in 1950, all of human rights articles in the previous Constitution were adopted in the 1950

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Provisional Constitution. There are in total of 36 articles on human rights, namely from Article 7 to Article 43. The comprehensive provisions on human rights were divided into Part V and VI, namely Basic Rights and Freedoms of Human Beings and Basic Principles, consecutively. In general, the provisions are regarding rights or freedoms, prohibition of human rights violations, and the obligations of the state and the citizen Truth be told, reading this was a giant inconvenience. The language was repetitive and the point was already made by the first sentences of the section. Actually, there was no need to explain every crook and can laboriously. For example, the elaboration of the main points of the 1949 RIS and 1950 Provisional Constitution are the rights of freedom, the prohibition on human rights violation, and its stated examples: Provisions on the rights of freedom includes: 1.Freedom of association and peaceful assembly [Art.20] 2.Freedom of expression [Art.19] 3.Protection of life and property [Art.8] 4.Freedom of property right, either individual/collective [Art.26] 5.Right to obtain education [Art.30], etc. Prohibition on human rights violation covers: 4. Slavery, slave trade, and serfdom [Art.10] 5. Inhumane/degrading torture [Art.11] 6. Arbitrary arrest/detention [Art.12], etc. The 1949 RIS and 1950 Provisional Constitution also enlists citizens obligation as well as rights to defend state, the right to comply with the law, to comply with the regulations and obligations of the State as well as the fulfillment of the below mentioned rights: 11. Peoples physical and spiritual development [Art.41] 12. Eradication of illiteracy [Art.41]

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13. Teaching of Nationalism [Art.41] 14. Social security [Art.36] 15. Peoples Welfare [Art.37] 16. Prevention of monopoly [Art.37] 17. Observe different needs in different communities [Art.25] 18. Equality of student rights [Art. 41] 19. Public hygiene and health [Art.41] 20. General Education [Art.41] Are totally unnecessary, just to prove a point. XIII. Human Rights in the 1945 Constitution following the Reform Era Following the reform era, amendments to the 1945 Constitution are made. The provisions on human rights and citizens rights in the 1945 Constitution have undergone fundamental changes. The particular seven articles on human rights cannot be regarded as sufficiently a guarantee on human rights protection. With the ratification of the Second Amendment to the 1945 Constitution in 2000, the new substance of the basic provisions on human rights in the 1945 Constitution has been included in Article 28A paragraph (1) to Article 28J paragraph (2). The changes are fundamentally modifying Article 28 that was initially intended to be citizens rights rather than human rights, which apply to all persons irrespective of their nationalities. The original Article 28 should be removed and completely replaced with Article 28A to 28J. Since various provisions articulated in the 1945 Constitution constitute the substance originating from the wording of MPR Stipulation Number XVII/MPR/1998 concerning Human Rights, which subsequently became Law Number 39 Year 1999 concerning Human Rights, the latter laws need to be studied thoroughly in order to understand the substance of the 1945 Constitution.

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Conclusively, it is sufficient to say that provisions on human rights adopted in the Indonesian legal system originated from international law instruments, including international conventions and the UDHR. And in relation to such international instruments, recently, Indonesia showed intent to ratify the Rome Statute, thereby allowing themselves to be under the jurisdiction of the International Criminal Court, saying that such ratification will occur in 2014 at the latest.4 Here was another section brought to the elaborative redundant mess of an explanation. Many words writ were wasted. XIV.Laws and Regulations Instruments Indonesia has actually made a huge leap forward compared to other nations with as much diversity and current stage of economical development. Especially considering that we have adapted many of the International Instruments on human rights to our own law. Law no 39 of the year 1999 has enveloped most of the protected rights held valuable among the international community. Incredulous, I am not sure what they stipulate, whimsically speaking. XV. The Establishment of Komnas HAM and State Ministry Indonesias establishment of Komnas HAM was a huge leap forward for the fight of rooting down human rights. It, along with State Ministry, showed initiative the government took in order to cope with the developments of problems of human rights implementation. However, the current status of Komnas HAM had made it look like an ineffective bunch. Nevertheless, they also tend to show initiative in seeking out cases and tries to hasten the search in order for the wounded side of the party to get reparations or justice.5

4 5

http://www.thejakartapost.com/news/2013/03/06/ri-ratify-rome-statute.html http://www.thejakartapost.com/news/2013/05/11/city-vs-komnas-ham-over-squatters.html

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In this case it was due to the unexplained eviction and the fact that armed personnel remained on standby near the area thus intimidating the locals. Komnas HAM immediately asks the Governor about what they call an inhumane act on the governments part. XVI. Role of Non-Government Organizations NGO are always present in the humanity projects in Indonesia, often it is they that do more than that of the government. One of the most contributing NGOs is undoubtedly Unicef, and other foundations that contribute to education, clean water, vaccines and the like. E. CITIZENSHIP LAW I. Definition of Citizenship Let it be noted that the citizens are people living in territory of State, and they can be citizens of state, or inhabitants but not citizens of state or even foreign nationals temporarily located in state. In accordance to the 1945 Constitution Art.26 (1), Citizens shall be persons who are native born Indonesians and persons from other nations who are legalized by law as citizens. Citizens are persons who enjoy constitutional rights and obligation For example, stating the Law no.63 of the year 2006, Art.4 which mentions the types and definitions of Indonesian Citizens: Fulfilling the law and regulations becoming an Indonesian Citizen(WNI), A Child born from Parents who are Indonesian Citizens, Child born from Indonesian parent and foreign parent, Child born with Indonesian mother and Father with no nationals, etc. II. Post-Independence Citizenship Laws The opinion regulated by the notorious politic and intelligent person of the time, namely Soepomo, those who reside in Indonesia during the Dutch East Indies era could be categorized as follows: Dutch nationals and other foreigners; State inhabitants and non-state inhabitants; Europeans, indigenous people and Foreign Easterners; and Dutch People, nonDutch indigenous nationals, and non-Dutch Foreign nationals.

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This meant that during that particular time, a persons nationality was determined under Law of July 28, 1850 and amended by Law of May 3, 1851. These two laws adapted the ius soli principle, namely citizenship determined based on the location of the childs birth. Yet again, this is a very discomforting section which is filled with redundancy and wasted explanatory elaboration. However, ever since the independence, all of the regulations prior changed due to the change of conception of Indonesians and thus the newest law that regulates Citizenship in Indonesia is Law no. 12 of the year 2006. The applied principle for citizenship was explained simply and clearly, along with its legal basis mentioned under Art.26(3), namely the application of Ius Sanguinus, Ius Soli, Single Citizenship and Limited Dual Citizenship. III. Requirements of and Procedures for Obtaining Citizenship In order to obtain citizenship, the procedures as well as requirements are explained within Law no.63 of the year 2006. On Article 9, the list entails: 1. 18 years old or is already married 2. Has occupied Indonesia for 5 years consecutively or 10 years in the long term 3. Healthy body and healthy mind 4. Is able to use Indonesian, recognize Pancasila & the 1945 Constitution 5. Has never been imposed with criminal charge 6. Does not have another citizenship 7. Has an occupation/fixed income 8. Pays naturalization fee to Treasury

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IV. The Loss of Citizenship The loss of Citizenship is also regulated within the Law no. 63 of 2006. It is stipulated under Art. 23, and of its many requirements, those mentioned below are merely examples: a. Obtains another citizenship b. Joins foreign military service w/o prior approval c. Being outside Indonesia and does not report to Indonesian Representative for 5 Years, etc. V. Citizens Right and Obligation Being a citizen of Indonesia grants you the guarantee of your own constitutional rights as well as citizens rights. This means that an Indonesian has benefits of their own and may go to lengths a Foreigner may not. One of the examples of favorable treatment is that a foreigner may have restrictions on their working rights, where an Indonesian may not. F. IMMIGRATION LAW I. Prohibition and Prevention Indonesia has a unique relation with its neighboring countries and has built a regional association, namely ASEAN. It is agreed that ASEAN countries may travel to their neighboring countries without any need of a visa, suffice to say that they stay no longer than the regulated days; a free visa travel is effective for up to 30 days.6

The ASEAN Framework Agreement on Visa Exemption; Kuala Lumpur, Malaysia. July 25, 2006.

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