HUMAN RIGHTS PROTECTION AS A BASIC FOUNDATION OF
SUSTAINABLE DEVELOPMENT IN INDONESIA 

According to the Human Development Report 2007 launched by the United Nation Development Programme, The Human Development Index for Indonesia is 0.728 which gives the country a rank of 107th out of 177 countries. It is ranked 7th among the South East Asian countries. Nevertheless Indonesia, however, has abundant natural resources, huge human capital and relatively well developed infrastructure as compared to the other South East Asian countries.

The most significant cause for the condition mentioned above is the drawback of sustainable development in Indonesia. Some people strongly believe that raising the challenge of sustainable development can help the Indonesian policy debate go forward in a better direction. At the heart of the problem is how to deal with promoting the sustainable development of Indonesia. One of the best approaches can be viewed from the perspective of human rights protection for the people.

Basically sustainable development encompasses three pillars based on environmental, economic, and social values which are interdependent and mutually reinforcing with human rights. Between sustainable development and human rights there is an inseparable relationship whereas the respect for human rights has been recognized as a prerequisite for development. For instance, people’s ability to participate in sustainable development is hindered when fundamental rights of people are threatened or lack the basic human rights of food, health, education, shelter, freedom of expression and the right to political participation. In another word, without respect for human rights, the ability of people to move to a sustainable future will be hindered.

Furthermore, development is unsustainable where the rule of law and equity do not exist; where ethnic, religious or sexual discrimination are rampant; where there are restrictions on free speech, free association and the media; or where large numbers of people live in abject and degrading poverty. Human rights which are based on respect for the dignity and worth of all human beings are usually rooted in ethical inscriptions in the country’s constitutional and legal framework.

The legal system of Indonesia based on the ideas of the supremacy of the constitution whereby the constitution is given the highest authority. In implementing the essential rights and freedoms to human dignity, which are proclaimed in the Universal Declaration of Human Right of 1948, are a common standard of achievement for all people and all nations. The Constitution of Indonesia has clearly provided similar provisions under Chapter XA as fundamental rights of the citizens. Included among these fundamental rights are the right to live (Art. 28A), right to education and to benefit from science and technology, art and culture (Art. 28C), equal treatment before the law (Art. 28D), freedom of religion, associate and to express opinion (Art. 28E), right to enjoy a good and health environment and own personal property (Art. 28H), right to life and freedom from discrimination (Art. 28I).

Based on the explanation above, the protection of human rights guaranteed by the 1945 Constitution, therefore, becomes imperative as a prerequisite for development. Unfortunately, according to the Report from Legal Aid Institution (Jakarta) in 2007, the number of complaint on human rights violations which have been accepted is around 1.140 cases with total victims roughly 20.837 people. Then the question arises as to what is the mechanism to protect human rights as constitutional rights of citizen? According to Danie Bran, the best way to deal with the protection of human rights is by challenging the state and constitutional issues through the Court.

Constitutional Review

In recent history, the concept of a constitutional adjudication has become a consistent feature of democratic governance, particularly in Europe. At present, however, this no longer applies only to Europe. After the amendment of the 1945 Constitution, Indonesia established a Constitutional Court as a response to the demand for a strengthening of the checks and balances in the system of state administration. Its authorities are stated in Article 24C of the 1945 Constitution, namely: reviewing laws against the Constitution, determining disputes over the authorities of state institutions whose power are given by the Constitution, deciding over the dissolution of a political party, deciding over dispute on the results of a general election, and an obligation to decide the case regarding to impeachment of President and/or Vice President.

In the context of human rights protection, the power of constitutional adjudication by reviewing laws against the Constitution known as “Constitutional Review” is the core of the jurisdiction of the Constitutional Court. As of late 2007, barely three years after its establishment, the Constitutional Court has decided 33 out of 133 cases of constitutional review with the verdict that the laws reviewed were unconstitutional. Most of these cases violated the human rights guarantee under the Constitution.

Nonetheless, the constitutional review system in Indonesia is only confined to the review of laws. Consequently, all the government actions and government regulations that are believed to violate the provisions on human rights contained in the Constitution cannot be reviewed comprehensively by the Constitutional Court. In order to strengthen sustainable development in Indonesia by promoting human rights protection, the constitutional review system should be reformed. Using the comparative studies methodology, we can learn and adopt the feature of constitutional review system from Germany and Korea since their systems are comparable with Indonesia.

Some recommendations that can be addressed from those countries are: (1) the constitutional review system than can review the constitutionality of all type of legislation, and (2) constitutional complaint which can be lodged by an individual towards their constitutional rights. To conclude, using two additional systems of constitutional review mentioned earlier, we can totally promote the human rights protection of the people as the basic foundation of sustainable development in Indonesia.