Constitution as a Social Contract: On the Promise of Resolution of Past Human Rights Abuses

ELSAM, Jakarta – In the attempt to resolve past human rights abuses, such initiative needs the creation of legal products to legitimate the policy. In fact, the issue often becomes both a challenge and obstacle in the resolution of past human rights abuses in Indonesia. This is because the realisation of each policy demands attitude and willingness from the Indonesian government, which is pushed by the civil society and victims. The dynamics often create lengthy debates and forgets a simple, yet fundamental issue, namely the constitution.

Amidst the debate, the constitution as a social contract can be seen as a legitimate encouragement to the efforts to resolve past human rights violations. From this argument, ELSAM and a number of constitutional law experts conducted a focus group of experts to discuss the constitutional basis of the resolution of past human rights violations. It can also be seen as a commitment and adherence of Indonesia as a state of law to respect human rights as its main pillar.

According to the coordinator of the Coalition for Justice and Truth (KKPK) Kamala Chandrakirana, the 50th anniversary of the 1965 humanity tragedy is the momentum of this national movement to reflect on efforts to resolve past human rights violations. In the 50th year, she added, we need to look from the constitutional perspective as the juridical basis, as well as the social contract, in resolving this issue.

“When we refer to the constitution, we can talk about national values. So far, discussions on the settlement of past human rights violations have often referred to international human rights conventions that are particularly vulnerable because they are regarded as a Western intervention. The Constitution is the value system of the nation. The ratification of international instruments is mandated by the constitution and not dictated by the West. The Constitution has led the way for Indonesia, but we need to find out again the model,” she said in the opening of the discussion of experts on 19 August 2015 at Oria Hotel, Jakarta.

Similarly, Ismail Hasani, lecturer in the Faculty of Law of UIN Syarif Hidayatullah stated that the constitutional approach is an additional weapon in the arsenal of the human rights argument, which has been the basis for encouraging disclosure of past crimes,

“What is collected today will be an additional tool to the movement of disclosure of past human rights crimes. I remember once when the National Commission on Women (Komnas Perempuan) advocated against discriminatory regional regulations, the defense argument, which was based on CEDAW, was alleged of liberalism. But when they used the constitutional argument, the response was different. Hopefully this will be true of efforts to resolve past human rights violations,” Ismail said.

Moreover, according to Ismail, the constitutional basis argument should also be driven by the political realities, especially the relation to the Attorney General’s Office. One is the advocacy of experts that will accelerate the process of attainment. The ability to organize the defense of survivors, he added, is the initial capital that has already begun by KKPK.

Nevertheless, according to the former Constitutional Court Justice Harjono, “Indonesianising” the core issues in the context of law and human rights is very important with regard to the 1945 Constitution. He added that this is intended to provide an understanding of human rights in the context of Indonesia.

“Many people still do not understand human rights issues properly. So the challenge is how to understand human rights? Foreign language articles are feared to cause resistance that this idea is not indigenous to Indonesia. I agree that should go back to the Preamble of the Constitution, but we must be capable of translating that human rights is equal with Pancasila. This means we are ‘Indonesianising’ the core issues in the context of human rights, to be related to the 1945 Constitution,” he said.

Meanwhile, according to Marzuki Darusman, the settlement of human rights violations in the context of the constitution is about organizing the national life to practice the Indonesian constitution. There is a linkage, according to him, between human rights issues and the 1945 Constitution.

“We do not only look at the issue of human rights from the point of functionality of the constitution but in terms of how we appreciate the basic values of the constitution and the consequences of this constitution,” explained Marzuki.

Another challenge of the practice of the constitution, according to Marzuki, is the political capacity of the government. The political capacity of the government, he added, could be a picture of the extent of the opportunities that may be achieved for the settlement of past human rights violations. It can then be designed to achieve the opportunity. In addition, it is also important to note the perception about the government on its political capacity to resolve human rights issues.

Arifin Mochtar, lecturer in the Faculty of Law of Gadjah Mada University, also stated that at the textual level, it much could be drawn from the constitution because there are many contextual meanings associated with the settlement of past human rights violations.

“The problem is that constitutionalism that is not in line with the constitution, and that the meaning of constitutionalism is drawn to politics. Settlement of past human rights violations is also drawn to the political context. It does not refer to the real constitution,” Zainal added in the same forum.

Zainal also explained that the settlement of past human rights violations in the context of constitutionalism is a contractual relationship between the people and government, which can reveal the face of a dignified nation. However, if this is done only at the textual level, there is a serious challenge ahead. This, he says, is because politicians have different ways of reading text. So what can be done is to formulate input and ideas in the writing of working papers. Besides, it also aimed to sensitize the public and the government about the constitution as a social contract that can be made use of in efforts to resolve past human rights violations, considering the state in this context holds the mandate of the people as the supreme sovereignty.

Writer: Lintang Setianti
Editor: Ari Yurino