by Dharma Na GaraMedical records
Medical records
Doctors who practice medicine are obliged to make notes which must be made immediately after the patient receives services. Every health service must record and document the results of examinations, treatment, actions and other services that have been provided to patients.
Article 46 Indonesia’s Law Number 29 Year 2004 concerning Medical Practice determines:
- Every doctor or dentist in carrying out medical practice is obliged to keep a medical record;
- Medical records as intended in paragraph 1 must be completed immediately after the patient has finished receiving health services;
- Every medical record must contain the name, time and signature of the officer who provides the service or action.
From the provisions of Article 46 of the Medical Practice Law above, it is clear that the recording referred to is medical records. In practice, the term medical record has developed into other terms, namely:
- Medical Document = Dokumen Medis;
- Medical Notes = Catatan Medis;
- Medical Record = Rekam Medis;
- Health Record = Rekaman Kesehatan;
- Personal Health Record = Rekaman Kesehatan Pribadi;
- Medical Report = Laporan Medis.
Every recording (medical record) that is made must contain the name, time and signature of the doctor, dentist or certain health worker who provides health services directly. In the event that an error occurs in recording, correction must be made immediately by crossing out without removing the corrected note and initialing the doctor, dentist or health service worker concerned. Recording and documenting the results of examinations, treatment, actions and other services that have been provided to patients, is what generally called a medical record.
Organizing medical records at a health service facility is one way to measure the quality of service at that health service. Based on the data in the medical record, it will be possible to assess whether the service provided is of good quality or not, and whether it meets standards or not. For this reason, medical records were originally regulated in Minister of Health Regulation Number 749a/MENKES/PER/XII/1989 concerning Medical Records, then updated in Minister of Health Regulation Number 269/MENKES/PER/III/2008 concerning Medical Records. This is further regulated in the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records.
Meaning of Medical Records:
- In article 1 letters 1, 6 and 7 of the Minister of Health Regulation Number 269/MENKES/PER/III/2008, what is meant by medical record is a file containing notes and documents regarding patient identity, examination, treatment, procedures and other services that have been provided to the patient. Notes are writings made by a doctor or dentist regarding all actions taken to patients in the context of providing health services. Documents are notes from doctors, dentists and/or certain health workers, reports of supporting examination results, daily observation and treatment records and all records in the form of radiology photos, imaging and electro-diagnostic records.
- In the explanation of Article 46 paragraph (1) of Law Number 29 Year 2004 concerning Medical Practice, what is meant by medical records are files containing notes and documents regarding patient identity, examinations, treatment, procedures and other services that have been provided to patient.
- In the Regulation of the Minister of Health of the Republic of Indonesia Number 55 Year 2013 concerning the Implementation of Medical Recorder Work, Specifically in Article 1 paragraph (2) Medical Records are files containing notes and documents regarding patient identity, examination, treatment, procedures and other services to patients at Health facility.
- According to Ery Rustiyanto, medical records are who, where and how the patient was treated while in hospital to complete the medical record, it must have sufficient written data in a series to produce a diagnosis, guarantee, treatment and final result[1].
- According to Gemala R. Hatta, a medical record is a file containing notes and documents regarding patient identity, examination, treatment, procedures and other services provided to patients in health service facility[2].
- According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records, Medical Records are documents that contain the patient’s identity, examination, treatment, actions and other services that have been provided to the patient.
The content in Medical Records
According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records Article 26 paragraph 6 states:
The contents of the medical record as intended in paragraph 2 at least consist of:
- Patient identity;
- Results of physical and supporting examinations;
- Diagnosis, treatment, and health service follow-up plans; And
- Name and signature of the Health Worker providing Health services.
According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records Article 26 paragraph 7 states: Medical records as intended in paragraph (2) must be made by the person in charge of the service.
For further information, please consult your problem with us.
Source:
Zaeni Asyhadie, 2017, Aspek-Aspek Hukum Kesehatan di Indonesia, Rajawali Pers, Depok.
Peraturan Menteri Kesehatan Republik Indonesia No. 24 Tahun 2022 tentang Rekam Medis (Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records).
[1] Ery Rustiyanto, 2009, Etika Profesi Perekam Medis dan Informasi Kesehatan, Graha Ilmu, Yogyakarta, h. 5.
[2] Gemala R. Hatta, 2008, Pedoman Manajemen Informasi Kesehatan di Sarana Pelayanan Kesehatan, Universitas Indonesia, Jakarta, h. 73.
by Dharma Na GaraCCTV as Evidence.
Closed-Circuit Television or CCTV which means using a signal that is closed, unlike ordinary television which is a broadcast signal relying on analog signals.[1] Analog signals are used to transmit video from one or more cameras to a receiving device (receiver). Analog cameras record images, then send them via a coaxial cable to a Digital Video Recorder (DVR). The DVR then converts the video from an analog signal to a digital signal, compresses the data, and stores it on the hard drive. The monitor, which is used to display the recorded results, must be connected to the DVR. The DVR can also be connected to a router and modem to display video over the internet in an internal network.[2]
CCTV is a video-based surveillance system (Video Surveillance) using a camera. This video-based surveillance system is used to increase all activity of the object being observed besides that it can also be a tool that can provide information directly on what is happening at that time.[3]
The aim is to have a positive psychological effect on those around the camera. So that the person feels monitored and would not act criminally even though there is no one around.[4]
Many of our clients underestimated CCTV as evidence on the case which they experienced, they thought that CCTV just wasting their money and time, but the truth is CCTV is very helpful in revealing facts and truth regarding a legal event. CCTV is a shortcut of arguing, because CCTV reveals fact and truth regarding an event which experienced by someone or some people at a certain time and place. Therefore, it’s very important to have CCTV in your private residence or office, it’s very helpful for us as law enforcer to reveal fact of an event that occur, moreover CCTV which has high quality of audio and video. CCTV also is one of the prevention devices to avoid a criminal act happens to you.
Source:
[1] https://id.wikipedia.org/wiki/Televisi_sirkuit_tertutup
[2] https://tekno.kompas.com/read/2020/07/05/10170047/sama-sama-kamera-pengawas-apa-bedanya-ip-camera-dan-cctv-?page=all
[3] https://medium.com/@cecepahmadfauzi93/apa-itu-cctv-dd5e9bcb2adf
[4] Ibid.
by Dharma Na GaraSummary of Republic Indonesia Constitution and Human Rights Law in Indonesia.
Summary of articles of Republic Indonesia Constitution and Human Rights Law in Indonesia.
Republic Indonesia Constitution Year 1945 or Undang-undang Dasar Negara Republik Indonesia Tahun 1945
Article 1
- The country of Indonesia is a Unitary Country in the form of a Republic;
- Sovereignty rests in the hands of the people and is exercised according to the constitution;
- The Country of Indonesia is a country of law.
Article 4
- The President of the Republic of Indonesia holds governmental powers according to the Constitution.
- In performing his/her duties the President is assisted by one Vice President.
Article 24
- Judicial power is an independent power to administer justice in order to uphold law and justice.
- Judicial power is exercised by a Supreme Court and judicial bodies under it in the general court, religious courts, military courts, state administrative courts and by a Constitutional Court.
- Other bodies whose functions are related to judicial powers are regulated in a law.
Article 26
- Those who become citizens are the native Indonesian people and from other nations who have been legalized by law as citizens.
- Residents are Indonesian citizens and foreigners who reside in Indonesia.
- Matters concerning citizens and residents shall be regulated by law.
Article 27
- All citizens shall have an equal position before the law and government and are obliged to uphold the law and government without exception.
- Every citizen has the right to work and a living that is decent for humanity. Every citizen has the right and obligation to participate in efforts to defend the state.
Article 28
Freedom of association and assembly, expressing thoughts orally and in writing and so on is stipulated by law.
Chapter XA **)
Human rights
Article 28 A
Everyone has the rights to live and has the rights to defend his/her live and life.
Article 28B
- Everyone has the rights to form a family and continue their offspring through a legal marriage.
- Every child has the rights to live, grow and develop and has the protection rights from violence and discrimination.
Article 28C
- Everyone who has the rights to develop him/herself through the fulfillment of the necessities of life, has the right to receive education and to benefit from science and technology, art and culture, in order to improve the quality of his/her life and for the welfare of mankind.
- Everyone has the rights to promote him/herself in the collective struggle for his rights to develop his community, nation and the country.
Article 28 D
- Everyone has the rights to recognition of guarantees, protection and legal certainty that is just and equal treatment before the law.
- Everyone has the rights to work and to receive fair and proper compensation and treatment in an employment relationship.
- Every citizen has the rights to equal opportunities in government.
- Everyone has the rights to citizenship status.
Article 28E
- Everyone is free to embrace religion and worship according to his religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to live in the territory of the country and leave it, and to have the right to return.
- Everyone has the rights to freedom of belief, to express thoughts and attitudes, according to their conscience.
- Everyone has the rights to freedom of association, assembly and expression.
Article 28F
Everyone has the right to communicate and obtain information to develop their personal and social environment, and the rights to seek, obtain, possess, store, process and convey information using all available channels.
Article 28G
- Everyone has the rights of protection of his / her personal, family, honor, dignity and property under his/her control, as well as to the feeling of security and protection from the threat of fear to do or not do something which constitutes human rights.
- Everyone has the rights to be free from torture and treatment that degrading human dignity and has the right to obtain political asylum from other country.
Article 28H
- Everyone has the rights to live in physical and spiritual prosperity, to have a place to live and to have a good and healthy living environment and the rights to obtain health services.
- Everyone shall receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice.
- Everyone has the rights to social security which enables him/her to complete development as a dignified human.
- Everyone has the rights to own private property and these rights cannot be taken over arbitrarily by anyone.
Article 28I
- The rights to life, the rights not to be tortured, the rights to freedom of thought and conscience, the rights to have a religion, the rights not to be enslaved, the rights to be recognized as a person before the law and the rights not to be prosecuted on the basis of retroactive law are human rights which cannot be reduced under any circumstances.
- Everyone has the right to be free from discriminatory treatment on any basis and is entitled to protection against such discriminatory treatment.
- The cultural identity and rights of traditional communities are respected in accordance with the times and civilizations.
- The protection, promotion, enforcement and fulfillment of human rights are the responsibility of the country, especially the government.
- To uphold and protect human rights in accordance with the principles of a democratic rule of law, the implementation of human rights is guaranteed, regulated and set forth in statutory regulations.
Article 28J
- Everyone is obliged to respect the human rights of others in an orderly life in society, as a nation and as a country.
- In exercising his/her rights and freedoms, every person is obliged to comply with the restrictions established by law with the sole purpose of guaranteeing recognition and respect for the rights of freedom of others and of fulfilling fair demands in accordance with considerations of moral and religious values, security and public order in a democratic society.
CHAPTER XIII
EDUCATION AND CULTURE
Article 31
- Every citizen has the rights for education.
- Every citizen is obliged to attend basic education and the government is obliged to finance it.
- The government shall endeavor and implement a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation as regulated by law.
- The Country prioritizes the Education budget of at least twenty percent of the state revenue and expenditure budget as well as from the regional income and expenditure budget to meet the needs for the management of national education.
- The government shall advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind.
Article 32
- The country shall promote Indonesia’s national culture in the midst of world civilization by guaranteeing the freedom of the people in maintaining the development of cultural values.
- The Country respects and maintains regional languages as national cultural assets.
NATIONAL ECONOMY AND SOCIAL WELFARE
Article 33
- The economy is structured as a joint effort based on the principle of kinship.
- Production branches which are important to the country and which affect the livelihood of the public shall be controlled by the state.
- The land and water and natural resources contained therein shall be controlled by the country and used for the greatest prosperity of the people.
- The national economy shall be implemented based on economic democracy with the principles of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance between progress and national economic unity.
- Further provisions regarding the implementation of this article shall be regulated in law.
Article 34
- The poor and neglected children are cared by the country.
- The country develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity.
- The country is responsible for the provision of adequate health service facilities and public service facilities.
- Further provisions regarding the implementation of this article are regulated in law.
Human Rights in Indonesia was regulated in Undang-undang No. 39 tahun 1999 concerning Human Rights which regulated as follows:
CHAPTER I
GENERAL REQUIREMENTS
article 1
In this law what is meant by:
- Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts that must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human value and dignity.
- Basic human obligations are a set of obligations which if it isn’t implemented, then the realization and the upholding of human rights won’t be possible.
- Discrimination is any limitation, harassment or exclusion that is directly or indirectly based on human differentiation on the basis of religion, ethnicity, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in reduction, deviation or elimination of recognition, implementation or the use of human rights and basic freedoms in life, both individually and collectively in the political, economic, legal, social, cultural and other aspects of life.
- Torture is any act that is done on purpose, causing great pain or suffering, both physically and spiritually, to a person in order to obtain a confession or information from someone or from a third person, by punishing him/her for an act that the person has committed or suspected to be committed by someone or a third person, or threatening or coercing someone or a third person, or for any reason based on any form of discrimination, if the pain or suffering is caused by, at the instigation of, with the consent or knowledge of anyone and or public officials.
- Child is any human being under 18 (eighteen) years old and hasn’t married, including children who are still in the womb if it is in his interest.
- Violation of human rights is every act of a person or group of people, including the country apparatus, whether intentional or unintentional or negligence which unlawfully reduces, obstructs, limits and or removes the human rights of a person or group of people guaranteed by this law and do not receive or are worried that they will not obtain a fair and correct legal settlement, based on the applicable legal mechanism.
- The National Commission on Human Rights, hereinafter referred to as Komnas HAM, is an independent institution that is at the same level as other country’s institutions which functions to carry out human rights studies, research, counseling, monitoring and mediation.
CHAPTER II
BASIC PRINCIPLES
Article 2
The Republic of Indonesia recognizes and upholds human rights and basic human freedoms as the rights which are naturally inherent to and inseparable from humans, which must be protected, respected and upheld for the sake of enhancing human dignity, welfare, blissfulness, intelligence and justice.
Article 3
- Everyone is born free with the same and equal human dignity and is endowed with a mind and conscience to live in a society, nation and state in a spirit of brotherhood.
- Everyone has the rights to the recognition, guarantee, protection and fair legal treatment and to receive legal certainty also equal treatment before the law.
- Everyone has the rights to the protection of human rights and basic human freedoms, without discrimination.
Article 4
The rights to life, the rights not to be tortured, the rights to personal freedom, thought and conscience, the rights to religion, the rights not to be enslaved, the rights to be recognized as a person and equality before the law, and the rights not to be prosecuted on the basis of law which applies retroactively are rights human rights that cannot be reduced under any circumstances and by anyone.
Article 5
- Everyone is recognized as an individual human being entitled to demand and receive equal treatment and protection in accordance with his human dignity before the law.
- Everyone has the rights to fair assistance and protection from an objective and impartial court.
- Everyone who belong to a vulnerable group of people has the rights to receive more treatment and protection with respect to their specifics.
Article 7
- Everyone has the rights to use all legal remedies at national and international forums for all human rights violations which guaranteed by Indonesian law and international law regarding human rights that have accepted by the Republic of Indonesia.
- The provisions of international law that have accepted by the Republic of Indonesia concerning human rights become national law
Article 8
The protection, promotion, enforcement and fulfillment of human rights are primarily the responsibility of the government.
Article 9
- Everyone has the rights to live, defend his/her life and improve his/her standard of living.
- Everyone has the rights to live in peace, security, peace, cheerfully, physical and spiritual prosperity.
- Everyone has the right to a good and healthy environment.
RIGHT TO JUSTICE
Article 17
Everyone, without discrimination, have the right to obtain justice by submitting applications, complaints, and lawsuits in criminal, civil and administrative cases as well as being tried through a trial process that is free and impartial, in accordance with the procedural law which guarantees an objective examination by an honest and fair judge to get a fair and correct decision.
Article 18
- Every person who is arrested, detained and prosecuted because he is suspected of having committed a criminal act has the rights to be presumed innocent until proven guilty legally in a court session and given all legal guarantees necessary for his/her defense, in accordance with the provisions of laws and regulations.
- Every person may not be prosecuted to be punished or sentenced to punishment unless based on a statutory regulation that have existed before the crime was committed.
- Every time there is a change in statutory regulations, the most favorable provisions for the suspect shall apply.
- Everyone who being examined has the rights to receive legal assistance from the time of the investigation until a court decision is legally binding.
- Everyone cannot be prosecuted for the second time in the same case for an act which has obtained a court decision that has permanent legal force.
Article 19
- No offense nor crime whatsoever is punishable by the penalty of confiscation of all property belonging to the offender.
- No person on a court decision may be sentenced to imprisonment or confinement on the basis of the inability to fulfill an obligation in the debt and credit agreement.
Article 22
- Everyone is free to embrace his/her own religion and to worship according to his/her religion and beliefs.
- The State guarantees the freedom of everyone to embrace their respective religions and to worship according to their religion and beliefs.
Article 26
- Everyone has the rights to have, obtain, change or maintain his/her citizenship status.
- Everyone is free to choose his nationality and without discrimination, has the right to enjoy the rights that come from and inherent in his citizenship and must carry out his obligations as a citizen in accordance with the provisions of laws and regulations.
SECTION SIXTH
THE RIGHT TO FEEL SECURE
Article 28
- Everyone has the rights to seek asylum to obtain political protection from other countries.
- The rights as meant in paragraph (1) do not apply to those who commit non-political crimes or acts contrary to the aims and principles of the united nations.
Article 29
- Everyone has the rights to protection of self-personal, family, honor, dignity and property.
- Everyone has the rights to recognition everywhere as a personal human before the law.
Article 30
Everyone has the rights to a sense of safe, secure and protection against the threat of fear to do or not do something.
Article 31
- The place of residence of any person may not be disturbed.
- Stepping on or entering a compound of residence or entering a house against the will of the person living in it, is only permitted in matters stipulated by law.
Article 32
Freedom and confidentiality in correspondence, including communication through electronic means, must not be disturbed, except by order of a judge or other lawful authority in accordance with the provisions of laws and regulations.
Article 33
- Everyone has the rights to be free from torture, punishment, cruelty or inhuman treatment neither degrading his/her human dignity.
- Everyone has the rights to be free from enforced disappearance and deprivation of life.
Article 34
Everyone may not be arrested, exhibited, tortured, excommunicated, exiled or dumped arbitrarily.
Article 35
Everyone who has the rights to live in a peaceful, safe and secure society and state, which respects, protects and implements human rights and basic human obligations are regulated in this law.
THE RIGHT TO WELFARE
Article 36
- Everyone has the rights to own property, individually or collectively with others for the development of him/herself, his/her family, the nation and the community in a way that does not violate the law.
- No person may be confiscated from his/her property arbitrarily and illegally.
- Property rights have a social function.
Article 41
- Every citizen has the rights to social security necessary for a decent life and for his full personal development.
- Everyone with disabilities, elderly people, pregnant women and children has the rights to receive special facilities and treatment.
Article 42
Every citizen who is elderly, physically and or mentally disabled has the rights to receive special care, education, training and assistance at the state’s expense, to ensure a decent life in accordance with his human dignity, increase self-confidence, and the ability to participate in the life of the community, nation and in the country.
WOMEN’S RIGHTS
Article 45
The rights of women in this law are human rights.
Article 47
A woman who marries a man of foreign nationality does not automatically follow her husband’s citizenship/nationality status but has the right to retain, change or regain her nationality/citizenship status.
Article 48
Women have the rights to obtain education and teaching at all types, levels and paths of education in accordance with predetermined requirements.
Article 49
- Women have the rights to choose, be elected, appointed in jobs, positions and professions in accordance with statutory requirements and regulations.
- Women have the rights to receive special protection in the implementation of their work or profession against things that can threaten their safety and or health with respect to women’s reproductive function.
- The special rights inherent in women due to their reproductive function are guaranteed and protected by law.
Article 50
An adult and / or married woman has the rights to carry out legal actions on her own, unless otherwise stipulated by her religious law.
Article 51
- A wife while in the marriage bond has the same rights and responsibilities as her husband for all matters relating to her married life, relations with her children and the right to own and manage joint assets.
- After the divorce, a woman has the same rights and responsibilities as her ex-husband for all matters relating to her children, by considering the best interests of the children.
- After the divorce, a woman has the same rights as her ex-husband over all matters relating to joint assets without reducing children’s rights, in accordance with the provisions of laws and regulations.
PART TEN
CHILDREN’S RIGHTS
Article 52
- Every child has the rights of protection by parents, family, society and the country.
- Children’s rights are human rights and for the sake of their interests, children’s rights are recognized and protected by law even from the time they are in the womb.
Article 53
- Every child since in the womb has the rights to live, to maintain life and to improve his standard of living.
- Since birth, every child is entitled to a name and citizenship status.
Article 54
Every child with physical and or mental disabilities has the rights to receive special care, education, training and assistance at the expense of the state, to ensure his life in accordance with human dignity, increase self-confidence and the ability to participate in the life of the community, nation and state.
Article 58
- Every child has the right to obtain legal protection from all forms of physical or mental violence, neglect, ill-treatment and sexual harassment while in the care of his parents or guardians, or any other party responsible for the care of the child.
- In the event that a parent, guardian or child caregiver who commits all forms of physical or mental abuse, neglect, ill-treatment, and sexual harassment including rape, and / or murder of a child which should be protected, it shall be subject to a higher penalty.
Article 60
- Every child has the rights to receive education and teaching in the framework of personal development according to his/her interests, talents and level of intelligence.
- Every child has the rights to seek, receive, and provide information according to his/her intellectual level and age for the sake of his/her own development as long as it is in accordance with the values of decency and propriety.
Article 64
Every child has the rights to get protection from economic exploitation activities and any work that endangers them, so that it can interfere with his/her education, health, physical, moral, social life, and mental spirituality.
Article 65
Every child has the rights to get protection from activities of sexual exploitation and abuse, kidnapping, child trafficking, and from various forms of abuse of narcotics, psychotropic substances and other addictive substances.
Article 66
- Every child has the rights not to be subjected to mistreatment, torture or inhuman punishment.
- The death penalty or life sentence cannot be imposed for the offender who is a child.
- Every child has the rights not to be illegally deprived of his/her freedom.
- The arrest, detention or imprisonment of children may only be carried out in accordance with the applicable law and can only be carried out as the last resort.
- Every child who is deprived of his/her freedom has the rights to receive humane treatment and with due observance of personal development needs according to his age and must be separated from adults, except in his/her interest.
- Every child who is deprived of his/her freedom has the rights to obtain legal aid or other assistance effectively at every stage of the applicable legal efforts.
- Every child who is deprived of his/her freedom has the rights to defend him/herself and to receive justice in an objective and impartial Juvenile Court in a closed session to the public.
CHAPTER IV
BASIC HUMAN OBLIGATIONS
Article 67
Everyone who is in the territory of the Republic of Indonesia is obliged to comply with statutory regulations, unwritten laws and international law regarding human rights that have been accepted by the Republic of Indonesia.
Article 68
Every citizen is obliged to participate in efforts to defend the state in accordance with the provisions of laws and regulations.
Article 69
(1) Everyone is obliged to respect the human rights of others, morals, ethics and order of life in society, nation and in the country.
(2) Every human rights person creates a basic obligation and responsibility to respect the human rights of others mutually and it is the duty of the Government to respect, protect, enforce and promote them.
Article 70
In exercising their rights and freedoms, everyone is obliged to comply with the restrictions established by law with the aim of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of moral, security and public order in a democratic society.
CHAPTER V
GOVERNMENT OBLIGATIONS AND RESPONSIBILITIES
Article 71
The government is obliged and responsible for respecting, protecting, upholding and promoting human rights as regulated in this law, other laws and regulations and international human rights law accepted by the Republic of Indonesia.
Article 72
The obligations and responsibilities of the government as referred to in Article 71, include steps for effective implementation in the fields of law, politics, economy, social, culture, national defense and security and other fields.
by Dharma Na GaraLaw and Justice
A. Law
Definition of Law
Law according to Mr. Soerojo Wignojodipoero in the book Introduction to Legal Studies states that law is:
The compilation of compelling living laws and regulations, contains an order, prohibition, or permission to do or not do something and with the intention of regulating involvement in life.
Satjipto Raharjo explained that law is a human work in the form of norms containing behavioral guidelines. Law is a reflection of the human will about how society should be nurtured and where it should be directed. Therefore, law contains first of all a record of the ideas chosen by the society in which it was created. These ideas are in the form of ideas about justice.
Sudikno Mertokusumo explained that law is a legal norm which is a provision or guideline on what should or must be done. In essence, the rule of law is the formulation of opinions or views on how someone should or must behave. As a guidance legal norm has characteristic of general and passive.
J.C.T. Simorangkir and Woerjono Sastropranoto explained that laws are coercive regulations made by authorized bodies, which determine human behavior in society, violations of these regulations result in punitive action being taken.
B. Judicature
Definition of Judicature
Judicature is the job of judges or court bodies. Judges and courts are bodies that are firmly charged with the task of examining complaints about tampering with rights (law) or examining lawsuits and these bodies issue legal decisions.
Judicature consists of fair and everything that is related to court. Court here is not defined solely as a body to judge, but as an abstract meaning, namely the matter of providing justice. Providing justice means that which is related to the duties of the judiciary bodies or judges in providing justice, namely giving the person concerned concretely to those who ask for justice, what is their right or what the law is. In other words, judicature is everything that is related to the duty of the judges in deciding cases, whether civil cases or criminal cases, to maintain or ensure compliance with material law. Judicature laws are more likely to settle cases through courts as their institutions, while judicature justice take more steps outside the court, such as by way of peace through arbitration institutions.
C. Law and Justice
Law is an institution to create justice in society. Legal experts differ widely in formulating justice.
Justice can indeed be formulated in a simple way as a benchmark used by experts in defining justice. The formulas include:
- Justice from Hans Kelsen’s point of view
According to him, justice is a certain social order in an effort to seek truth that develops fertile. Justice includes justice for freedom, justice for peace, justice for democracy, justice for tolerance.
- Herber Spenser
Everyone is free to decide what to do as long as he does not violate the same freedoms of others.
- Justinian
Justice is a virtue that produces results, that everyone gets what is their rights.
- Ulpian
Justice is a will that is permanent and perpetual to give everyone what is belong/deserve to each of them (Justitia est constans et perpetua voluntas ius ssum curique tribuendi).
- Aristotle
Justice is a political policy whose rules form the basis of state regulations and these rules are a measure of what is right. People must control themselves from Pleonesia, that is to gain advantage for themselves by taking away what belongs to others, or rejecting what should be given to others.
D. Law as a protector of Rights
The law protects a person’s interests by allocating a power to him to act in the framework of those interests. This allocation of power is carried out in a measured manner, in the sense that its breadth and depth are determined. Such power is known as rights.
Rights not only contain elements of protection and interests but rights also contain elements of will. If a person owns a plot of land, then the law gives him rights in the sense that his interest in the land is protected. He has free to will with the land that he owns.
According to Fitzgerald, the characteristics of rights inherent in law are:
- The right is attached to someone who is called the owner or subject of the right. He is also known as the person who has the title for the goods which are the target of rights.
- The right is assigned to another person, namely becoming the holder of the obligation. Between rights and obligations there is a correlative relationship.
- This right that is in someone obliges the other party to do (commission) or not to do (omission) an act. This right can be called the content of rights.
- Commission or omission concerns something that can be called the object of rights.
- Every right according to law has a title, which is a certain event on which why the right is attached to the owner.
The term right is also used in the sense of immunity from the jurisdiction of others. Just as power is the ability to change legal relations, this immunity is liberation from the existence of a legal relationship that can be changed by others. Immunity has the same position in relation to power as between freedom and rights in a narrow sense: immunity is liberation from the power of others, while freedom is liberation from the rights of others.
Rights can be grouped as follows:
- Perfect rights and imperfect rights
Perfect rights are those that can be exercised through law as if necessarily through coercion by law. Imperfect rights are those that are recognized by law, but are not always exercised by the courts, such as rights that are limited by expired institutions.
- Primary and additional rights
Primary rights are those that are extended by other rights. Additional rights are those that complement the main rights, such as land lease agreements that give additional rights to the main rights of the land owner.
- Public rights and civil rights
Public rights are those that exist in general society, namely the state. Civil rights are those that exist in individuals, such as the right of a person to enjoy the goods they own.
- Positive and negative rights
Positive rights demand positive actions from the party where the correlative obligation lies, such as the right to receive personal benefits.
- Rights to own and Personal Rights
Rights to own relate to items owned by a person that are normally transferable. Personal rights relate to a person’s position which can never be transferred.
E. Obligations
Between rights and obligations have a very close relationship. Obligations are absolutely necessary for someone who wants his rights to be fulfilled. A person can claim his rights if he has completed his obligations.
Curzon classifies obligations into several groups, namely:
- Absolute and relative obligations
Austin stated that an absolute obligation is one that does not have rights pair, such as an obligation directed to oneself, which is demanded by society in general; which is only addressed to the power (sovereign) in charge of it. Relative power is that which involves rights on the other hand.
- Public and civil obligations
Public obligations are those that correlate with public rights, such as the obligation to comply with criminal law. Civil obligations are correlative to civil rights, such as obligations arising from an agreement.
- Positive and negative obligations
Positive obligation requires positive actions such as the seller’s obligation to deliver goods to the buyer. A negative obligation is one that requires a party not to do something, such as a person’s obligation not to do something that disturbs a neighbor’s property.
- Universal, general and special obligations
Universal obligations are addressed to all citizens, such as those arising from law. General obligations are addressed to a certain class of people, such as foreigners, parents (father, mother). Special obligations are those that arise from certain areas of law, such as obligations in contract law.
- Primary and sanctioning obligations
Primary obligations are those that do not arise from acts that are against the law, such as the obligation of a person not to defame others, which in this case does not arise from violations of other previous obligations. Obligations that are sanctioned are those that arise solely from acts that are against the law, such as the obligation of the defendant to pay the lawsuit of another party who has won the case.
F. Responsibility in view of the Law
Responsibility is the result of an act. When someone does an action, that action will have an impact on other people, the impact or consequence must be borne by the person who did the action. Responsibility is sued because there is an error that can harm the rights and interests of others.
According to Roscoe Pound, there are three types of responsibilities, namely:
- Liability for deliberate loss.
- Liability for loss due to negligence and accidental.
- Liability in certain cases for damages incurred not due to negligence and accidentally.
Accountability is a case of offense, if the injured party does not file a case, then there is no claim to be responsible. Submission of these cases can be pursued by court and can also be pursued by reconciliation with compensation.
G. Justice
- Definition of Justice
Justice comes from the word just, according to the Indonesian Dictionary, just is not arbitrary, impartial[1]. Fair mainly implies that decisions and actions are based on objective norms, so they are not subjective, moreover arbitrary. Justice is basically a relative concept, everyone is not equal, fair according to one is not necessarily fair to others, when someone asserts that he is doing justice, it must be relevant to public order where a scale of justice is recognized. The scale of justice varies greatly from place to place, each scale is defined and fully determined by the community in accordance with the public order of that society. For most people justice is a general principle, that individuals should receive what they deserve[2].
Justice is a major virtue in social institutions as well as truth in systems of thought. A theory, however elegant and economic, must be rejected or revised if it is not true, so laws and institutions, no matter how efficient and neat it is, must be reformed or abolished if they are unfair. Everyone has an honor based on justice that the whole of society cannot even cancel it. On this basis justice is justified by the greater that others get. Justice does not allow the sacrifices imposed on the few to be aggravated by the Most of the benefits enjoyed by many. Therefore, in a just society the freedom of the citizen is considered established, the rights guaranteed by justice are not subject to political bargaining or social interest calculations[3].
In Indonesia, justice is described in Pancasila as the basis of the country, namely social justice for all Indonesian people. The values contained in the principle of social justice for all Indonesian people are based on and inspired by the principle of beliefs in God, Just and Civilized Humanity, Indonesian Unity, and Democracy led by philosophy wisdom in Deliberation / Representation. The fifth principle contains values which are the goals in life together. So, the fifth principle contains the values of justice that must be manifested in life together (social life). As for justice is based on and imbued with the essence of human justice, namely justice in the relationship between man and himself, human being with other humans, man with society, nation and state, as well as the relationship between man and his God[4].
A sense of justice is essentially the fruit of a human’s spiritual work. And, a human being is primarily individual or subjective. However, in social life for years, centuries, ages, each member of society has naturally, without thought, felt that the passions of each in the end must be reduced to give the other members of society a chance to feel pleasure also in living together in this world.
Thus, the sense of justice of each member of society, even though it is attached to each individual, generally already contains an element of mutual respect for each other’s interests so that it is appropriate that among the various feelings of justice from various elements of society there is a similarity in rhythm which allows for equality of existence as well as the fruit of that sense of justice[5].
If justice is interpreted as social happiness, then social happiness will be achieved if the needs of the social individual are met. Fair regulations are rules that can ensure the fulfillment of these needs. But it is inevitable the fact that one’s desire for happiness can conflict with the wishes of others. So, justice is the fulfillment of individual desires in a certain level. The greatest justice is the fulfillment of the wishes of as many people as possible[6]. But if justice is interpreted as legality. It is fair if a rule is applied to one case but not the same in another. Justice in the sense of legality is a quality that is not related to the content of positive rules, but with its implementation. According to legality, a statement that an individual’s action is fair or unfair means legal or illegal, that is, the action is in accordance with or not with valid legal norms to assess as part of a positive legal system. Only in this sense of legality can justice enter into the science of law[7].
Justice is a fair behavior, namely placing everything in its place or in accordance with its portion, fairness does not have to apply equally to everyone but the characteristic is subjective. Everything that has become the provisions of Allah must be fair, therefore Allah commands mankind to behave fairly, because fair is closer to piety. To receive justice at first it will feel heavy and unable to accept it, therefore to accept justice the key is sincerity, while to accept sincerity is also very hard at first, but if it is felt and submitted to Allah the God of the Universe, you will certainly be able to accept it, so that to carry out sincerity one must be patient and trust in God who orders everything[8].
So that not happen justice like the elephant story studied by blind researchers. Each researcher feels different parts of the legs, ears, tusks, so that each of them describes this in different ways as well as fat and strong, thin and pliable, smooth and hard. While the elephant itself the justice can never be fully recognized by any individual description[9].
So, the criteria of justice, like the criteria of truth, does not depend on the frequency with which the justification is made. Because humans are divided into many different nations, classes, religions, professions and so on, there are also many different ideas of justice. Too many to call one of them justice[10]. Likewise, the research of the blind people on the elephant mentioned above, each researcher feels a different part.
Because justice and truth as compass, thus the legal process runs objectively and rationally, rationally means that there are clear, logical and acceptable standards for anyone’s common sense. Objective, means that case resolution must follow normative procedures related to the problem being handled, not following the subjective will of the law enforcement party. That’s the criteria that must be applied to anyone indiscriminately. So that everyone benefits from the existence of laws that are truly objective, fair, rational. The wicked must be punished, the weak are not treated arbitrarily according to the orders of the strong. And, the strong people, there is no compromise, must be prosecuted if found to have broken the law. The law places everyone equal[11].
- Justice according to the Philosopher
a. Plato
In the context of Plato’s doctrine of ideas, the idea of justice can be shown in relation to the idea of the state (polis), because the contemplation of the idea of the state (polis) produces an image in which laws and regulations hardly play no role at all[12]. According to Plato, justice is the emancipation and participation of citizens (polis) in the idea of goodness in the state and it is a philosophical consideration for a law.
b. Aristotle
Aristotle was a Greek philosopher who spoke quite clearly about justice. From his work Ethics Nichomachea can be seen his thoughts about justice. For Aristotle, virtue, namely obedience to the law (policy law at that time, written or unwritten) was justice. Aristotle distinguishes justice into two, namely:
- Distributive justice is justice that applies in public law, which focuses on the distribution, honorarium for wealth and other goods obtained by members of the public.
- Corrective justice, is justice related to correcting something wrong, providing compensation for the injured party or an appropriate punishment for the perpetrator of the crime. So compensation and sanctions are a corrective justice according to Aristotle[13].
More fully regarding justice according to Aristotle was put forward by Theo Huijbers, including:
- Justice in the division of positions and public assets. This is where geometric similarity applies. For example, if a regent is twice as important than a subdistrict head, then the regent must receive twice as much honor as a subdistrict head. To equal importance is given equal, and unequal importance is given unequal.
- Justice in buying and selling. According to him, the price of goods depends on the position of the party. This is now impossible to accept.
- Justice as arithmetic equality in the private or public sphere. If a person steals, then he must be punished, regardless of the position of the person concerned. Now, if an official is legally proven to have committed corruption then that official must be punished, regardless of whether he is an official.
- Justice in the field of legal interpretation. Because the law is general in nature, it does not cover all concrete issues, the judge must interpret it as if he himself were involved in the concrete event. According to Aristotle, the judge must have epikeia, which is “a sense of what is appropriate[14].
c. Friedrich Nietzsche
In his work entitled Menschlisches Allzumenschliches, he says that originally justice is the same power or force. Or justice is reward or respond and exchange on condition that the position of power or authority is roughly the same. So, for example, that originally revenge lies within the sphere of justice. It is an exchange[15].
d. Gustav Radbruch
Justice can be distinguished in several meanings:
- Justice as a prominent or virtue (Gerechtigkeit als Tugend), namely justice as a personal trait or quality (for example for a judge). Here is subjective justice, and justice as the nature or quality of human relations (for example, a fair price). Subjective justice is a stand or attitude, views and beliefs directed towards the realization of objective justice as primary justice. Meanwhile subjective justice is secondary. What is objective justice is less clear. Perhaps in Radbruch’s view, objective justice is justice in human relations.
- Justice according to the standard of positive law and justice according to the ideals of law (rechtsidee), or positive law and the ideals of law is the source of justice.
- The essence of justice is equality (Gleichheit). Here Radbruch follows Aristotle’s opinion of justice, namely commutative justice (for example between achievement and counter-achievement) and distributive justice (in the private and public spheres. Private: salaries are paid according to work performance, public: positions based on qualifications)[16].
e. John Stuart Mill and Bentham
Explaining justice is the greatest benefit or happiness to many people. So a small number of people or individuals can become victims for the sake of many people and that is still called “justice” as well[17].
f. Jacques Derrida
Derrida explained that justice is an experience of the impossible, an experience as “crossing” in a sense, an experience is something that opens a path, makes access and breaks down. Justice is an experience of aporia, which is a limit of things that can be experienced, for example, people are trapped in a dead end, or in other words, aporia of no access, dead ends means that someone cannot fully experience justice[18].
g. Notohamidjojo Notohamidjojo distinguishes justice into three, namely:
- Vindicative justice, is justice that imposes a sentence in accordance with the crime committed.
- Creative justice is justice that provides equal opportunities and freedom for everyone to create positively.
- Protective justice is justice that provides equal protection for everyone in society[19].
h. Widiartana Widiartana explained that in criminal law there are usually two kinds of justice, namely as follows:
- Retributive justice is justice that focuses on the conviction of the perpetrator of a crime as retribution or reward for the crime he has committed.
- Restorative justice is justice that focuses more on or focuses on repairing or restoring victims who have suffered as a result of the perpetrator’s crime. In other words, this justice is shown more to the victim than to the perpetrator. This is also a form of responsibility for the perpetrators without neglecting the interests of rehabilitation for the perpetrators. According to Widiartana, restorative justice in the criminal field is more in line with the principle of kinship in Pancasila (Pancasila is the basis of the state and basis of the philosophy of the Republic of Indonesia). It is fair that the perpetrator of the crime is convicted. For example, perpetrators of crimes in domestic crime, but it is also fairer if the victims are given recovery[20].
From the various definitions above, it is very clear that there are various understandings of the meaning of justice. There are those who associate justice with state political regulations, so that the measure of what is a right or not is always based on a measure determined by the state. There are those who see justice in the form of a willingness that is permanent and perpetual, to provide what is right for everyone. There are also those who see justice as a justification for the implementation of law, as opposed to arbitrariness.
Thus, there are also expressions about “justice” that place justice as something that must be sanctified, and exist not only in the courtroom, but everywhere, and must be cleaned of the filth of scandal and corruption. Among the above expressions, there are those who assert that there is no such thing as perfect “justice”, there is only the attainment of justice in a certain level[21].
[1] Eko Hadi Wiyono, Kamus Bahasa Indonesia Lengkap, Jakarta, Akar Media, 2007, p. 10.
[2] M. Agus Santoso, Hukum, Moral, dan Keadilan, Jakarta, Kencana Prenadamedia Group, 2012, p. 85.
[3] John Rawls, A Theory of justice Teori Keadilan Dasar-dasar Filsafat Politik untuk Mewujudkan Kesejahteraan Sosial dalam Negara, Yogyakarta, Pustaka Pelajar, 2011, p. 3-4.
[4] Kaelan, Pendidikan Kewarganegaraan untuk Perguruan Tinggi, Yogyakarta, Paradigma, 2007, p. 36.
[5] Wirjono Prodjodikoro, Asas-asas Hukum Pidana di Indonesia, Bandung, Refika Aditama, 2008, p. 18-19.
[6] Hans Kelsen dalam Jimly Asshiddiqie dan M. Ali Safa’at, Teori Hans Kelsen tentang Hukum, Jakarta, Konstitusi Press, 2012, p. 17.
[7] Ibid., p. 21.
[8] M. Agus Santoso, Op. cit., p. 87-88.
[9] Karen Leback, Teori-teori Keadilan Six Theories of Justice, Suplemen: Konsep Keadilan dalam Kristen, oleh Hans Kelsen, Bandung, Nusa Media, 1986, p. 1.
[10] Jimly Asshiddiqie dan M Ali Safa’at, Op. cit, p. 18.
[11] Dossy Iskandar Prasetyo dan Bernard L. Tanya, Hukum Etika dan Kekuasaan Yogyakarta, Genta Publishing, 2011, p. 111-112.
[12] Carl Joachim Friedrich, Filsafat Hukum Perspektif Historis, Bandung, Nusa Media, 2010, p. 19.
[13] Aristoteles dalam Theo Huijbers, Filsafat Hukum dalam Lintas Sejarah, Yogyakarta, Kanisius, 1984, p. 29.
[14] Ibid., p. 30.
[15] Friedrich Nietzsche, dalam Hyronimus Rhiti, Filsafat Hukum (dari Klasik sampai Postmodernisme), Edisi lengkap, Yogyakarta, Universitas Atma Jaya, 2011, p. 244.
[16] Ibid., p. 245.
[17] Ibid., p. 246.
[18] Derrida dalam Anthon F. Susanto, Ilmu Hukum-Non Sistematik, Fondasi Filsafat Pengembangan Ilmu Hukum Indonesia, Yogyakarta, Genta Publishing, 2010, p. 94
[19] Notohamidjojo, Soal-soal Pokok Filsafat Hukum, Jakarta, BPK Gunung Mulia, 1975, p. 53-54.
[20] G. Widiartana, Keadilan Restoratif pada Kebijakan Penanggulangan Kekerasan dalam Rumah Tangga dengan Hukum Pidana, Makalah Diskusi, Yogyakarta, Fakultas hukum UAJY, 2010, p. 5.
[21] Achmad Ali, Menguak Teori Hukum (Legal Theory) dan Teori Peradilan (Judicial Prudence) Termasuk Interprestasi Undang-undang (Legisprudence), vol 1 Pemahaman Awal, Jakarta, Prenadamedia Group, 2012, p. 221-222.
by Dharma Na GaraSummary of Articles of Laws in Indonesia Part 1.
Summary of Articles of Laws in Indonesia Part 1.
Undang-undang Dasar Negara Republik Indonesia Tahun 1945 (The Constitution of the Republic Indonesia year 1945)
Article 1
- The country of Indonesia is a Unitary Country in the form of a Republic;
- Sovereignty rests in the hands of the people and is exercised according to the constitution;
- The Country of Indonesia is a country of law.
Article 4
- The President of the Republic of Indonesia holds governmental powers according to the Constitution.
- In performing his/her duties the President is assisted by one Vice President.
Article 24
- Judicial power is an independent power to administer justice in order to uphold law and justice.
- Judicial power is exercised by a Supreme Court and judicial bodies under it in the general court, religious courts, military courts, state administrative courts and by a Constitutional Court.
- Other bodies whose functions are related to judicial powers are regulated in a law.
Article 26
- Those who become citizens are the native Indonesian people and from other nations who have been legalized by law as citizens.
- Residents are Indonesian citizens and foreigners who reside in Indonesia.
- Matters concerning citizens and residents shall be regulated by law.
Article 27
- All citizens shall have an equal position before the law and government and are obliged to uphold the law and government without exception.
- Every citizen has the right to work and a living that is decent for humanity.
- Every citizen has the right and obligation to participate in efforts to defend the state.
Article 28
Freedom of association and assembly, expressing thoughts orally and in writing and so on is stipulated by law.
Chapter XA **)
Human rights
Article 28 A
Everyone has the rights to live and has the rights to defend his/her live and life.
Article 28 B
- Everyone has the rights to form a family and continue their offspring through a legal marriage.
- Every child has the rights to live, grow and develop and has the protection rights from violence and discrimination.
Article 28 C
- Everyone who has the rights to develop him/herself through the fulfillment of the necessities of life, has the right to receive education and to benefit from science and technology, art and culture, in order to improve the quality of his/her life and for the welfare of mankind.
- Everyone has the rights to promote him/herself in the collective struggle for his rights to develop his community, nation and the country.
Article 28 D
- Everyone has the rights to recognition of guarantees, protection and legal certainty that is just and equal treatment before the law.
- Everyone has the rights to work and to receive fair and proper compensation and treatment in an employment relationship.
- Every citizen has the rights to equal opportunities in government.
- Everyone has the rights to citizenship status.
Article 28E
- Everyone is free to embrace religion and worship according to his religion, to choose education and teaching, to choose work, to choose citizenship, to choose a place to live in the territory of the country and leave it, and to have the right to return.
- Everyone has the rights to freedom of belief, to express thoughts and attitudes, according to their conscience.
- Everyone has the rights to freedom of association, assembly and expression.
Article 28F
Everyone has the right to communicate and obtain information to develop their personal and social environment, and the rights to seek, obtain, possess, store, process and convey information using all available channels.
Article 28G
- Everyone has the rights of protection of his / her personal, family, honor, dignity and property under his/her control, as well as to the feeling of security and protection from the threat of fear to do or not do something which constitutes human rights.
- Everyone has the rights to be free from torture and treatment that degrading human dignity and has the right to obtain political asylum from other country.
Article 28H
- Everyone has the rights to live in physical and spiritual prosperity, to have a place to live and to have a good and healthy living environment and the rights to obtain health services.
- Everyone shall receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice.
- Everyone has the rights to social security which enables him/her to complete development as a dignified human.
- Everyone has the rights to own private property and these rights cannot be taken over arbitrarily by anyone.
Article 28I
- The rights to life, the rights not to be tortured, the rights to freedom of thought and conscience, the rights to have a religion, the rights not to be enslaved, the rights to be recognized as a person before the law and the rights not to be prosecuted on the basis of retroactive law are human rights which cannot be reduced under any circumstances.
- Everyone has the right to be free from discriminatory treatment on any basis and is entitled to protection against such discriminatory treatment.
- The cultural identity and rights of traditional communities are respected in accordance with the times and civilizations.
- The protection, promotion, enforcement and fulfillment of human rights are the responsibility of the country, especially the government.
- To uphold and protect human rights in accordance with the principles of a democratic rule of law, the implementation of human rights is guaranteed, regulated and set forth in statutory regulations.
Article 28J
- Everyone is obliged to respect the human rights of others in an orderly life in society, as a nation and as a country.
- In exercising his/her rights and freedoms, every person is obliged to comply with the restrictions established by law with the sole purpose of guaranteeing recognition and respect for the rights of freedom of others and of fulfilling fair demands in accordance with considerations of moral and religious values, security and public order in a democratic society.
Article 30
- Every citizen has the right and duty to participate in the defense and security efforts for the country.
- The country’s defense and security efforts are carried out through the defense and security system of all the people by the Indonesian National Soldier and the Indonesian Police, as the main force, and the people as the supporting force.
- The Indonesian National Soldier consists of the Army, Navy and Air Force as country’s instruments in charge of defending, protecting and maintaining the integrity and sovereignty of the country.
- The Police of the Republic of Indonesia is an instrument of the country that maintains public order and security, has the duty to protect and serve the society and enforce the law.
CHAPTER XIII
EDUCATION AND CULTURE
Article 31
- Every citizen has the rights for education.
- Every citizen is obliged to attend basic education and the government is obliged to finance it.
- The government shall endeavor and implement a national education system, which increases faith and piety as well as noble morals in the framework of the intellectual life of the nation as regulated by law.
- The Country prioritizes the Education budget of at least twenty percent of the state revenue and expenditure budget as well as from the regional income and expenditure budget to meet the needs for the management of national education.
- The government shall advance science and technology by upholding religious values and national unity for the advancement of civilization and the welfare of mankind.
Article 32
- The country shall promote Indonesia’s national culture in the midst of world civilization by guaranteeing the freedom of the people in maintaining the development of cultural values.
- The Country respects and maintains regional languages as national cultural assets.
NATIONAL ECONOMY AND SOCIAL WELFARE
Article 33
- The economy is structured as a joint effort based on the principle of kinship.
- Production branches which are important to the country and which affect the livelihood of the public shall be controlled by the state.
- The land and water and natural resources contained therein shall be controlled by the country and used for the greatest prosperity of the people.
- The national economy shall be implemented based on economic democracy with the principles of togetherness, efficiency with justice, sustainability, environmental insight, independence, and by maintaining a balance between progress and national economic unity.
- Further provisions regarding the implementation of this article shall be regulated in law.
Article 34
- The poor and neglected children are cared by the country.
- The country develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity.
- The country is responsible for the provision of adequate health service facilities and public service facilities.
- Further provisions regarding the implementation of this article are regulated in law.
Human Rights in Indonesia has regulated in Undang-undang No. 39 tahun 1999 tentang Hak Asasi Manusia (Law Number 39 Year 1999 regarding Human Rights) which regulated as follows:
CHAPTER I
GENERAL DEFINITION
article 1
In this law what is meant by:
- Human Rights are a set of rights inherent in the nature and existence of humans as creatures of God Almighty and are His gifts that must be respected, upheld and protected by the state, law, government and everyone for the sake of honor and protection of human value and dignity.
- Basic human obligations are a set of obligations which if it isn’t implemented, then the realization and the upholding of human rights won’t be possible.
- Discrimination is any limitation, harassment or exclusion that is directly or indirectly based on human differentiation on the basis of religion, ethnicity, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which results in reduction, deviation or elimination of recognition, implementation or the use of human rights and basic freedoms in life, both individually and collectively in the political, economic, legal, social, cultural and other aspects of life.
- Torture is any act that is done on purpose, causing great pain or suffering, both physically and spiritually, to a person in order to obtain a confession or information from someone or from a third person, by punishing him/her for an act that the person has committed or suspected to be committed by someone or a third person, or threatening or coercing someone or a third person, or for any reason based on any form of discrimination, if the pain or suffering is caused by, at the instigation of, with the consent or knowledge of anyone and or public officials.
- Child is any human being under 18 (eighteen) years old and hasn’t married, including children who are still in the womb if it is in his/her interest.
- Violation of human rights is every act of a person or group of people, including the country apparatus, whether intentional or unintentional or negligence which unlawfully reduces, obstructs, limits and or removes the human rights of a person or group of people guaranteed by this law and do not receive or are worried that they will not obtain a fair and correct legal settlement, based on the applicable legal mechanism.
- The National Commission on Human Rights, hereinafter referred to as Komnas HAM, is an independent institution that is at the same level as other country’s institutions which functions to carry out human rights studies, research, counseling, monitoring and mediation.
CHAPTER II
BASIC PRINCIPLES
Article 2
The Republic of Indonesia recognizes and upholds human rights and basic human freedoms as the rights which are naturally inherent to and inseparable from humans, which must be protected, respected and upheld for the sake of enhancing human dignity, welfare, blissfulness, intelligence and justice.
Article 3
- Everyone is born free with the same and equal human dignity and is endowed with a mind and conscience to live in a society, nation and state in a spirit of brotherhood.
- Everyone has the rights to the recognition, guarantee, protection and fair legal treatment and to receive legal certainty also equal treatment before the law.
- Everyone has the rights to the protection of human rights and basic human freedoms, without discrimination.
Article 4
The rights to life, the rights not to be tortured, the rights to personal freedom, thought and conscience, the rights to religion, the rights not to be enslaved, the rights to be recognized as a person and equality before the law, and the rights not to be prosecuted on the basis of law which applies retroactively are rights human rights that cannot be reduced under any circumstances and by anyone.
Article 5
- Everyone is recognized as an individual human being entitled to demand and receive equal treatment and protection in accordance with his human dignity before the law.
- Everyone has the rights to fair assistance and protection from an objective and impartial court.
- Everyone who belong to a vulnerable group of people has the rights to receive more treatment and protection with respect to their specifics.
Article 7
- Everyone has the rights to use all legal remedies at national and international forums for all human rights violations which guaranteed by Indonesian law and international law regarding human rights that have accepted by the Republic of Indonesia.
- The provisions of international law that have accepted by the Republic of Indonesia concerning human rights become national law.
Article 8
The protection, promotion, enforcement and fulfillment of human rights are primarily the responsibility of the government.
Article 9
- Everyone has the rights to live, defend his/her life and improve his/her standard of living.
- Everyone has the rights to live in peace, security, peace, cheerfully, physical and spiritual prosperity.
- Everyone has the right to a good and healthy environment.
RIGHT TO JUSTICE
Article 17
Everyone, without discrimination, have the right to obtain justice by submitting applications, complaints, and lawsuits in criminal, civil and administrative cases as well as being tried through a trial process that is free and impartial, in accordance with the procedural law which guarantees an objective examination by an honest and fair judge to get a fair and correct decision.
Article 18
- Every person who is arrested, detained and prosecuted because he is suspected of having committed a criminal act has the rights to be presumed innocent until proven guilty legally in a court session and given all legal guarantees necessary for his/her defense, in accordance with the provisions of laws and regulations.
- Every person may not be prosecuted to be punished or sentenced to punishment unless based on a statutory regulation that have existed before the crime was committed.
- Every time there is a change in statutory regulations, the most favorable provisions for the suspect shall apply.
- Everyone who being examined has the rights to receive legal assistance from the time of the investigation until a court decision is legally binding.
- Everyone cannot be prosecuted for the second time in the same case for an act which has obtained a court decision that has permanent legal force.
Article 19
- No offense nor crime whatsoever is punishable by the penalty of confiscation of all property belonging to the offender.
- No person on a court decision may be sentenced to imprisonment or confinement on the basis of the inability to fulfill an obligation in the debt and credit agreement.
Article 22
- Everyone is free to embrace his/her own religion and to worship according to his/her religion and beliefs.
- The State guarantees the freedom of everyone to embrace their respective religions and to worship according to their religion and beliefs.
Article 26
- Everyone has the rights to have, obtain, change or maintain his/her citizenship status.
- Everyone is free to choose his nationality and without discrimination, has the right to enjoy the rights that come from and inherent in his citizenship and must carry out his obligations as a citizen in accordance with the provisions of laws and regulations.
SECTION SIXTH
THE RIGHT TO FEEL SECURE
Article 28
- Everyone has the rights to seek asylum to obtain political protection from other countries.
- The rights as meant in paragraph (1) do not apply to those who commit non-political crimes or acts contrary to the aims and principles of the united nations.
Article 29
- Everyone has the rights to protection of self-personal, family, honor, dignity and property.
- Everyone has the rights to recognition everywhere as a personal human before the law.
Article 30
Everyone has the rights to a sense of safe, secure and protection against the threat of fear to do or not do something.
Article 31
- The place of residence of any person may not be disturbed.
- Stepping on or entering a compound of residence or entering a house against the will of the person living in it, is only permitted in matters stipulated by law.
Article 32
Freedom and confidentiality in correspondence, including communication through electronic means, must not be disturbed, except by order of a judge or other lawful authority in accordance with the provisions of laws and regulations.
Article 33
- Everyone has the rights to be free from torture, punishment, cruelty or inhuman treatment neither degrading his/her human dignity.
- Everyone has the rights to be free from enforced disappearance and deprivation of life.
Article 34
Everyone may not be arrested, exhibited, tortured, excommunicated, exiled or dumped arbitrarily.
Article 35
Everyone who has the rights to live in a peaceful, safe and secure society and state, which respects, protects and implements human rights and basic human obligations are regulated in this law.
THE RIGHT TO WELFARE
Article 36
- Everyone has the rights to own property, individually or collectively with others for the development of him/herself, his/her family, the nation and the community in a way that does not violate the law.
- No person may be confiscated from his/her property arbitrarily and illegally.
- Property rights have a social function.
Article 41
- Every citizen has the rights to social security necessary for a decent life and for his full personal development.
- Everyone with disabilities, elderly people, pregnant women and children has the rights to receive special facilities and treatment.
Article 42
Every citizen who is elderly, physically and or mentally disabled has the rights to receive special care, education, training and assistance at the state’s expense, to ensure a decent life in accordance with his human dignity, increase self-confidence, and the ability to participate in the life of the community, nation and in the country.
WOMEN’S RIGHTS
Article 45
The rights of women in this law are human rights.
Article 47
A woman who marries a man of foreign nationality does not automatically follow her husband’s citizenship/nationality status but has the right to retain, change or regain her nationality/citizenship status.
Article 48
Women have the rights to obtain education and teaching at all types, levels and paths of education in accordance with predetermined requirements.
Article 49
- Women have the rights to choose, be elected, appointed in jobs, positions and professions in accordance with statutory requirements and regulations.
- Women have the rights to receive special protection in the implementation of their work or profession against things that can threaten their safety and or health with respect to women’s reproductive function.
- The special rights inherent in women due to their reproductive function are guaranteed and protected by law.
Article 50
An adult and / or married woman has the rights to carry out legal actions on her own, unless otherwise stipulated by her religious law.
Article 51
- A wife while in the marriage bond has the same rights and responsibilities as her husband for all matters relating to her married life, relations with her children and the right to own and manage joint assets.
- After the divorce, a woman has the same rights and responsibilities as her ex-husband for all matters relating to her children, by considering the best interests of the children.
- After the divorce, a woman has the same rights as her ex-husband over all matters relating to joint assets without reducing children’s rights, in accordance with the provisions of laws and regulations.
PART TEN
CHILDREN’S RIGHTS
Article 52
- Every child has the rights of protection by parents, family, society and the country.
- Children’s rights are human rights and for the sake of their interests, children’s rights are recognized and protected by law even from the time they are in the womb.
Article 53
- Every child since in the womb has the rights to live, to maintain life and to improve his standard of living.
- Since birth, every child is entitled to a name and citizenship status.
Article 54
Every child with physical and or mental disabilities has the rights to receive special care, education, training and assistance at the expense of the state, to ensure his life in accordance with human dignity, increase self-confidence and the ability to participate in the life of the community, nation and state.
Article 58
- Every child has the right to obtain legal protection from all forms of physical or mental violence, neglect, ill-treatment and sexual harassment while in the care of his parents or guardians, or any other party responsible for the care of the child.
- In the event that a parent, guardian or child caretaker who commits all forms of physical or mental abuse, neglect, ill-treatment, and sexual harassment including rape, and / or murder of a child which should be protected, it shall be subject to a higher penalty.
Article 60
- Every child has the rights to receive education and teaching in the framework of personal development according to his/her interests, talents and level of intelligence.
- Every child has the rights to seek, receive, and provide information according to his/her intellectual level and age for the sake of his/her own development as long as it is in accordance with the values of decency and propriety.
Article 64
Every child has the rights to get protection from economic exploitation activities and any work that endangers them, so that it can interfere with his/her education, health, physical, moral, social life, and mental spirituality.
Article 65
Every child has the rights to get protection from activities of sexual exploitation and abuse, kidnapping, child trafficking, and from various forms of abuse of narcotics, psychotropic substances and other addictive substances.
Article 66
- Every child has the rights not to be subjected to mistreatment, torture or inhuman punishment.
- The death penalty or life sentence cannot be imposed for the offender who is a child.
- Every child has the rights not to be illegally deprived of his/her freedom.
- The arrest, detention or imprisonment of children may only be carried out in accordance with the applicable law and can only be carried out as the last resort.
- Every child who is deprived of his/her freedom has the rights to receive humane treatment and with due observance of personal development needs according to his age and must be separated from adults, except in his/her interest.
- Every child who is deprived of his/her freedom has the rights to obtain legal aid or other assistance effectively at every stage of the applicable legal efforts.
- Every child who is deprived of his/her freedom has the rights to defend him/herself and to receive justice in an objective and impartial Juvenile Court in a closed session to the public.
CHAPTER IV
BASIC HUMAN OBLIGATIONS
Article 67
Everyone who is in the territory of the Republic of Indonesia is obliged to comply with statutory regulations, unwritten laws and international law regarding human rights that have been accepted by the Republic of Indonesia.
Article 68
Every citizen is obliged to participate in efforts to defend the state in accordance with the provisions of laws and regulations.
Article 69
(1) Everyone is obliged to respect the human rights of others, morals, ethics and order of life in society, nation and in the country.
(2) Every human rights person creates a basic obligation and responsibility to respect the human rights of others mutually and it is the duty of the Government to respect, protect, enforce and promote them.
Article 70
In exercising their rights and freedoms, everyone is obliged to comply with the restrictions established by law with the aim of guaranteeing recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with considerations of moral, security and public order in a democratic society.
CHAPTER V
GOVERNMENT OBLIGATIONS AND RESPONSIBILITIES
Article 71
The government is obliged and responsible for respecting, protecting, upholding and promoting human rights as regulated in this law, other laws and regulations and international human rights law accepted by the Republic of Indonesia.
Article 72
The obligations and responsibilities of the government as referred to in Article 71, include steps for effective implementation in the fields of law, politics, economy, social, culture, national defense and security and other fields.
