Assembly permits: A question of rights<\/p>\n
By Muladi<\/p>\n
SEMARANG (JP): Freedom to assemble and freedom to speak have
\nbeen hot topics of discussion lately.<\/p>\n
A review of the permits that regulate these rights, currently
\nbeing carried out by the government, calls for utmost caution
\nbecause their implementation will be supported by the infamous
\ncriminal code.<\/p>\n
These permits, apart from restricting and limiting human
\nrights, fall under the jurisdiction of administrative law.<\/p>\n
Whereas the criminal code has its own penalties, permits work
\non an operational level.<\/p>\n
For example, a police permit is required by those who want to
\nhold a party or public gathering as stipulated in Article 510 of
\nthe criminal code.<\/p>\n
A separate law, the outdated, though still enforced, Law
\nNo.5\/PNPS\/1963, defines all meetings, gatherings and
\ndemonstrations as "political activities". Under this law, a
\nnotification to the police and to the now defunct National Front
\nagency are required to carry out these activities.<\/p>\n
The matter of gathering and speaking permits must be
\nunderstood thoroughly and should not be treated in a trivial and
\nfragmented way. Human rights are inalienable rights belonging to
\nman. Without their protection, man cannot possibly live as a
\nhuman being or develop his intelligence, talents and inner voice
\nto satisfy his needs.<\/p>\n
Human rights also have a social, state and international
\ncontext. The social context cannot be set aside because man,
\napart from being an individual, is also a social being who has a
\nhistory and culture which on the whole must be defended. The
\nstate drives man to meet his obligations (sometimes through
\nrestriction), which are jointly formulated by and for the
\ncommunity. The international context obliges every country to
\nrespect human rights as regulated by the United Nations.<\/p>\n
The first sentence of the Universal Declaration of Human
\nRights says that "respect for human rights and human dignity is
\nthe foundation of freedom, justice and peace in the world".<\/p>\n
In terms of human rights, the right of assembly and expression
\nis included in the category of relative rights, which can only be
\ndeferred and limited depending on certain situations. All
\nlimitations have to be based on certain conditions: (1) They must
\nbe extensively publicized and formulated in legislation (not
\nbased only on an official's unfounded ideas); (2) There must be a
\nstate of emergency which compels urgent protection of the "public
\nmorale, public safety and public goods" and (3) There must be a
\ntime limit.<\/p>\n
In the International Covenant on Civil and Political Rights,
\nparticularly Article 19 item 3, it is also pointed out that
\nfreedom of expression can only be limited provided that it is
\nbased on law and it is necessary (a) for respect of the rights or
\nreputations of others; (b) for the protection of national
\nsecurity or public order and of public health and morals.<\/p>\n
By referring to those universal conditions, we must re-
\nevaluate the various positive regulations in effect and revert to
\nthe 1945 Constitution, which states that the freedom to organize
\nand to assemble and to express thoughts orally and in writing is
\ndetermined by law (Article 28 of the 1945 Constitution).<\/p>\n
Based on this the focus for evaluation must be directed to (1)
\nLaw No.23\/PRP\/1959 which regulates Civilian Emergency Situations;
\n(2) Law No.5\/PNPS\/1963 on Political Activities and (3) Article
\n510 of the criminal code.<\/p>\n
The steps taken by the executive branch to unilaterally
\nregulate the human rights above cannot be justified. What can be
\ndone is to immediately prepare an integral and comprehensive
\ndraft on the laws above, and to submit it immediately to the
\nHouse of Representatives (DPR), where it can be amended into a
\nlegislative product.<\/p>\n
We cannot enforce the laws based on the situation at the time
\nthe laws were passed in 1959, 1963 and in the colonial era (the
\nlast one especially for Article 510 of the penal code).<\/p>\n
The stipulation of Article 27 item 1 of Law No.14 of 1970 on
\nthe Basics of the Judiciary Power, stating that a judge must
\nrefer to the existing values in the community, does not only
\napply to judges. It also applies to the whole sub-system of the
\npenal judicature (police, prosecutors, judges and prisons).<\/p>\n
In this case the legal spirit as mentioned in the preamble
\nand the general explanation of each of the laws must be
\ndifferentiated from the spirit of law enforcement. The two things
\ncan differ if the laws are intrinsically good as is the case with
\nArticle 28 of the 1945 Constitution.<\/p>\n
On the other hand it can be controversial if the law is a
\nlegal product that is no longer compatible with society. Article
\n510 of the KUHP criminal code is a Dutch colonial product. Law
\nNo.23\/PRP\/1959 and Law No.5\/PNPS\/1963 are based on the repressive
\npolitical format (panic regulation) of the previous government.<\/p>\n
Thus, to enforce these three laws, attention must be given to
\ndemocratic conditions and what we call anticipative\/futuristic
\nlaw enforcement.<\/p>\n
The government and the DPR must take prompt action to draw up
\na democratically-based law in order to bolster order and
\nreassurance among the people and the academic community.<\/p>\n
Preventive measures must be taken without violating human
\nrights. Our existing judicature is strong enough to ward off
\nviolations of the law in the face of human rights abuses.<\/p>\n
As an old proverb says, over-criminalization is a
\ncharacteristic of a sick society.<\/p>\n
The writer is Rector of Diponegoro University, Semarang, and a
\nmember of the National Commission on Human Rights.<\/p>",
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