Gus Dur and the KPU: Rethinking discrimination<\/p>\n
Thomas Hidya Tjaya, Jakarta<\/p>\n
The issue of discrimination has recently reemerged in the
\npolitical discourse in this country as it is gears up for the
\npresidential election. The General Elections Commission (KPU) has
\nissued health requirements for presidential and vice presidential
\ncandidates that stipulate, among other things, that they should
\nhave good eyesight.<\/p>\n
Almost everybody in the country knows that such a requirement
\nwill surely dash the hopes of the virtually blind Abdurrahman
\n\"Gus Dur\" Wahid of the National Awakening Party (PKB) for running
\nin the election.<\/p>\n
Condemning the requirement as discriminatory, he and his party
\nlegally challenged the requirement and sought judicial reviews
\nfrom both the Constitutional Court and the Supreme Court.<\/p>\n
With Gus Dur's earlier apparent move to withdraw from the
\npresidential contest and then his latest decision, against all
\nodds, to run for the seat, the issue has not gone away.
\nMeanwhile, hundreds of victims of evictions in the capital
\nrecently staged a rally in front of the Supreme Court asking the
\njustices not to discriminate against Gus Dur.<\/p>\n
This issue is both crucial and sensitive in this country, as
\nwe try to build a democracy according to whose principles every
\ncitizen should be granted equal rights and duties, and treated
\nequally before the law. The relevant question for all of us is
\nwhether the health requirements from the KPU are essentially
\ndiscriminative. To put it in another way, does every citizen of
\nIndonesia have an equal right to be president or hold some other
\npublic office, regardless of health, disabilities or any
\nconceivable weaknesses on his or her part?<\/p>\n
The requirement for presidential candidates to have good
\neyesight does appear discriminative, as it bans, now and in the
\nfuture as long as the ruling stands, any visually impaired
\ncandidate from running.<\/p>\n
In this context, one can appeal to the Universal Declaration
\nof Human Rights (1948), which states: \"All human beings are born
\nfree and equal in dignity and rights.\" The French Declaration of
\nthe Rights of Man and Citizens (1789), explicitly names these
\nrights: Liberty, property, security and resistance to oppression.<\/p>\n
The Universal Declaration of Human Rights, of course, has a
\nmuch more elaborate content and lists different types of rights,
\nfrom the right to life and liberty to the right to work under
\nfavorable conditions and to participate in government and the
\nsocial life of the community.<\/p>\n
All these rights are considered inalienable and essentially
\nlinked to a certain idea of human nature, namely, that human
\nbeings are, among other things, fundamentally free, capable of
\nself-determination and of social living. This declaration, with
\nall the rights enlisted therein, functions as a moral force that
\ndemands ratification by all countries in the world.<\/p>\n
By stating that all human beings are equal in dignity and
\nrights, the Universal Declaration is not suggesting that we all
\npossess the same attribute(s) in the same degree and that there
\nare no significant differences among us. In social and political
\ntheory, the notion of \"equality\" is more often prescriptive than
\ndescriptive. In this sense, to say that all human beings are
\nequal is to demand that we all should be treated alike. By
\nclaiming these rights to be universal, this declaration also
\nstrongly suggests the criterion of impartiality for a moral rule.
\nGiven our common natural rights, we should, all things being
\nequal, receive more or less the same treatment from governments
\nor other social agencies.<\/p>\n
This is not to say that there can never be legitimate unequal
\ntreatment. A heavier tax burden, for instance, may be imposed on
\nthe rich due to the differences in gross income and other
\nrelevant factors. We do not usually call such a policy
\ndiscriminatory because it is well grounded in our idea of
\njustice.<\/p>\n
The principle of impartiality holds that unequal treatment
\nmust be grounded on relevant differences.<\/p>\n
When people apply for a job, their social class, ethic group
\nor religion, for instance, is essentially irrelevant to the
\npertinent enterprise and therefore, any decisions made based on
\nthose distinctions would be considered discriminatory.<\/p>\n
Likewise, when Chinese-Indonesians born in this country to
\nIndonesian parents are still required to present proof of
\ncitizenship (SKBRI) when applying for a passport (this is another
\nhot issue in this country), such a policy is inherently
\ndiscriminatory because there is no justifiable grounds for such a
\nrequirement. Thus, where there are no relevant differences, it
\nwould be unfair -- or we would usually say unjust -- to treat
\npeople differently.<\/p>\n
In this context, we may also invoke the notion of justice. To
\nact justly is to treat all people alike, except where there are
\nrelevant differences between them. The differences in treatment,
\nmoreover, should be proportionate to the degrees to which
\nindividuals differ in relevant aspects. In many countries
\nmotorists must give the right of way to ambulances and fire
\ntrucks, out of the consideration that people's lives may well be
\nat stake.<\/p>\n
Vehicles carrying high-ranking government officials usually
\nenjoy a similar privilege, but for different reasons. The
\nquestion to ponder is whether all the differences are relevant to
\nthe privilege given. In the end, doing justice calls for
\ndecision-making, not calculation. That is to say, we have to
\ndecide what is relevant, and what consequences ought to follow.<\/p>\n
The case of Gus Dur may entail the issue of discrimination if
\nwe suppose that he is barred from running for the presidency
\nprecisely because of his eyesight, or that the issue of eyesight
\nis irrelevant to the presidential office. Is the issue relevant
\nor irrelevant? Is good eyesight necessary or unnecessary for a
\npresident?<\/p>\n
In my estimation, many would think it relevant and necessary.<\/p>\n
One of the common arguments is that the job of president
\nrequires, for instance, the person actually to see the letters he
\nor she signs, not simply to rely on the assistance of
\npresidential aides.<\/p>\n
In a country where corruption is rampant and thieves run their
\noperations before our healthy eyes, the eyesight requirement
\nappears to be sine qua non. A visually impaired person may be
\nthus judged incompetent for the job. After all, each type of job
\nrequires certain qualifications, and not all of us meet them.<\/p>\n
Thus, the stipulation that presidential and vice presidential
\ncandidates must be healthy, including having good eyesight, stems
\nfrom at least two considerations.<\/p>\n
First, it is a matter of qualifying criterion for competence
\nthat judges whether or not a person fits the job, and not an
\ninvidious discrimination against the visually impaired as such.
\nPhysical and mental health is one of the basic requirements for
\nsuch a candidacy.<\/p>\n
Second, becoming a president is not a natural right, but
\nrather a privilege. Even though the Universal Declaration of
\nHuman Rights upholds the right to participate in government and
\nin the social life of the community, such a right is still
\nsubject to the more concrete implementation and policy of the
\ncommunity.<\/p>\n
State institutions generally set their conditions, for
\ninstance, the criteria for eligible presidential candidates.
\nInsofar as it is these institutions that establish the criteria
\nfor eligibility, one can always challenge their arguments.<\/p>\n
This is an essential part of political discourse in a
\ndemocratic country. For any laws they make and any policies they
\nestablish do not necessarily conform to moral requirements. We
\nmust always, therefore, examine the considerations behind their
\nrulings and stipulations.<\/p>\n
Thus, the issue at stake is not as simple as it appears.<\/p>\n
During a recent rally against the \"discriminatory\" ruling from
\nthe KPU, a mother gave a speech from the back of a pickup truck,
\npleading: \"We need Gus Dur. Even though blind, when he ruled (as
\npresident), he was able to see our plight with his heart. Gus Dur
\nis unlike other leaders; although with good eyesight, their
\nhearts are blind.\"<\/p>\n
It is sad when we have to choose between blind eyes and a good
\nheart, or good eyes and a blind heart. I hope the current
\npresidential hopefuls hear this woman's plea.<\/p>\n
The writer is a lecturer at the Driyarkara School of
\nPhilosophy in Jakarta.<\/p>",
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