Assembly permits: A question of rights

Assembly permits: A question of rights

By Muladi

SEMARANG (JP): Freedom to assemble and freedom to speak have
been hot topics of discussion lately.

A review of the permits that regulate these rights, currently
being carried out by the government, calls for utmost caution
because their implementation will be supported by the infamous
criminal code.

These permits, apart from restricting and limiting human
rights, fall under the jurisdiction of administrative law.

Whereas the criminal code has its own penalties, permits work
on an operational level.

For example, a police permit is required by those who want to
hold a party or public gathering as stipulated in Article 510 of
the criminal code.

A separate law, the outdated, though still enforced, Law
No.5/PNPS/1963, defines all meetings, gatherings and
demonstrations as "political activities". Under this law, a
notification to the police and to the now defunct National Front
agency are required to carry out these activities.

The matter of gathering and speaking permits must be
understood thoroughly and should not be treated in a trivial and
fragmented way. Human rights are inalienable rights belonging to
man. Without their protection, man cannot possibly live as a
human being or develop his intelligence, talents and inner voice
to satisfy his needs.

Human rights also have a social, state and international
context. The social context cannot be set aside because man,
apart from being an individual, is also a social being who has a
history and culture which on the whole must be defended. The
state drives man to meet his obligations (sometimes through
restriction), which are jointly formulated by and for the
community. The international context obliges every country to
respect human rights as regulated by the United Nations.

The first sentence of the Universal Declaration of Human
Rights says that "respect for human rights and human dignity is
the foundation of freedom, justice and peace in the world".

In terms of human rights, the right of assembly and expression
is included in the category of relative rights, which can only be
deferred and limited depending on certain situations. All
limitations have to be based on certain conditions: (1) They must
be extensively publicized and formulated in legislation (not
based only on an official's unfounded ideas); (2) There must be a
state of emergency which compels urgent protection of the "public
morale, public safety and public goods" and (3) There must be a
time limit.

In the International Covenant on Civil and Political Rights,
particularly Article 19 item 3, it is also pointed out that
freedom of expression can only be limited provided that it is
based on law and it is necessary (a) for respect of the rights or
reputations of others; (b) for the protection of national
security or public order and of public health and morals.

By referring to those universal conditions, we must re-
evaluate the various positive regulations in effect and revert to
the 1945 Constitution, which states that the freedom to organize
and to assemble and to express thoughts orally and in writing is
determined by law (Article 28 of the 1945 Constitution).

Based on this the focus for evaluation must be directed to (1)
Law No.23/PRP/1959 which regulates Civilian Emergency Situations;
(2) Law No.5/PNPS/1963 on Political Activities and (3) Article
510 of the criminal code.

The steps taken by the executive branch to unilaterally
regulate the human rights above cannot be justified. What can be
done is to immediately prepare an integral and comprehensive
draft on the laws above, and to submit it immediately to the
House of Representatives (DPR), where it can be amended into a
legislative product.

We cannot enforce the laws based on the situation at the time
the laws were passed in 1959, 1963 and in the colonial era (the
last one especially for Article 510 of the penal code).

The stipulation of Article 27 item 1 of Law No.14 of 1970 on
the Basics of the Judiciary Power, stating that a judge must
refer to the existing values in the community, does not only
apply to judges. It also applies to the whole sub-system of the
penal judicature (police, prosecutors, judges and prisons).

In this case the legal spirit as mentioned in the preamble
and the general explanation of each of the laws must be
differentiated from the spirit of law enforcement. The two things
can differ if the laws are intrinsically good as is the case with
Article 28 of the 1945 Constitution.

On the other hand it can be controversial if the law is a
legal product that is no longer compatible with society. Article
510 of the KUHP criminal code is a Dutch colonial product. Law
No.23/PRP/1959 and Law No.5/PNPS/1963 are based on the repressive
political format (panic regulation) of the previous government.

Thus, to enforce these three laws, attention must be given to
democratic conditions and what we call anticipative/futuristic
law enforcement.

The government and the DPR must take prompt action to draw up
a democratically-based law in order to bolster order and
reassurance among the people and the academic community.

Preventive measures must be taken without violating human
rights. Our existing judicature is strong enough to ward off
violations of the law in the face of human rights abuses.

As an old proverb says, over-criminalization is a
characteristic of a sick society.

The writer is Rector of Diponegoro University, Semarang, and a
member of the National Commission on Human Rights.