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A separate law, the outdated, though still enforced, Law No.5/PNPS/1963, defines all meetings, gatherings and demonstrations as "political activities".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.