Gus Dur and the KPU: Rethinking discrimination

Gus Dur and the KPU: Rethinking discrimination

Thomas Hidya Tjaya, Jakarta

The issue of discrimination has recently reemerged in the
political discourse in this country as it is gears up for the
presidential election. The General Elections Commission (KPU) has
issued health requirements for presidential and vice presidential
candidates that stipulate, among other things, that they should
have good eyesight.

Almost everybody in the country knows that such a requirement
will surely dash the hopes of the virtually blind Abdurrahman
"Gus Dur" Wahid of the National Awakening Party (PKB) for running
in the election.

Condemning the requirement as discriminatory, he and his party
legally challenged the requirement and sought judicial reviews
from both the Constitutional Court and the Supreme Court.

With Gus Dur's earlier apparent move to withdraw from the
presidential contest and then his latest decision, against all
odds, to run for the seat, the issue has not gone away.
Meanwhile, hundreds of victims of evictions in the capital
recently staged a rally in front of the Supreme Court asking the
justices not to discriminate against Gus Dur.

This issue is both crucial and sensitive in this country, as
we try to build a democracy according to whose principles every
citizen should be granted equal rights and duties, and treated
equally before the law. The relevant question for all of us is
whether the health requirements from the KPU are essentially
discriminative. To put it in another way, does every citizen of
Indonesia have an equal right to be president or hold some other
public office, regardless of health, disabilities or any
conceivable weaknesses on his or her part?

The requirement for presidential candidates to have good
eyesight does appear discriminative, as it bans, now and in the
future as long as the ruling stands, any visually impaired
candidate from running.

In this context, one can appeal to the Universal Declaration
of Human Rights (1948), which states: "All human beings are born
free and equal in dignity and rights." The French Declaration of
the Rights of Man and Citizens (1789), explicitly names these
rights: Liberty, property, security and resistance to oppression.

The Universal Declaration of Human Rights, of course, has a
much more elaborate content and lists different types of rights,
from the right to life and liberty to the right to work under
favorable conditions and to participate in government and the
social life of the community.

All these rights are considered inalienable and essentially
linked to a certain idea of human nature, namely, that human
beings are, among other things, fundamentally free, capable of
self-determination and of social living. This declaration, with
all the rights enlisted therein, functions as a moral force that
demands ratification by all countries in the world.

By stating that all human beings are equal in dignity and
rights, the Universal Declaration is not suggesting that we all
possess the same attribute(s) in the same degree and that there
are no significant differences among us. In social and political
theory, the notion of "equality" is more often prescriptive than
descriptive. In this sense, to say that all human beings are
equal is to demand that we all should be treated alike. By
claiming these rights to be universal, this declaration also
strongly suggests the criterion of impartiality for a moral rule.
Given our common natural rights, we should, all things being
equal, receive more or less the same treatment from governments
or other social agencies.

This is not to say that there can never be legitimate unequal
treatment. A heavier tax burden, for instance, may be imposed on
the rich due to the differences in gross income and other
relevant factors. We do not usually call such a policy
discriminatory because it is well grounded in our idea of
justice.

The principle of impartiality holds that unequal treatment
must be grounded on relevant differences.

When people apply for a job, their social class, ethic group
or religion, for instance, is essentially irrelevant to the
pertinent enterprise and therefore, any decisions made based on
those distinctions would be considered discriminatory.

Likewise, when Chinese-Indonesians born in this country to
Indonesian parents are still required to present proof of
citizenship (SKBRI) when applying for a passport (this is another
hot issue in this country), such a policy is inherently
discriminatory because there is no justifiable grounds for such a
requirement. Thus, where there are no relevant differences, it
would be unfair -- or we would usually say unjust -- to treat
people differently.

In this context, we may also invoke the notion of justice. To
act justly is to treat all people alike, except where there are
relevant differences between them. The differences in treatment,
moreover, should be proportionate to the degrees to which
individuals differ in relevant aspects. In many countries
motorists must give the right of way to ambulances and fire
trucks, out of the consideration that people's lives may well be
at stake.

Vehicles carrying high-ranking government officials usually
enjoy a similar privilege, but for different reasons. The
question to ponder is whether all the differences are relevant to
the privilege given. In the end, doing justice calls for
decision-making, not calculation. That is to say, we have to
decide what is relevant, and what consequences ought to follow.

The case of Gus Dur may entail the issue of discrimination if
we suppose that he is barred from running for the presidency
precisely because of his eyesight, or that the issue of eyesight
is irrelevant to the presidential office. Is the issue relevant
or irrelevant? Is good eyesight necessary or unnecessary for a
president?

In my estimation, many would think it relevant and necessary.

One of the common arguments is that the job of president
requires, for instance, the person actually to see the letters he
or she signs, not simply to rely on the assistance of
presidential aides.

In a country where corruption is rampant and thieves run their
operations before our healthy eyes, the eyesight requirement
appears to be sine qua non. A visually impaired person may be
thus judged incompetent for the job. After all, each type of job
requires certain qualifications, and not all of us meet them.

Thus, the stipulation that presidential and vice presidential
candidates must be healthy, including having good eyesight, stems
from at least two considerations.

First, it is a matter of qualifying criterion for competence
that judges whether or not a person fits the job, and not an
invidious discrimination against the visually impaired as such.
Physical and mental health is one of the basic requirements for
such a candidacy.

Second, becoming a president is not a natural right, but
rather a privilege. Even though the Universal Declaration of
Human Rights upholds the right to participate in government and
in the social life of the community, such a right is still
subject to the more concrete implementation and policy of the
community.

State institutions generally set their conditions, for
instance, the criteria for eligible presidential candidates.
Insofar as it is these institutions that establish the criteria
for eligibility, one can always challenge their arguments.

This is an essential part of political discourse in a
democratic country. For any laws they make and any policies they
establish do not necessarily conform to moral requirements. We
must always, therefore, examine the considerations behind their
rulings and stipulations.

Thus, the issue at stake is not as simple as it appears.

During a recent rally against the "discriminatory" ruling from
the KPU, a mother gave a speech from the back of a pickup truck,
pleading: "We need Gus Dur. Even though blind, when he ruled (as
president), he was able to see our plight with his heart. Gus Dur
is unlike other leaders; although with good eyesight, their
hearts are blind."

It is sad when we have to choose between blind eyes and a good
heart, or good eyes and a blind heart. I hope the current
presidential hopefuls hear this woman's plea.

The writer is a lecturer at the Driyarkara School of
Philosophy in Jakarta.