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.