RI racist laws need to be revoked
RI racist laws need to be revoked
By Frans Tan Winarta
JAKARTA (JP): When Indonesia proclaimed its independence on
Aug. 17, 1945, through Sukarno and Hatta, it gained de facto and
de jure recognition from the international community.
In line with the spirit of the 19th century, the Indonesian
founding fathers made Indonesia a state based on law and not
based on power.
The idea of a state based on law was introduced in Europe in
the 17th century concomitant with the emergence of individualism.
At the same time it was stimulated by the Renaissance and the
spirit of reform at that time.
The question now is how should the relationship between the
state and individual be regulated?
To implement its duties the state needs power. But what sort
of power should be granted to the state?
Questions are always lingering on how to limit the state's
power and on the legitimacy of individuals' right to privacy.
According to one of Indonesian founding fathers, Mohamad Yamin
in The Understanding of the State Based on Law, the definition of
a state based on law is power executed by the government solely
on the basis of and originating from law and absolutely not from
military dominance, abuse of power or the use of physical power
in order to solve problems.
We should not forget that the state is not a machine. In its
daily activities it should be represented by human beings. Human
beings are not perfect and tend to make mistakes.
Soedirman Kartohadiprodjo once said the state represented by
human beings should act in line with humanity and justice in its
efforts to achieve a state based on law.
In essence the state should act according to the law. The law
is the source of power and the power should not overwhelm the
concept of state based on law.
During the Renaissance, in which individuals found their
identity, there was a greater demand of legitimacy on
individuals. This was a natural reaction against the absolute
power of the king at the time.
In a state based on law, power is limited, especially against
individuals. The state is not omnipotent. The state can make
mistakes. This is called the rule of law in the Common Law
context. Individuals have rights against the state.
In other words, individuals have rights against power and the
rest of society. Violations of individual rights can only be done
by law and based on law. This is called the principle of
legality. However, all decisions should be based on law. The law
should be promulgated prior to the state's decisions, which can
be considered as a limitation of the state's power.
A national constitution, which carries the principle of laws
and regulations should be obeyed, both by the government and its
institutions.
Human rights, known initially as "basic rights" and only
called "human rights" after the United Nations Declaration of
Human Rights in 1948, are considered an important factor in a
state based on law. The law acknowledges human rights such as
freedom of religion, freedom of expression and freedom of
association.
The state should not prohibit a person from worshiping. The
state should not interfere with religious affairs. The right to
practice religion is in the hands of each individual. This is
what is meant by being in line with the law. Therefore it is
important to make sure the achievement of a humane and just
legality is drafted directly by the people through their
representatives in the legislature.
However, to execute the state's power only on the basis of law
is not enough, owing to the fact that totalitarian regimes often
use the law for repressive ends. The opposite of a state based on
law is a police state.
Now let us analyze how laws were used for discriminatory
purposes during the rule of the New Order under Soeharto and how
the Chinese-Indonesians were made the target of racial
discrimination and apparently became the most apolitical human
beings, shunned from politics and only allowed to be active in
the business sector, so they would become an exclusive group
segregated from indigenous Indonesians.
They were coerced into a situation similar to that they
experienced in the Dutch colonial era. To control the Chinese,
the Dutch confined them to Chinatowns. There was a time when the
Chinese needed passes to get in and out of their living
compounds.
Rebellions against the Dutch produced a situation where the
Chinese had to be segregated from the indigenous Indonesians to
rule out collaboration against the Dutch.
Immediately after the abortive communist coup in September
1965, the New Order implemented a racist policy akin to that of
the Dutch colonial times. The regime systematically limited,
suppressed and destroyed the political rights of Chinese-
Indonesians through laws and regulations.
However the opportunity to do business is neither a gift nor a
favor from the state. It is a human right that every individual
is entitled to earn a living and live a good life.
Chinese-Indonesians do not owe anything to the state. In fact
they have contributed to the development of the country.
Perhaps the conglomerates owe something to the New Order
regime but they do not represent all Chinese-Indonesians. They
are not the leaders of the 10 million Chinese-Indonesians.
Among the laws and regulations introduced by the New Order to
curtail the civil and political rights of the Chinese-Indonesians
were presidential instructions, circulation letters from the
cabinet and ministerial decrees:
1. SE 02/SE/Ditjen/PPG/K1978 on prohibition against Chinese
characters and publications;
2. Presidential Instruction No. 14/1967 on Chinese religion,
worshiping and customs;
3. Instruction of the Minister of Home Affairs on Chinese
shrines;
4. Regional Regulation of Jakarta on screening of certificate of
citizenship K-1/os-III/os-12;
5. Cabinet Presidium of RI Circulation SE-06/Pres-Kab/6/1967 on
the change of the term China and Chinese to "Cina".
6. State Gazette 1917-130 on Civil Registration of Chinese
Foreign Easterners.
7. Cabinet Presidium Ampera Decree Kep. Presidium No.
127/U/Kep/12/1966 on Regulation to change Chinese Names
8. Presidential Instruction No. 37/U/IN/6/1967 on Coordinating
Board of Chinese Problems
Such laws and regulations should not be imposed in a state
based on law. Not to mention the old Dutch Civil Code is still
effective, dividing the population into three categories:
Europeans, foreign Easterners and indigenous people. Also the
1945 Constitution, although it was originally meant for the
Japanese emperor, stipulates that the president of the Republic
of Indonesia must be an indigenous Indonesian.
This is, of course, not conducive to the integration of the
ethnic Chinese into society. The banning of Chinese schools and
Chinese language, limitation of Chinese newspapers and
publications, changing Chinese names and so forth are against
human rights. These divisions, extending over more than three
decades, have disrupted their natural acculturation and
integration.
It is high time for the government to repeal the
discriminative laws and regulations. The violation of the right
to life, right to property and the right to liberty is a serious
violation of human rights. During the May rioting there were
lootings, burnings and gang rapes.
Many Chinese-Indonesian traders fled the country to find
refuge in their efforts to avoid the threats and terror directed
against them, their property and liberty guaranteed in the United
Nations Convention on the Elimination of all Forms of Racial
Discrimination and United Nations Declaration on the Elimination
of All Forms of Racial Discrimination. Article 5 (d) (i) of the
convention guarantees "the right to leave any country, including
one's own and to return to one's country."
To prevent such occurrences continuing, the government should
seriously consider ratifying those documents and investigate the
perpetrators and the mastermind of the holocaust, try them and
announce publicly.
This move will be supported domestically as well as
internationally. If Indonesia does not ratify the convention and
declaration it will never regain its credibility and will suffer
the consequences of conducting its own form of "apartheid".
The writer is a human rights lawyer based in Jakarta
Window A: However, to execute the state's power only on the basis
of law is not enough, owing to the fact that totalitarian regimes
often use the law for repressive ends. The opposite of a state
based on law is a police state.
Window B: It is high time for the government to repeal the
discriminative laws and regulations. The violation of the right
to life, right to property and the right to liberty is a serious
violation of human rights.