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.