Rule of law, human rights concept don't exist: Expert

DEPOK, West Java (JP): There is no supremacy of law in Indonesia because the 1945 Constitution, which has helped mold the nation, does not recognize the concept, an expert on constitutional law says.

H. Azhary said yesterday, in an oration marking his professorship at the University of Indonesia, that the concepts of "rule of law" and human rights as they are known in the western world do not exist in Indonesia, because the 1945 Constitution does not recognize them.

Breaking away from mainstream discourses on the topics, Azhary said that "there's no way we can implement a rule of law because the Constitution does not adhere to the concept".

A dictionary of legal terms defines "rule of law" as a term which connotes "the undisputed supremacy of law and envisages a state of things in which everyone respects the law and where law has to be followed by everyone collectively and individually by the citizens as well as the state".

The concept of "a constitution based on human rights", which is inherent in the concept of "rule of law", is not relevant in Indonesia where "human rights are based on constitution," Azhary told the university's senate of professors.

Current public discourses on, as well as demands for, human rights are therefore off-target because they are based on the western concepts of human rights and rule of law, he said.

The discrepancy occurs because "we go from different starting points", he said.

A rule of law encompasses the concept of "equality before law"; Indonesia's Constitution, on the other hand, requires the concept of "equality before law as well as before the government," he said.

Supreme Court Justice Bismar Siregar who attended the ceremony supported Azhary's opinion. He said the public is "mistaken" if they employ such western concepts in their demands that human rights be observed in Indonesia.

"I cry when I see our law experts use western concepts of human rights in their arguments," he said. Indonesia, he believes, has a superior concept of human rights because the country and the Constitution are based on the principle of "faith to God".

The five tenets in the state-ideology Pancasila are adequate to cover all demands for justice and the observation of human rights, he said.

The five tenets are faith toward one God, humanitarianism, national unity, democracy through consensus and social justice.

He rejected demands by some for authorities and the Constitution to guarantee "legal certainty" as proof of human rights protection.

"We don't recognize the concept of legal certainty. What we have, instead, is a quest for justice," he said.

"Seen in this light, even the concept of power takes on a different meaning," he said. "Power is a mandate from God."

Azhary also spoke of the local concept of power. He said the country does not recognize either "separation of power" or "distribution of power".

Azhary said the Constitution does not adhere to the concept of trias politica, developed by the French scholar Montesquieu in the 17th century, in which the state's power is equally distributed among the legislative, judicial and executive branches.

Azhary said that the 1945 Constitution rules that the supreme power of the state lies in the hand of the People's Consultative Assembly (MPR) which gives the president a mandate to run the administration.

The Constitution also stipulates that the president is the highest state administrator who acts directly under the Assembly, and the president is not accountable to the House of Representatives (DPR).

"We don't recognize the concept of distribution of power because the MPR does not distribute the power that it holds," Azhary said. "Instead, it delegates the state's power to the president."

Given the unique roots of Indonesia's laws and state administration concepts, "we'll encounter discordancy if we try to use western theories and values to evaluate the practices of our state administration," he said.

Born in Jakarta in 1936, Azhary is the 14th professor to be inducted into the University of Indonesia this year. (swe)