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

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)