Why ratify the civil rights covenant?

Ridarson Galingging Jakarta

The government is expected to ratify the International Covenant on Civil and Political Rights (ICCPR). The ratification will make the ICCPR a binding legal instrument that can be enforced domestically.

But what is it that makes it crucial for the current government to ratify it? Indonesia in fact already has human rights laws, a Human Rights Commission, and apparently, is the only country in the world to establish a human rights (ad hoc) court.

The ICCPR, which was adopted by the UN in 1966, is one of the most important international legal instruments for human rights protection. This covenant regulates how states should treat their own citizens by applying a single global standard of human rights norms.

The ICCPR is a basic "human rights code" and some of its provisions have become international customary law referred to by judicial bodies worldwide when human rights are being discussed or cases decided.

This human rights treaty contains fundamental rights ranging from the right to life, freedom of thought, conscience and religion, due process rights, protection of the family and children, rights of political participation and minority rights, among many others.

Ratification will reflect a strong commitment by the government that Indonesia is serious in its effort to promote and protect human rights domestically and internationally.

Ratifying the ICCPR will mean that when the country talks about human rights, Indonesia will join the rest of the world and use a "universal human rights language", not its own version of human rights, often used in the past by Indonesian state officials and judicial bodies.

The government will also show its readiness to face legal claims from its own citizens and the international community whenever it fails to obey and enforce the ICCPR provisions.

Thus the ICCPR will be complementary to the incomplete rights contained in the 1945 Constitution, and it also provides alternative forums for Indonesian citizens who can claim that their constitutional rights have been violated by the state.

If the government wants the country to have stronger human rights mechanisms, it should also ratify the Rome Statute of the International Criminal Court (ICC) that criminalizes individuals who commit war crimes, crimes against humanity, and genocide.

The ratification will not bring all the legal changes needed overnight. Human rights are complex, and violations involve the military, entrenched power interests, and an existing anti-human rights culture.

Indonesia still has a lot of work to do in order to integrate the values and norms contained in the ICCPR into the country's domestic legal system and institutions.

Many laws and regulations need to be amended. ICCPR training should be provided to judges, prosecutors, attorneys, and the police. The state also needs to allocate funds from its already limited budget to support all these programs that will promote the ICCPR.

A further consequence of the ratification is that the Indonesian judiciary and judges need to familiarize themselves with the decisions and jurisprudence of the world's leading judicial bodies such as the European Court of Human Rights, the Inter American Court of Human Rights, and the Human Rights Committee, which is the ICCPR monitoring body.

To make the ratification impact be felt directly by every individual citizen, the First Optional Protocol to the ICCPR should also be ratified. The ratification of this Protocol will make it possible for individual citizens to file a direct complaint to the Human Rights Committee if they feel that a domestic judicial body's decision violates ICCPR provisions.

The government will be required by the ICCPR to submit periodic reports to the Human Rights Committee on how far the country has put into practice all its commitments to bring all its laws and regulation in line with ICCPR provisions.

There are certain issues that will be the focus of the Human Rights Committee later if Indonesia ratifies the ICCPR. A relevant example that would be the subject of scrutiny would be the imposition of flogging as punishment in Aceh.

Indonesia needs to justify its consent to the imposition of flogging as a punishment by Aceh local authorities. The justification is required because in 1997 the UN Commission on Human Rights stated that "corporal punishment [such as flogging] can amount to cruel, inhuman or degrading punishment, or even torture."

The practice of "freedom of religion" in Indonesia would also be questioned, related to the application of Article 18 of the ICCPR. Indonesia only recognizes five "official religions". The existence of other religions outside of these five official religions is not tolerated. How then will the government respond to the ICCPR provision that recognizes every individual's right to freely practice his or her religion or beliefs whatever that religion may be, even if it is not an "official" or "recognized" religion?

Despite all the above-mentioned obstacles that will certainly not be easy to overcome in the short term, Indonesia, nevertheless, will gain several legal and political advantages by ratifying the ICCPR.

Ordinary Indonesians will get access to alternative forums to address their human rights problems when domestic laws, institutions and procedures fail to guarantee and protect their ICCPR rights.

The Indonesian judiciary and judges will be challenged to produce pro-human rights decisions and jurisprudence if they don't want to see their decisions scrutinized and reviewed by the Human Rights Committee.

The Indonesian legal system will be challenged and forced to conform to the ICCPR provisions and the system's image will thus (finally) be improved at home and abroad.

The writer (r-galingging2004@law.northwestern.edu) is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at Northwestern University School of Law in Chicago.