Citizenship and its rights

Todung Mulya Lubis ,  Jakarta   |  Tue, 06/24/2008 10:01 AM  |  Opinion

Sixty-three years of independence have not given Indonesia a clear understanding about citizenship. Like the constitutions of other countries, Indonesia's Constitution does have an article on citizenship, but the meaning of citizenship has been interpreted subjectively, depending on who is doing the interpreting.

It is evidently clear that citizenship refers to the nationality of an individual with rights and obligations as stipulated in the Constitution and other implementing laws. Those who are not citizens are excluded despite the fact that they also are individuals affected by policies and actions of the state.

It seems that those non-citizens only have obligations, but no rights. The new meaning of citizenship that refers to the rights and obligations of everyone, regardless of nationality, seems to be absent although the discourse has been intellectually stimulating.

The 1945 Constitution has a comprehensive chapter on human rights in which almost all the provisions of human rights, as stipulated in the UN Declaration of Human Rights and the International Covenant on Civil and Political Rights, have been adopted.

Equality, non-discrimination and the right to vote are stipulated and regarded as basic principles of human rights. We treat human rights in a holistic manner, meaning that every right is interdependent and interrelated.

Each human rights provision as stipulated in Article 28 of the 1945 Constitution contributes to the strengthening of the concept of citizenship. It is in this context, for instance, that even a non-citizen has certain rights, which are guaranteed by the Constitution. In other words, human rights in many cases apply to everyone, citizens as well as residents.

After the fall of Soeharto in May 1998, civil and political rights regained an important place in our daily life. Some people even viewed this development as a bit too fast, with state agencies, parliament and the judiciary still not properly equipped to deal with the drastic change from an authoritarian government to a relatively more open and democratic government.

New laws are needed, like the law guaranteeing the right to information, but the initiative to pass such laws seems to be absent. It is not a overstatement to say that democracy in Indonesia is taking place without strong support of implementing laws, despite the fact that the 1945 Constitution contains quite comprehensive human rights protections.

Interestingly, Indonesia has a Constitutional Court where fights over certain rights can take place, and in many cases the Constitutional Court has granted the petition, resulting in a strengthening of the protection of rights, especially civil and political rights. Therefore, the Constitutional Court can be regarded as an important institution that upholds civil and political rights.

It is important to note here that in the last 10 years the Indonesian press has enjoyed unprecedented freedom, not to mention that together with the Philippines our press is the most liberal compared with neighboring countries. A free press has been instrumental in securing civil and political rights.

This is not to say that attempts to reduce the independence of the press have not been made both by the state and the capital, but press freedom prevails. To return to an unfree press, which in the past was called a "responsible press", seems highly unlikely but we must admit that capital has already succeeded in penetrating the press institutions by acquiring and controlling ownership. It remains to be seen as to whether the free press can survive in the future.

The other element that plays an important role in securing civil and political rights is active civil society organizations. Civil society does not have political interests like political parties. Civil society acts a prime mover in the fight against those attempting to reduce civil and political rights, also acting as an advocate of new rights to be deliberated and enacted.

It is not a mistake if we say that civil society most of the time acts as a countervailing power vis a vis political parties, conglomerates and the state. In saying this, please do not make the mistake of thinking that civil society has not been penetrated by capital and the state. Attempts to weaken civil society have been on the agenda of every government even in a democratic state.

So, in Indonesia's case, where a transition to democracy is taking place and judiciary does not function properly, where corruption seems to be systemic and endemic, where marginalized people are nor represented, three pillars of civil and political rights seem to play an important role in gaining, strengthening and guaranteeing civil and political rights. They are free press, civil society and the Constitutional Court.

The active role of those three institutions serves as proof that there is still reason to be optimistic, at least guardedly.

The author is chairman and member of the board of founders of the Association of Education for Democracy (P2D).

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