Papers on Human Rights ( HAM )
Background
Rights are normative elements inherent in every human being in its application to the scope of the right of equality and the right of freedom associated with the interaction between individuals or by institutions . The right is also something that must be earned . Human rights issue is something that often talked about and discussed , especially in this era of reform . Upheld human rights more and more attention in the reform era of the pre-reform era . Keep in mind that , in the enjoyment of rights, we do not live alone and we live to socialize with other people . Let us not commit human rights violations against others in the business acquisition or fulfillment in ourselves .
The rule of law is a legal doctrine that began to emerge in the century - 19 ,
simultaneously with the birth of the State Constitution and democracy . Ian was born with the flourishing of democracy in line and increasing the role of parliament in the administration of the State and as a reaction to the absolute state that developed previously . Rule Of Law is a common law concept which is whole aspek.Negara uphold the rule of law and principles of justice egalitarian.Latar dibangundiatas behind the birth of the rule of law begins with the idea of limiting the power of government to the State Facilities selected for this purpose and constitution yaitudemokrasi Formulation juridical conception of the State and democracy konstitusionaladalah hukumDi Indonesia , the core of the rule of law is a guarantee for the people adanyakeadilan . Especially social justice
In order for the discussion of this problem is not too extensive and more focused on issues and objectives in this making of this paper , the authors then to limit the scope of the problem only on " Ham & Rule Of Law " .
a) Definition of Human Rights
In Article 1 of Law Number 39 Year 1999 on Human Rights stated that " human rights are a set of rights attached to nature and human existence as a creature of the Almighty God and is His grace that must be respected , upheld and protected by the state , law , government and every person , for the respect and protection of human dignity " .
Based on the above understanding of human rights , it can be deduced about the nature of human rights some of the main features are:
· Human rights need not be given , purchased or inherited . Human rights are part of human automatically.
· Human rights apply to all people without regard to sex , race , religion , ethnicity , political opinion or social origin and nation .
· Human rights can not be violated . No one has the right to restrict or violate the rights of others . People still have rights even if a state makes laws that do not protect or violate human rights ( Mansour Fakih , 2003) .
b ) Definition of the rule of law
The rule of law is a legal concept that is actually born from a form of protest against an absolute power in a country . In order to limit the absolute power it is necessary restrictions on the powers that rule are arranged so as not to violate the fundamental interests of society , with demikia
. Dalamrangka limiting the absolute power makadiperlukan restrictions on the power , so the power is laid out so as not melanggarkepentingan Rights of the people , by demikianmasyarakat avoid actions against hokumyang carried out by the authorities .
The development of Human Thought
Divided into four generations , namely :
The first generation of human rights argue that the notion that only focused on the field of law and politics . The focus of the first generation of human rights thinking in the field of law and politics and the situation caused by the impact of World War II , totalitarianism and the desire Countries newly independent legal order to create something new .
The second generation of human rights ideas are not only demanding the rights of juridical rights but also social , economic , political and cultural . So the thought of a second -generation human rights shows the expansion of understanding of the concept and scope of human rights . During the second generation , juridical rights received less emphasis so that there is an imbalance in social and cultural rights , economic rights and political rights .
The third generation in response to the second generation of human rights thinking . The third generation of promising the unity between the economic, social , cultural , political , and legal in a basket called to carry out the development rights . In the implementation of the ideas of human rights of third generation also experienced an imbalance where there is an emphasis on economic rights in terms of economic development a top priority , while other rights neglected , causing many casualties , because a lot of other people's rights are violated .
The fourth generation of the highly criticized the dominant role of the state in the development process that focuses on economic development and cause negative effects such as the neglect of the people's welfare aspects . Besides development programs being run not by the needs of the people as a whole but meet the needs of an elite group . The fourth generation of human rights ideas pioneered by countries in the region which in 1983 gave birth to the declaration of human rights is called the Declaration of the Basic Duties of Asian People and Government
Development of thinking stems from the world of human rights :
Magna Charta
In general, experts in Europe believe that the birth of human rights in Europe started with the birth magna Charta , which contains the view that the king had absolute power ( the king who created the law , but he himself is not bound by laws made ) , be restricted power and began to be held accountable before the law ( Mansour Effendi ,
The American declaration
Further development of human rights is characterized by the emergence of the American Declaration of Independence , who was born from familiar Rousseau and Montesquuieu . Begin emphasized that humans are independent from her mother in the stomach , so it is not logical that after the birth he must be shackled .
The French declaration
Subsequently , in 1789 was born the French Declaration ( Declaration of France ) , where the terms on the right are specified as stated in the Rule of Law which, among other sounds there should be no arrest without a valid reason . In that respect the principle of presumption of innocence applies , meaning that the people who were arrested , then detained and charged , entitled declared not guilty , until there is a court decision that is final and binding which found him guilty .
The four freedom
There are four rights of freedom of speech and expression , right to freedom of religion and worship according to the teachings of religious needs, the right to freedom from poverty in the definition of each nation trying to reach the level of a peaceful and prosperous life for its residents , the right to freedom from fear , which include businesses , reduction of armaments , so that none of the nation's desire to be in a position to carry out an attack against another country ( Mansour Effendi , 1994) .
The development of human rights thinking in Indonesia :
Human thought pre-independence period were most prominent in the Indische Partij is right to liberty and the right to equal treatment independence .
Since independence in 1945 until now in Indonesia has 3 Constitution applies in four periods , namely :
The period of August 18, 1945 until December 27, 1949 , 1945 prevail
The period December 27, 1949 until August 17, 1950 , the Constitution of the Republic of Indonesia applicable United
The period of August 17 to July 5, 1959 , 1950 Constitution applies
The period July 5, 1959 to the present , apply Back 1945
Review of Human Rights in Islam
The existence of the doctrine of human rights in Islam shows that Islam as a religion has placed man as honorable and noble creatures . Therefore , protection and respect for human itself is a doctrine demands that must be carried out by his followers against fellow human beings without exception . The rights given by God it is permanent , eternal and immortal , should not be altered or modified ( Abu Ala Almaududi , 1998) . In Islam there are two concepts of rights , namely the right man ( insan al rights ) and the rights of God . Any rights that underlies each other mutually . God underlies human rights and vice versa . In its application , none of the rights that apart from the two rights , such as prayer .
While in the case of al beings as property rights , every human being has the right to manage its assets .
Islamic concept of human life based on a theocentric approach ( theocentries ) or who puts God through the provision of Islamic law as a benchmark of good bad order of human life both as individuals and as citizens or residents of the nation masyarakjat . As such the Islamic concept of human rights rests on the doctrine of monotheism . The concept of monotheism contains the idea of equality and brotherhood of man . The concept of Tawheed also includes the idea of equality and unity of all beings by Harun Nasution and Bahtiar Effendi called perikemakhlukan idea . Islam came inherently carry the doctrine of human rights , Islamic doctrine of human rights can be found in the teachings of Islam that is the primary source of al - Quran and al - Hadith are a source of normative doctrine , there is also a practice of Muslims life .
Judging from the level , there are three forms of human rights in Islam , first , Darury Rights ( basic rights ) . Something considered basic rights when these rights are violated , not only makes the human suffering , but also the dignity of humanity is lost even its existence . For example , if the right to life is violated then it means the person is dead . Second , secondary rights ( hajy ) that the rights which if not met will result in the loss of rights elementary example , a person's right to obtain adequate food and clothing it will result in the loss of the right to life . Third rights tertiary ( tahsiny ) the right of the lower level of primary and secondary rights ( Masdar F. Mas'udi , 2002)
On Human Rights relating to the rights of citizens , Al Maududi explains that in Islam the first and main rights of citizens are :
Protect life , property and dignity they together with the assurance that we are not interfered with this right , except for reasons of legitimate and illegal .
Protection of personal freedom . Privacy can not be violated except after going through the process of convincing evidence is legally and provide the opportunity for the accused to present a defense
Independence to express opinions and beliefs embraced each
Guarantees the fulfillment of basic needs for all citizens without distinction of caste or creed . One of the obligation of zakat to Muslims , one of them to meet the basic needs of citizens .
Human Rights in National Legislation
In Indonesian law there are at least a written legal form which contains rules on human rights . First , the constitution ( Constitution State ) . Second , the provision MPR ( MPR ) . Third , the Act . Fourth , the regulations implementing legislation such as government regulations , presidential decrees and other regulations .
Excess regulation of human rights in the constitution guarantees a very strong because of the changes and or removal of the article in the constitution as the constitutional process in Indonesia has a very heavy and long , including through amendments and referendum , while weakness as stipulated in the constitution only contains rules still such global human rights provisions in the constitution of the Republic of Indonesia which is still global . Meanwhile, when the arrangement of human rights in the form of laws and implementing regulations weakness , the possibility of frequent changes .
Violations of human rights and human rights courts
Human rights violations are all actions by individuals or groups of people, including state officials whether intentional or unintentional, which legally reduce , impede , restrict or revoke rights and a person or group of persons is guaranteed by this Act , and not obtained or will not feared obtaining settlement law ( law no. 26/2000 on Human Rights court ) . While mild forms of human rights violations in addition to the two forms of the gross human rights violations .
The crime of genocide is any act committed with intent to destroy or obliterate all or some groups of nations, races , ethnic groups and religious groups . The crime of genocide carried out by killing members of the group , causing serious bodily or mental harm to members of the group , creating conditions of life that will result in physical extermination whole or in part , imposing measures intended to prevent births within the group , and forcibly transferring children of the group to another group ( Law no. 26/2000 on Human Rights court ) .
While it is a crime against humanity is one of the following acts when committed as part of a widespread or systematic attack he knows that such attacks directly aimed at civilians through murder , extermination , enslavement , expulsion or forcible transfer of population , deprivation of liberty or deprivation of physical liberty in other arbitrarily in violation of ( the principles of ) basic provisions of international law , torture , rape , sexual slavery , forced prostitution or other forms of sexual violence are equal , the persecution of a particular group or association that is based on common political beliefs , race , nationality , ethnicity , culture , religion , gender or other grounds that are universally recognized as impermissible under international law , enforced disappearances , and the crime of apartheid .
Violation of human rights can be done by both the state apparatus and not the state apparatus ( Law no. 26/2000 on Human Rights court ) . Because the prosecution of human rights violations should not be directed only against the state apparatus , but also violations committed not by the state apparatus . Prosecution of human rights violations ranging from investigation , prosecution , and trial of violations should be non - discriminatory and equitable . Human Rights Court is a special court within the context of the general court .
Penaggung responsible for enforcement ( respection ) , advancement ( promotion ) , protection ( protection ) and compliance ( fulfill ) rights .
Promoting responsibility , respect and protection of human rights are not only borne by the state , but also to the individual citizens . This means that countries and individuals alike have a responsibility towards the promotion , respect and protection of human rights . Therefore , not only the actual human rights violations committed by the state to its people , but also by the people to the people of the so-called human rights violations horizontally .
Case Examples of Human Rights Violations
The occurrence of maltreatment in the civil STPDN by senior on the pretext of coaching that led to the death of clips Muntu in 2003 .
Lecturer who lazy to go to class or lazy to explain to a course to students is a violation of human rights to every student light .
The merchants who sell on the sidewalk is a violation of human rights of the pedestrians , thus causing the pedestrians to walk on the side of the road so it is particularly vulnerable to accidents .
Tradisioanal traders who trade on the side of the road is a violation of human rights against lightweight road users so that the users can not enjoy the way the traffic is orderly and smooth .
Parents who impose his will that his entry in a particular department in the college human rights violations against children , so that a child can not choose majors that match their interests and talents .
Background
Rights are normative elements inherent in every human being in its application to the scope of the right of equality and the right of freedom associated with the interaction between individuals or by institutions . The right is also something that must be earned . Human rights issue is something that often talked about and discussed , especially in this era of reform . Upheld human rights more and more attention in the reform era of the pre-reform era . Keep in mind that , in the enjoyment of rights, we do not live alone and we live to socialize with other people . Let us not commit human rights violations against others in the business acquisition or fulfillment in ourselves .
The rule of law is a legal doctrine that began to emerge in the century - 19 ,
simultaneously with the birth of the State Constitution and democracy . Ian was born with the flourishing of democracy in line and increasing the role of parliament in the administration of the State and as a reaction to the absolute state that developed previously . Rule Of Law is a common law concept which is whole aspek.Negara uphold the rule of law and principles of justice egalitarian.Latar dibangundiatas behind the birth of the rule of law begins with the idea of limiting the power of government to the State Facilities selected for this purpose and constitution yaitudemokrasi Formulation juridical conception of the State and democracy konstitusionaladalah hukumDi Indonesia , the core of the rule of law is a guarantee for the people adanyakeadilan . Especially social justice
In order for the discussion of this problem is not too extensive and more focused on issues and objectives in this making of this paper , the authors then to limit the scope of the problem only on " Ham & Rule Of Law " .
a) Definition of Human Rights
In Article 1 of Law Number 39 Year 1999 on Human Rights stated that " human rights are a set of rights attached to nature and human existence as a creature of the Almighty God and is His grace that must be respected , upheld and protected by the state , law , government and every person , for the respect and protection of human dignity " .
Based on the above understanding of human rights , it can be deduced about the nature of human rights some of the main features are:
· Human rights need not be given , purchased or inherited . Human rights are part of human automatically.
· Human rights apply to all people without regard to sex , race , religion , ethnicity , political opinion or social origin and nation .
· Human rights can not be violated . No one has the right to restrict or violate the rights of others . People still have rights even if a state makes laws that do not protect or violate human rights ( Mansour Fakih , 2003) .
b ) Definition of the rule of law
The rule of law is a legal concept that is actually born from a form of protest against an absolute power in a country . In order to limit the absolute power it is necessary restrictions on the powers that rule are arranged so as not to violate the fundamental interests of society , with demikia
. Dalamrangka limiting the absolute power makadiperlukan restrictions on the power , so the power is laid out so as not melanggarkepentingan Rights of the people , by demikianmasyarakat avoid actions against hokumyang carried out by the authorities .
The development of Human Thought
Divided into four generations , namely :
The first generation of human rights argue that the notion that only focused on the field of law and politics . The focus of the first generation of human rights thinking in the field of law and politics and the situation caused by the impact of World War II , totalitarianism and the desire Countries newly independent legal order to create something new .
The second generation of human rights ideas are not only demanding the rights of juridical rights but also social , economic , political and cultural . So the thought of a second -generation human rights shows the expansion of understanding of the concept and scope of human rights . During the second generation , juridical rights received less emphasis so that there is an imbalance in social and cultural rights , economic rights and political rights .
The third generation in response to the second generation of human rights thinking . The third generation of promising the unity between the economic, social , cultural , political , and legal in a basket called to carry out the development rights . In the implementation of the ideas of human rights of third generation also experienced an imbalance where there is an emphasis on economic rights in terms of economic development a top priority , while other rights neglected , causing many casualties , because a lot of other people's rights are violated .
The fourth generation of the highly criticized the dominant role of the state in the development process that focuses on economic development and cause negative effects such as the neglect of the people's welfare aspects . Besides development programs being run not by the needs of the people as a whole but meet the needs of an elite group . The fourth generation of human rights ideas pioneered by countries in the region which in 1983 gave birth to the declaration of human rights is called the Declaration of the Basic Duties of Asian People and Government
Development of thinking stems from the world of human rights :
Magna Charta
In general, experts in Europe believe that the birth of human rights in Europe started with the birth magna Charta , which contains the view that the king had absolute power ( the king who created the law , but he himself is not bound by laws made ) , be restricted power and began to be held accountable before the law ( Mansour Effendi ,
The American declaration
Further development of human rights is characterized by the emergence of the American Declaration of Independence , who was born from familiar Rousseau and Montesquuieu . Begin emphasized that humans are independent from her mother in the stomach , so it is not logical that after the birth he must be shackled .
The French declaration
Subsequently , in 1789 was born the French Declaration ( Declaration of France ) , where the terms on the right are specified as stated in the Rule of Law which, among other sounds there should be no arrest without a valid reason . In that respect the principle of presumption of innocence applies , meaning that the people who were arrested , then detained and charged , entitled declared not guilty , until there is a court decision that is final and binding which found him guilty .
The four freedom
There are four rights of freedom of speech and expression , right to freedom of religion and worship according to the teachings of religious needs, the right to freedom from poverty in the definition of each nation trying to reach the level of a peaceful and prosperous life for its residents , the right to freedom from fear , which include businesses , reduction of armaments , so that none of the nation's desire to be in a position to carry out an attack against another country ( Mansour Effendi , 1994) .
The development of human rights thinking in Indonesia :
Human thought pre-independence period were most prominent in the Indische Partij is right to liberty and the right to equal treatment independence .
Since independence in 1945 until now in Indonesia has 3 Constitution applies in four periods , namely :
The period of August 18, 1945 until December 27, 1949 , 1945 prevail
The period December 27, 1949 until August 17, 1950 , the Constitution of the Republic of Indonesia applicable United
The period of August 17 to July 5, 1959 , 1950 Constitution applies
The period July 5, 1959 to the present , apply Back 1945
Review of Human Rights in Islam
The existence of the doctrine of human rights in Islam shows that Islam as a religion has placed man as honorable and noble creatures . Therefore , protection and respect for human itself is a doctrine demands that must be carried out by his followers against fellow human beings without exception . The rights given by God it is permanent , eternal and immortal , should not be altered or modified ( Abu Ala Almaududi , 1998) . In Islam there are two concepts of rights , namely the right man ( insan al rights ) and the rights of God . Any rights that underlies each other mutually . God underlies human rights and vice versa . In its application , none of the rights that apart from the two rights , such as prayer .
While in the case of al beings as property rights , every human being has the right to manage its assets .
Islamic concept of human life based on a theocentric approach ( theocentries ) or who puts God through the provision of Islamic law as a benchmark of good bad order of human life both as individuals and as citizens or residents of the nation masyarakjat . As such the Islamic concept of human rights rests on the doctrine of monotheism . The concept of monotheism contains the idea of equality and brotherhood of man . The concept of Tawheed also includes the idea of equality and unity of all beings by Harun Nasution and Bahtiar Effendi called perikemakhlukan idea . Islam came inherently carry the doctrine of human rights , Islamic doctrine of human rights can be found in the teachings of Islam that is the primary source of al - Quran and al - Hadith are a source of normative doctrine , there is also a practice of Muslims life .
Judging from the level , there are three forms of human rights in Islam , first , Darury Rights ( basic rights ) . Something considered basic rights when these rights are violated , not only makes the human suffering , but also the dignity of humanity is lost even its existence . For example , if the right to life is violated then it means the person is dead . Second , secondary rights ( hajy ) that the rights which if not met will result in the loss of rights elementary example , a person's right to obtain adequate food and clothing it will result in the loss of the right to life . Third rights tertiary ( tahsiny ) the right of the lower level of primary and secondary rights ( Masdar F. Mas'udi , 2002)
On Human Rights relating to the rights of citizens , Al Maududi explains that in Islam the first and main rights of citizens are :
Protect life , property and dignity they together with the assurance that we are not interfered with this right , except for reasons of legitimate and illegal .
Protection of personal freedom . Privacy can not be violated except after going through the process of convincing evidence is legally and provide the opportunity for the accused to present a defense
Independence to express opinions and beliefs embraced each
Guarantees the fulfillment of basic needs for all citizens without distinction of caste or creed . One of the obligation of zakat to Muslims , one of them to meet the basic needs of citizens .
Human Rights in National Legislation
In Indonesian law there are at least a written legal form which contains rules on human rights . First , the constitution ( Constitution State ) . Second , the provision MPR ( MPR ) . Third , the Act . Fourth , the regulations implementing legislation such as government regulations , presidential decrees and other regulations .
Excess regulation of human rights in the constitution guarantees a very strong because of the changes and or removal of the article in the constitution as the constitutional process in Indonesia has a very heavy and long , including through amendments and referendum , while weakness as stipulated in the constitution only contains rules still such global human rights provisions in the constitution of the Republic of Indonesia which is still global . Meanwhile, when the arrangement of human rights in the form of laws and implementing regulations weakness , the possibility of frequent changes .
Violations of human rights and human rights courts
Human rights violations are all actions by individuals or groups of people, including state officials whether intentional or unintentional, which legally reduce , impede , restrict or revoke rights and a person or group of persons is guaranteed by this Act , and not obtained or will not feared obtaining settlement law ( law no. 26/2000 on Human Rights court ) . While mild forms of human rights violations in addition to the two forms of the gross human rights violations .
The crime of genocide is any act committed with intent to destroy or obliterate all or some groups of nations, races , ethnic groups and religious groups . The crime of genocide carried out by killing members of the group , causing serious bodily or mental harm to members of the group , creating conditions of life that will result in physical extermination whole or in part , imposing measures intended to prevent births within the group , and forcibly transferring children of the group to another group ( Law no. 26/2000 on Human Rights court ) .
While it is a crime against humanity is one of the following acts when committed as part of a widespread or systematic attack he knows that such attacks directly aimed at civilians through murder , extermination , enslavement , expulsion or forcible transfer of population , deprivation of liberty or deprivation of physical liberty in other arbitrarily in violation of ( the principles of ) basic provisions of international law , torture , rape , sexual slavery , forced prostitution or other forms of sexual violence are equal , the persecution of a particular group or association that is based on common political beliefs , race , nationality , ethnicity , culture , religion , gender or other grounds that are universally recognized as impermissible under international law , enforced disappearances , and the crime of apartheid .
Violation of human rights can be done by both the state apparatus and not the state apparatus ( Law no. 26/2000 on Human Rights court ) . Because the prosecution of human rights violations should not be directed only against the state apparatus , but also violations committed not by the state apparatus . Prosecution of human rights violations ranging from investigation , prosecution , and trial of violations should be non - discriminatory and equitable . Human Rights Court is a special court within the context of the general court .
Penaggung responsible for enforcement ( respection ) , advancement ( promotion ) , protection ( protection ) and compliance ( fulfill ) rights .
Promoting responsibility , respect and protection of human rights are not only borne by the state , but also to the individual citizens . This means that countries and individuals alike have a responsibility towards the promotion , respect and protection of human rights . Therefore , not only the actual human rights violations committed by the state to its people , but also by the people to the people of the so-called human rights violations horizontally .
Case Examples of Human Rights Violations
The occurrence of maltreatment in the civil STPDN by senior on the pretext of coaching that led to the death of clips Muntu in 2003 .
Lecturer who lazy to go to class or lazy to explain to a course to students is a violation of human rights to every student light .
The merchants who sell on the sidewalk is a violation of human rights of the pedestrians , thus causing the pedestrians to walk on the side of the road so it is particularly vulnerable to accidents .
Tradisioanal traders who trade on the side of the road is a violation of human rights against lightweight road users so that the users can not enjoy the way the traffic is orderly and smooth .
Parents who impose his will that his entry in a particular department in the college human rights violations against children , so that a child can not choose majors that match their interests and talents .
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