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 .