2013: Towards a human rights-based society, institutions

A new year is an occasion for reflection on moments passed and foreseeing challenges to come. Given the fact that there have been several challenging incidents of violations of human rights during the past year, I believe issues relating to discrimination and pluralism will still linger in the year ahead.

Such a hypothesis stems from the undeniable situation that our society has yet to incline toward a rights-based culture, as a result of the long imposition of obligations by the state through an exclusively security and national-integrity approach.

It is difficult to establish a common understanding of discrimination and pluralism in this particular kind of society.

Nonetheless, I believe in ubi societas ibi ius; if there’s a society there will be laws, hence we can analyze this issue from a normative point of view.

First of all, the 1999 Human Rights Law clearly defines discrimination as restriction, harassment or exclusion, whether directly or indirectly on the basis of religion, race, ethnicity, economic status, sex, language or political belief, which has the effect of nullifying or impairing the recognition, enjoyment or exercise on an equal footing of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

Although, as pointed out by the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), the definition of discrimination under the national human rights law does not include “preference” as an element of discriminative action, the rest of the definition is substantially similar.

Either way, the International Covenant on Civil and Political Rights (ICCPR) also defines discrimination in a similar way, “a state where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights”.

In relation to this, human rights discourse provides three cumulative elements that should be fulfilled in determining whether an action of the state should be considered as a an infringement of human rights: first, an action should be within the area of human rights law application; second, it constitutes an interference in one’s rights; and third, there should be a justification whether the action falls under the term of legitimate limitation or lawful derogation.

Unfortunately a discourse on the three tests is still lacking in the enforcement of our national human rights law.

In most cases dealing with the so-called inherent paradox of human rights, our legal enforcement exclusively applies the law without any consideration of the protection of an individual’s rights.

A rights-based society, following the human rights law’s spirit, would preserve and restore a victim’s rights that had been violated, whilst our current system tells us primarily what we have to do instead of what we may claim.

Moving further, a rights-based society might also result in a more pluralistic way of life.

Pluralism rejects any discriminative acts that might impair the enjoyment of human rights, as once indicated by the Chilean supreme court in the 1997 case of the prohibition of the film “The Last Temptation of Christ”.

The court ruled “[p]luralism does not mean denigrating and destroying the beliefs of others, whether they are of the majority or a minority, but assuming them to be a contribution to the interaction of society, which is based on respect for the essence and context of the ideas of others”. Here we may arrive at an assumption that pluralism is to be regarded as an essence of the interaction of society by which a rights-based society can be measured.

Practically speaking, a rights-based society can be achieved through both human rights normativity and institutions.

As the state has been fostering the enactment of various legal tools to deal with human rights, we should also give our support to the progress of our national human rights action plan (RANHAM) that is currently in its third phase (2011-2014).

Such soft power is considerably more effective in creating a rights-based society as it involves society as a whole and every level of government institution in fulfilling the state’s duty to respect, protect and fulfill human rights.

Henceforth, instead of focusing most of our energy on the hard power of law enforcement, we should also endorse the action plan’s program and strategy in socializing, imparting and integrating human rights values into the society.

All in all, the issues of discrimination and pluralism should be overcome not exclusively through coercive actions by the state but also through more soft and down-to-earth measures.

By doing this, we may arrive at a situation where human rights does not simply remain an idea that can never be achieved.

The writer is research staff at the Human Rights Research and Development Agency, Law and Human Rights Ministry. The opinions expressed are personal.

(2013-01-03/jakartapost)