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Minority Rights and Regionalism in Indonesia Will Constitutional Recognition lead to Disintegration and Discrimination?
Gary F Bell*

I. INTRODUCTION
FROM its independence until recently, Indonesia has been a centralised country where national integration was the main goal. The national rhetoric and propaganda1 was often put on banners as satu nusantara, satu bangsa, satu bahasa, satu Indonesia one archipelago, one people, one language, one Indonesia. The reality might have been the domination of the Javanese in political and national institutions, and resentment might have been growing for years, but the rhetoric was one of integration and equality of all. Recently, with the advent of more democracy and a new openness,2 many recriminations by minorities have come to the fore. By minorities, I mean religious and ethnic minorities either within Indonesia or within one of its regions. Most Indonesians live on the island of Java, which makes a minority of anyone living on another island. At the same time, the island of Java itself is not homogeneous even though the Javanese are in majority, there are significant minorities in Java including the

Assistant Professor, Faculty of Law, National University of Singapore. This paper was written for the Joint Northwest Regional Consortium for Southeast Asian Studies and Canadian Council for Southeast Asian Studies Conference organised by the Centre for Asia-Pacific Initiatives at the University of Victoria, Canada and held at the University of Victoria from 25 to 27 Oct 2001. The paper was also presented at a staff seminar at the Faculty of Law of the National University of Singapore on 24 Oct 2001. I do not use the words rhetoric and propaganda in a pejorative sense. I will use the word rhetoric simply to mean a discourse that tries to persuade and propaganda to mean a state-organised promotion of a concept or idea. For example I find it absolutely normal and even good that the State has a rhetoric and propaganda to promote national unity. The fall of President Soeharto in 1998 opened a new unfinished chapter in Indonesian history. The press is now much freer and the freedom of expression is almost unabated. Indonesia also held democratic elections in 1999. This is a young and quite imperfect democracy but there is now sufficient political space for minority groups to express their grievances and demand redress, and politicians now do feel such pressures and take them into account.

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very numerous Sundanese who are also originally from Java. 3 Almost all ethnic and religious minorities in Indonesia are a majority in some Indonesian regions and therefore stand to gain by a decentralisation of powers to the regions. The most notable exception is the Chinese ethnic group which is in minority everywhere. Many Indonesians from Java and Bali have also established residence on other islands through transmigrasi 4 and there are therefore Javanese, Madurese, Sundanese and Balinese minorities throughout Indonesia. Because of democracy, minority rights are now being addressed, at least theoretically, through changes to the law and constitution. There are now, at least in theory, more constitutional and legal protections for minorities. Many powers of the State have also been transferred to the regions in an effort to curb disintegrating forces. The fear of disintegration forces the state to address minority grievances. The title of this article may sound contradictory. That the recognition of minority rights and regional identities may lead to the disintegration of Indonesia is a common worry, but how could this lead to discrimination? If stopping discrimination is the whole purpose of minority rights and regionalism, how could the constitutional and legal protection of minority rights and of regional identities and powers lead to discrimination? My concern with respect to minority rights leading to discrimination is the prospect of having minorities within minorities or within autonomous regions, eg, the Muslims in Hindu Bali, the non-Javanese in Yogyakarta. This is not a minor concern in Indonesia. Incidents of ethnic or religious tensions and ethnic or religious cleansing are now frequent in Indonesia unfortunately many minorities have been displaced, sometimes after
3 The Javanese is the most numerous of the main four ethnic groups found on the island of Java (the other groups being the Sundanese in the West, the Madurese in the North East close to the island of Madura and the Balinese in the East close to the island of Bali). Of the roughly 220 million Indonesians about 45% (almost a majority) are Javanese and 14% Sundanese. This means that the two ethnic groups whose centre of population is originally in Java form about 60% of the Indonesian population a clear majority. When you add to this the Madurese or Balinese who have lived on Java rather than their close- by islands for centuries in some cases, and the numerous ethnic groups that have more recently congregated in the capital Jakarta, the total population of Java is about two-third of that of Indonesia. See online: Infoplease.com http:// www.infoplease.com/ce6/world/A0859005.html, (date accessed: 13 Dec 2001). The ethnic Javanese are clearly the dominant political group in Indonesia. The expression Javanese can be confusing at times. Non-Javanese residents of Java often do not appreciate being described as Javanese, but sometimes people, especially foreigners, describe all residents of Java as Javanese. Transmigrasi is the movement of Indonesians from the overpopulated islands of Java, Bali and Madura to other, less densely populated islands. Transmigrasi has been an active policy of the Indonesia which has a ministry of transmigrasi.

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murderous attacks, and in many regions, members of certain ethnic groups live in constant fear. The situation in Ambon for example can be describe as one of open civil war. Because of the past policy of transmigrasi, there are ethnic minorities all over Indonesia. Will the recognition of autonomous regions lead to discrimination against minorities in these regions? In this short article I propose to look at the Indonesian Constitution from the point of view of minorities in Indonesia. Before I do, I will examine the role of constitutions from the point of view of comparative law to show that unenforceable constitutions are not unheard of and can be useful. Then I will look at the Indonesian Constitution as it stood before its amendment. I will then define individual rights and collective rights (exercised individually or collectively) before finally considering examples of these rights in the second amendments to the Constitution.

II. THE ROLE OF UNENFORCEABLE CONSTITUTIONS

A. UUD45 is Unenforceable in Courts of Law When I say I do research on Indonesian law, I am often asked, Is there such a thing? We all know that law in Indonesia, if enforced at all, is not enforced consistently. There are courts and prosecutors in place to enforce the law, but the limits of these judicial institutions are well known allegations of incompetence and corruption are frequent. 5 When it comes to constitutional law, however, the situation seems even worse the courts do not even have jurisdiction, not even in theory, to hear any constitutional claims. The problem is not that courts fail to enforce the Constitution because of inefficiency, incompetence or corruption. Rather, the problem is that no court has jurisdiction to enforce constitutional law. There is no constitutional court in Indonesia and the general courts, including the Makamah Agung [MA] or Supreme Court, lack constitutional jurisdiction. One could therefore say that constitutional law is unenforceable in Indonesia. There may be an exception to this. The MA had refused to answer questions addressed to it by former President Wahid about the constitutionality of the MPRs 6 so-called impeachment process [GFB2]due to its lack of jurisdiction on constitutional issues. However when President Wahid issued a decree freezing Parliament and Golkar,

5 6

The author has no doubt that some judges and prosecutors are honest and competent, but here describes the general perception of the Indonesian public. Majelis Permusyawaratan Rakyat, the upper House of Parliament.

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the MA suddenly granted itself a newly found jurisdiction on constitutional matters and issued a fatwa or advisory opinion declaring his decree unconstitutional (which it no doubt was).7 It is a very unusual move on the part of any court to issue such a decree ex parte, without the benefit of full argument. It seems to contradict the courts earlier position to the effect that it had no constitutional jurisdiction and thus the fatwa seems politically motivated. In fact, there appears to be no constitutional basis to justify the issuance of such a fatwa. Although the fatwa says nothing to that effect, Chief Justice Bagir later claimed that the fatwa was not mandatory and not legally binding and that it was issued under a law allowing for advisory opinion (UU 14/1985).8 This fatwa was issued in the most peculiar of contexts and should in my view be considered an exception rather than the rule. In any event even the Chief Justice admitted that the opinion of the court was not binding. Therefore constitutional law remains unenforceable in Indonesia. What many do not realise is that when it comes to constitutions, unenforceability is not that uncommon outside the common law tradition. Some comparative law may here prove useful. B. The Common Law Tradition: A Need for Enforceability To those of us who come from the Anglo-American legal tradition the common law tradition an unenforceable constitution almost means there is no constitutional law. The common law tradition sees little place or role for unenforceable laws. In fact, that tradition has long focused on the availability of remedies rather than on legal theory. This has led it to define the law mainly as positive enforceable law.

The fatwa came in the form of an official letter (surat resmi) dated 23 Jul 2001 and bearing reference number: No KS02/3709.A/DPR-RI 2001, online Indoregulation <http://www.indoregulation.com/indoregulation/viewnews.html?rubrik=670> (date accessed: 9 Dec 2001). Bagir argued that it was not mandatory and that the fatwa, the term widely used for the Courts legal opinion, is not legally binding. After receiving a letter from the House, we gathered Supreme Court justices to give our legal opinion on the situation, he told journalists after attending the Special Sessions plenary meeting in the morning. The Supreme Court under Law No 14/1985 may provide a legal opinion to the government or other high institutions in the country. Jakarta Post, 24 Jul 2001, online: Dow Jones Interactive and Nexis. [Note: this latter paragraph is quoted from the newspaper, and is not a direct quote of what Bagir has said. The only quote from Bagir is from the preceding paragraph].

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The common law was elaborated by courts that have wide powers of enforcement (including contempt of court, injunctions etc ). When transferred to constitutional law and to the American continent, this led to a very strongly court-enforced US Constitution. Nothing in the US Constitution explicitly granted the Supreme Court the power to enforce the Constitution by declaring invalid the laws that contravene the Constitution. 9 It seemed however self-evident to the Court that since the Constitution was the supreme law, it had to be enforced and that unconstitutional Acts of Congress should be declared invalid by the regular courts. In the Anglo-American tradition, that is what courts do they enforce the law, the whole law, including Constitutional law and if there is no law, they might even make it up (the common law is judge-made law). Therefore in the 1803 case of Marbury v Madison10 the US Supreme Court held, for the first time, that a federal statute was invalid because in enacting it, Congress had exceeded the powers granted to it by the Constitution. This American approach to constitutional law is prevalent in almost all common-law countries that have a Constitution. For example, the Canadian Constitution for a long while was enforceable by the courts by virtue of the Colonial Law Validity Act 186511 of the United Kingdom since the Canadian Parliament and the provinces were granted powers by the United Kingdom, if they exceeded their powers, their Acts were invalid. At first, Canadian constitutional law was basically a kind of administrative law based on a limited delegation of powers by the UK. This entitled the courts to declare laws to be invalid because ultras vires (beyond the powers granted) and to declare government actions to be unconstitutional. In 1982 Canada became constitutionally independent and therefore the Colonial Law Validity Act 1865 no longer applied. It was replaced by section 52 of the Constitutional Act 1982,

10 11

S 2 of Art III of the US Constitution did state that the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; but that fell short of saying that the Court could declare invalid laws adopted by Congress. 5 US (1 Cranch) 137 (1803). See s 2 of the Colonial Laws Validity Act 1865, (1865) 28 & 29 Vict, c 63 (UK): Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of Such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative. The Canadian Constitution was made up mainly of Acts of the British Parliament.

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which provides for the invalidity of laws inconsistent with the Constitution. 12 Similar principles of constitutional law can be found in almost all former British Colonies, including India and Malaysia. The reaction of common law lawyers to the situation in Indonesia is therefore predictable. Since the Constitution is not enforceable by any court, it is therefore not really law. In a sense they might associate the state of constitutional law in Indonesia with the state of the Rule of Law there is effectively no or little Rule of Law and no or little constitutional law in Indonesia. Their view is that one cannot have the Rule of Law without a Constitution that is fully enforceable and enforced by courts. Faced with a Constitution that is unenforceable by any court they tend to think that there is effectively no constitutional law in Indonesia. C. The Civil Law Tradition: Constitutions May be Unenforceable by Courts Here is where comparative law becomes useful in some civil law jurisdictions, such as France, the Constitution was for a long time not judicially or otherwise independently enforceable and is still to this day not fully enforceable, and if enforced, it is not enforced by regular courts of law. Therefore, the fact that the Indonesian Constitution is not enforceable does not necessarily mean that Indonesia is a pariah State when it comes to constitutional law. At the outset, let me state that I am of the view that it is preferable to have a Constitution that is somehow enforceable by independent organs of the State (such as courts, tribunals or councils). However, to assume that it is impossible to have a stable society and the Rule of Law or as the French and Indonesians would call it un tat de droit Negara Hukum without a fully enforceable constitution goes against the experience of many States, including France. In France once a law is adopted, its validity can never be contested no matter how clearly unconstitutional the law is. The courts of law have essentially no constitutional jurisdiction (except for the review of search and seizures in the criminal process) and cannot review the constitutionality of laws or of government actions. Since 1958, there is in France a Constitutional Council (Conseil constitutionnel) which may review bills before they become laws, but it may do so only at

12

See s 52(1) of the Constitution Act, 1982 being Schedule B of to the Canada Act 1982, (UK) 1982, c 11: The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

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the request of politicians, not of ordinary citizens.13 Once a bill passes through Parliament, the Council has no jurisdiction. The Declaration Of The Rights Of Man And The Citizen which is indirectly included in the French Constitution through a mention in its preamble cannot be invoked by citizens whose individual rights are violated. Notwithstanding this, no one would dare say that France does not respect the Rule of Law or that France has no constitution or no constitutional law. Unenforceable constitutions can be significant political and legal symbols. D. Unenforceable Constitutions are not Necessarily Useless One of the basic assumptions of this paper is that Constitutions that are unenforceable by courts are not necessarily useless and are therefore worthy of academic analysis and of course here I do not use the term academic in the sense of useless! One of the issues that may legitimately be raised however is whether such constitutions are worthy of a jurists attention or whether they should be left to the analysis of political scientists. One should note that in France many faculties are of Law and Political Sciences and that the separation between law and political sciences is not always clear. Constitutions, even legally enforceable ones, are legitimately the object of political science studies, and reciprocally one would expect that even unenforceable constitutions could be the object of legal studies. Civil-law lawyers are particularly fond of studying unenforceable laws. The teaching of law in continental universities started with the teaching of Roman law, a law that at the time was purely theoretical and did not apply anywhere. Private law lawyers in the civil law tradition have whole theories about natural and moral obligations that are unenforceable but nonetheless are the object of legal studies. International law is also the object of legal studies even though more often that not it is unenforceable in fact and sometimes even in law. The contribution of a jurist to the study of unenforceable constitutions is not necessarily political. The jurist can apply legal analysis to try to see what the effects of the Constitution would be if it were to be enforced by courts. It may also contribute to the legal rhetoric that accompanies claims of constitutionality made by those who invoke

13

For an overview of French constitutional law in English see: J Bell, French Constitutional Law (Oxford: Clarendon Press; New York: Oxford University Press, 1992).

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the constitution. Finally, and it is the main object of this paper, the jurist can look at the symbolic and educational (or propaganda) value of the Constitution. In this paper I will try to see whether the protection of minorities in the Constitution and its first two amendments tell us something about the nature of the new Indonesian State and its goals. It will come as no surprise that I will show that the Indonesian Constitution (the Undang-undang Dasar 1945 hereinafter UUD45) before its amendment was a symbol of national unity and integration and that it had little place for the recognition of minority rights. The Second Amendments to the UUD45 has led to another model for the Indonesian State, one that symbolically is prepared to recognise more diversity while still promoting unity.

III. THE UUD45 AS A SYMBOL OF UNITY

The Indonesian Constitution of 1945 is a short instrument but is clearly an instrument of unity. Its first article proclaims: the State of Indonesia shall be a unitary state in the form of a Republic.14 The original article 18 does mention the creation of regions but regions are not given specific constitutionally-guaranteed protections. 15 The constitution also provides for a national flag 16 and much more importantly for a national language 17 that has been one of the main tools of integration in Indonesia. This is particularly true when the national language is linked to the Central Governments right to run a national education system 18 and to promote the national culture. 19

14 15

16 17 18

19

UUD45, art 1(1): Negara Indonesia ialah Negara Kesatuan yang berbentuk Republik. UUD45 art 18 (as it then read): The division of Indonesia into large and small regions and the structures for their governance shall be prescribe by law having regard for, and keeping in mind the principle of deliberation in the government system of the State and the traditional rights in regions which have a special character. Pembagian Daerah Indonesia atas Daerah besar dan kecil, dengan bentuk susunan pemerintahannya ditetapkan dengan Undang-undang dengan memandang dan mengingat dasar permusyawaratan dalam sistem Pemerintahan Negara, dan hak-hak asal-usul dalam Daerah-daerah yang besifat Istimewa. UUD45, art 35: The national flag of Indonesia shall be the red-and-white. Bendera Negara Indonesia ialah Sang Merah Putih. UUD45, art 36: The national language of Indonesia shall be the Indonesian language. Bahasa egara Indonesia ialah Bahasa Indonesia. UUD45, art 31(2): The government shall establish and conduct a national educational system which shall be regulated by law. Pemerintah mengusahakan dan menyelenggarakan satu sistem pengajaran nasional, yang diatur dengan Undang-undang. UUD45 art 32: The government shall advance the national culture. Pemerintah memajukan kebudayaan nasional Indonesia.

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Citizens also have some individual rights but in some way, as we will see in more detail below,20 these rights can also reinforce the unity of the State. This is for example the case with the equality right all citizens will be treated the same because of their belonging to a unitary state one people, one language, one Indonesia. In a sense, freedom from discrimination is a symbol of unity: we are all the same, we are one people. Therefore all citizens have equal status in law and in government (pemerintahan) and shall respect (menjunjung) the law and the government without any exception.21 Equality is in a sense a minority right it is rare that members of majority groups are discriminated against (with the notable exception of women who are often part of a discriminated majority). In the same vein, even though the Republic of Indonesia is based on the belief in the One and Only God, 22 freedom of religion is protected 23 and Islam, the religion of the majority has no special constitutional status. 24 The secular nature of the State can be seen again as an effort at unity: there is no minority religion in law if there is no recognition of the majority religion by the law. Religion becomes an individual matter and all Indonesians individuals are treated equally. One could therefore say that the way the constitution mentions religious freedom without mentioning Islam is meant to afford constitutional protection to religious minorities. 25 Some other basic human rights are mentioned in the UUD45, in the form of both individual liberties (right to work and live in human

20 21

22

23

24 25

See discussion under New Rights for a New Indonesia? Individual non-collective rights below at p 12 and following. UUD45 art 27(1): Segala Warganegara bersamaan kedudukannya di dalam Hukum dan Pemerintahan dan wajib menjunjung Hukum dan Pemerintahan itu dengan tidak ada kecualinya. UUD45, art 29(1): The State shall be based upon the belief in the One and Only Go. Negara berdasar atas Ke Tuhanan Yang Maha Esa. See also the preamble which states that one of the Pancasila principles is the belief in the One and Only God. Tuhanan Yang Maha Esa. U U D 4 5 , a r t 2 9 ( 2 ) : T h e S t a t e g u a r a n t e e s a l l p e r s o n s t h e f r e e d o m of worship, each according to his/her own religion or belief. Negara menjamin kemerdekaan tiap-tiap penduduk untuk memeluk agamanya masing-masing d a n untuk beribadat menurut agamanya dan kepercayaannya itu. This is due to the rejection of the so-called Jakarta Charter which would have required Muslim to follow Syariah law. I fail to mention here the difficult case of atheists and agnostics in Indonesia where everyone must have a religion. Communism, in small part because of its atheism, was and remains effectively banned. Atheism was not a recognised option in Indonesia and in fact effectively remains so to this day.

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dignity 26 and freedom of association, assembly and expression to be prescribed by law) 27 and as rights of claim against the State (right to education 28 and right of the poor to be supported by the State). 29 These rights however were not part of the main rhetoric of the State and were not mentioned often. The only one of these rights that may have some relevance to minorities is the freedom of association, which would allow minorities to form their own associations. Other minority rights, such as self-determination in local matters and the preservation of local cultures, are not provided in the UUD45.

IV. THE SECOND AMENDMENTS TO THE UUD45: A NEW MODEL FOR INDONESIA?
On 18 August 2001, the MPR adopted the Second Amendment to the UUD45 which contains many provisions on human rights.30 I will look mainly at its provisions on minority rights but first let me distinguish between two kinds of minority rights. A. Individual Rights v Collective Rights (Exercised Individually or Collectively) For liberal democrats and human rights advocates from a common law background, the concept of collective rights is often a frightening one. The fear seems to be that so-called collective rights are just an excuse for denying individual rights. One Canadian author talks of an outright hostility of some Canadian judges and commentators to the collective rights concept. 31

26

27

28 29 30 31

UUD45 art 27(2): Every citizen has the right to work and to live in human dignity. Tiap-tiap Warganegara berhak atas pekerjaan dan penghidupan yang layak bagi kemanusiaan. UUD45 art 28: Freedom of association and assembly, of verbal and written expression and the like, shall be prescribed by law. Kemerdekaan berserikat dan berkumpul, mengeluarkan pikiran dengan lisan dan tulisan dan sebagainya ditetapkan dengan Undang-undang. UUD45, art 31(1) Every citizen has the right to education. Tiap-tiap Warganegara berhak mendapatkan pengajaran. UUD45, art 34: Destitute children and the poor shall be cared for by the State. Fakir miskin dan anak-anak yang terlantar dipelihara oleh Negara. The Majelis Permusyawaratan Rakyat, the upper House of Parliament has the authority to amend the UUD45 under s 37. J Magnet, Collective Rights, Cultural Autonomy and the Canadian State, (1986) 32 RD McGill 170 at 184.

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I am however of the view that some protection of collective rights is generally a good idea and is absolutely essential to the survival of Indonesia as a united country. To understand collective rights as human rights a useful starting point is the premise that individuals can only find fulfilment by being members of a social group. 32 Some countries such as the United States and France take a more purely liberal and individualistic view of human rights. They emphasize integration (one language, one culture really, except for folks songs and a few recipes), equal treatment and rights (non-discrimination) and the secular character of the State (separation of State and Church). This view however cannot account for many other, often Western, countries that recognize cultural, religious and ethnic diversity in their constitution. Canada for example is such a country. The traditional liberal individualistic approach was never successful in rallying French Canadians and First Nations (aboriginal peoples), the minorities that had their own sustainable cultures and often their own territorial claims. George Grant explained the failure of former Prime Minister Diefenbakers brand of Canadian nationalism as follows:
There was one aspect of Diefenbakers nationalism that was repugnant to thoughtful French Canadians, however attractive to English-speaking Liberals and New Canadians. He appealed to one united Canada, in which individuals would have equal rights irrespective of race and religion; there would be no first- and second-class citizens. As far as the civil rights of individuals are concerned, this is obviously an acceptable doctrine. Nevertheless, the rights of the individual do not encompass the rights of nations, liberal doctrine to the contrary. The French Canadians had entered Confederation not to protect the rights of the individual but the rights of a nation. [...] This failure to recognize the rights of French Canadians, qua community, was inconsistent with the roots of Canadian nationalism. One distinction between Canada and the United States has been the belief that Canada was predicated on the rights of nations as well as the rights of individuals.33

In a diverse country that has separate, self-sustainable cultures, identities and languages, the recognition of collective rights is sometimes necessary to preserve national unity. The concept of collective rights explains rights that citizens have only if they belong to a constitutionally defined group. For example,

32 33

Magnet, ibid, at 176. G Grant, Lament for a Nation: The Defeat of Canadian Nationalism (Toronto/ Montral: McClelland and Stewart, 1965) at 21-22.

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in the Canadian context, the right to public education in English in Quebec or in French in English-majority provinces is granted only to those who belong to predefined linguistic minorities.34 Aboriginal rights are granted to aboriginal peoples or individual aborigines according to a statutory definition of Indian under the Indian Act.35 In fact, up to a third of the provisions of the Canadian Charter of Rights and Freedoms are concerned with collective rights. 36 I need however to make a distinction between collective rights that are exercised individually and those which are exercised collectively. Collective rights are those that are granted to a group of people or to individual who are part of a group.37 There are therefore two kinds of collective rights those conferred on individuals because they belong to a community and those that the law grants to a group as a group.
Collective or group rights, [...], are asserted by individuals or groups of individuals because of their membership in the protected group. Individual rights are asserted equally by every one despite membership in certain ascertainable groups. 38

Because collective rights are usually granted to minorities for their protection, I will also refer to them as minority rights. I will divide collective rights into two categories for the purpose of this paper minority rights that are exercised individually and minority rights that are exercised collectively, both of which are to be contrasted with individual rights.

34

35 36 37

38

Parents have the right to send their children to minority language schools in Quebec if they have received their primary school instruction in Canada in English. In other provinces if the first language the parents learned and still understand is French, wherever they may have learned it in the world, they may send their children to minority language schools. See ss 23 and 59 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11. See ss 6 and 7 of the Indian Act, CSC I-5. Magnet, supra note 32, at 173. Au plan juridique, les droits collectifs sont ceux que lon reconnat un groupe dindividus ou des individus faisant partie de ce groupe. A Bran, Les droits linguistiques, in M Bastarache, ed, Les droits linguistiques au Canada (Montral: Yvon Blais, 1986) at 26. Translation: Juridically, collective rights are those that are recognised as belonging to a group of individuals or to individuals who are part of a group. Reference Re an Act to Amend the Education Act (1986), 53 OR (2d) 513 la p 566 (CA). [Underlining in the original].

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(i) Minority rights that are exercised individually Minority rights that are exercised individually are those conferred on an individual because he belongs to a specific group or community. These rights are exercised by individuals but they are collective in that the individuals have these rights because they belong to a group or community. An example would be the right to minority language education or aboriginal rights in Canada. Only members of a legally defined minority group have these rights. (ii) Minority rights that are exercised collectively Minority rights that are exercise collectively are akin to powers granted to a particular minority group. To take a neutral example (ie, non-Indonesian), in Canada, parents belonging to a minority-language group can not only get minority-language education for their children, but are entitled to separate schools which they can manage where numbers justify this. 39 This right is conferred upon the community collectively: there must be sufficient numbers to justify the creation of separate schools and no one parent can claim the right to manage the school alone. Another example of a collective right conferred to a group would be the workers legal right to strike. Powers of government that are delegated to a group (aborigines) or a region (provinces) are also in some way collective rights of that group or region. (iii) Individual (non-collective) rights The rights that are not collective are individual rights. These correspond to the liberal individualistic view of human rights. Some of these rights are particularly important to minorities (protection against discrimination for example), but they are not minority rights as they are granted to all and can be used by member of majority groups. I will start my discussion with these rights and then move on to minority (collective) right exercised individually and then finally to minority (collective) rights exercised collectively.

39

See s 23(3)(b), Canadian Charter of Rights and Freedoms, supra note 35, which has been interpreted as including a right to administer the schools.

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B. New Rights for a New Indonesia? I will now specifically at minority rights in the Second Amendment. (i) Individual (non-collective) rights Individual rights in the constitutional context are often perceived as rights that protect the individual against the State and therefore one would think these rights might potentially undermine the State rather than strengthen its unity. It is however possible for the constitutional protection of individual rights to symbolically unify a nation thus making its citizens proud of belonging to the nation. Such is for example the role played by freedom of speech in the United States of America it defines the nation. Americans are proud of belonging to a nation that constitutionally protects freedom of speech and that constitutional protection is a source of unity and pride in the United States. Equality, including the prohibition of discrimination, is another such example of a constitutional protection that unites the American nation. The Civil War led to the abolition of slavery and the Civil Rights Movement in the late fifties and early sixties tried to implement that promise and brought more equality between the races. Most Americans would however be surprised to learn that many aspects of what they perceive as a constitutional right of equality are in fact not protected by the Constitution. The Equal Rights Amendments was never adopted and other than a vague provision on equal protections of the laws,40 and specific provisions prohibiting slavery41 and the denial of the right to vote, 42 there is no general provision against discrimination in the American Constitution. Protection is however available through legislation. Equality in the United States is for the most part what I would refer to as a constitutional value rather than a constitutional right.

40 41 42

14th Amendment, US Constitution. 13th Amendment, US Constitution. S 1, 15th Amendment, US Constitution: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. See also s 1 of the 19th Amendment: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex. See also s 1 of the 24th Amendment: The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or any other tax.

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The same is true of the French Constitution. The 1958 Constitution of the Fifth Republic does refer to the Declaration of the Rights of Man and the Citizen but, as mentioned above, this document is not directly enforceable in France and there is therefore almost no e n f o r c e m e n t of human rights under French constitutional law. 43 Nevertheless the French consider equality and freedom of expression to be the cornerstones of their polity and these define what it is to be French. The Second Amendment of the UUD45 brought in a series of human rights protections. The promises of democracy and reform led to the adoption of this comprehensive Bill of Rights. Adding such protections in the Constitution looks good politically and it is done at little cost (the political costs comes with implementation, not adoption). The fact that these constitutional rights are not enforceable does not however diminish their symbolic value and their potential to create pride and unity. Most of the human rights added to the constitution by the Second Amendment are not specific minority protection provisions. They are nonetheless significant to minorities in that a society that guaranties individual rights is more likely to see minorities simply as equal individuals. Amongst the individual rights now protected we find the right to life,44 the right to information, 45 right not to be submitted to torture and the right to seek asylum, 46 the right to social security 47 and the right to own property. 48 Some individual rights are of particular interest to minorities. The right to equality before the law as formulated in UUD45 remains49 but is enhanced by an additional provision to the same effect 50 and an anti-discrimination provision which states that every person shall have the right to be free from discriminative treatment based upon any grounds whatsoever and shall have the right to protection from such

43 44 45 46 47 48 49 50

There is now enforcement of human rights under the European Convention on Human Rights to which France is a party. Art 28A as amended. Art 28F as amended. Art 28G(2) as amended. Art 28H(3) as amended. Art 28H(4) as amended. Art 27(1) remains unchanged. Art 28D(1) as amended: Every person shall have the right to recognition, guarantees, protection and certainty before a just law, and to equal treatment before the law. Setiap orang berhak atas pengakuan, jaminan, perlindungan, dan kepastian hukum yang adil serta perlakuan yang sama di hadapan hukum.

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discriminative treatment. 51 This article is likely to be of help mainly to minorities. The provision on freedom of religion is not amended but a provision is added that states every person shall be free to embrace and to practice the religion of his/her choice. 52 Also added is freedom of conscience and belief: every person shall have the right to the freedom to hold beliefs (kepercayaan), and to express his/her views and thoughts, in accordance with his/her conscience. 53 This seems to protect not only freedom of religion but also freedom to practice or not to practice a religion. Very importantly in my opinion, is the right to choose a residence anywhere in Indonesia, the right to leave it and to go back to it.54 This should protect minorities in newly autonomous regions. Finally the right of association may be relevant to minority groups. 55 (ii) Individually Exercised Minority Rights More significantly for our purposes the second amendment confers two significant minority rights that are exercised individually but that are collective in nature. An article seems to authorise affirmative action: every person shall have the right to receive facilitation and special treatment to have the same opportunity and benefit in order to achieve equality and fairness. 56 This article makes sense only if disadvantaged groups are helped and therefore its protection is granted only to members of such groups. Another provision protects cultural identities: The cultural identities and rights of traditional communities shall be respected in accordance

51

52 53 54

55 56

Art 28I(2) as amended: Setiap orang berhak bebas dari perlakuan yang bersifat diskriminatif atas dasar apa pun dan berhak mendapatkan perlindungan terhadap perlakuan yang bersifat diskriminatif itu. Art 28E(1) as amended: Setiap orang bebas memeluk agama dan beribadat menurut agamanya Art 28E(2) as amended: Setiap orang berhak atas kebebasan meyakini kepercayaan, menyatakan pikiran dan sikap, sesuai dengan hati nuraninya. Art 28E(1) as amended: Every person shall be free ... to choose ones place of residence within the state territory, to leave it and to subsequently return to it. Setiap orang bebas ... memilih tempat tinggal di wilayah negara dan meninggalkannya, serta berhak kembali. Art 28E(3) as amended. Art 28H(2) as amended: Setiap orang berhak mendapat kemudahan dan perlakuan khusus untuk memperoleh kesempatan dan manfaat yang sama guna mencapai persamaan dan keadilan.

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with the development of times and civilisations. 57 Although this right is clearly collective, it is not clear in my opinion what that implies. What does it means to respect the cultural identity of a traditional community? This provision follows one protecting individuals from any discrimination. 58 I submit that the provision therefore speaks in part to a recognition of an individuals identity. Individuals will have to claim the right to see their culture respected (individually exercised right) but could it also means that traditional institutions (those e n f o r c i n g adat 59 for example) are protected and can exercise their traditional powers (collectively exercised right)? This is not entirely clear from article 28I(3) but as we shall see below, a wide recognition of the powers of traditional societies will be recognised by article 18B(2). (iii) Collectively Exercised Minority Rights (Powers) Decentralisation60 The motivations behind the recent decentralisation of powers to the regions were political and economical. It is trite to say that Soeharto held Indonesia together with an iron fist and that, in this democratic transition, ethnic, religious, political and economic tensions have surfaced. From a political science point of view, the exceptionally high degree of centralisation of power in Indonesia is unusual, or at least surprising, given its diverse nature and the way the country is spread out. Therefore, many politicians, especially in the regions, thought that some degree of autonomy should be granted to the regions. 61 In fact, it seemed at the time that, unless some degree of autonomy was indeed granted, the independence movements of Aceh and Irian Jaya would go unabated. These two regions have been promised separate

57 58 59 60

61

Art 28I(3) as amended: Identitas budaya dan hak masyarakat tradisional dihormati selaras dengan perkembangan zaman dan peradaban. Art 28I(2) as amended, see supra note 52. Adat, also referred to as adat law (hukum adat, adatrecht) is the collective word used to describe the many different customary laws indigenous to Indonesia. Some passages from this part are adapted from an earlier article published as Gary F Bell, The New Indonesian Laws Relating to Regional Autonomy: Good Intentions, Confusing Laws, (2001) 2 Asian-Pac Law & Poly J 291, <http:// www.hawaii.edu/aplpj/pdfs/v2-01-Bell.pdf>. See, eg, Keith B Richburg, Will Indonesia Be Balkanized?, Wash. Post, 4 Jun 1998, online: Lexis, News; Kafil Yamin, Autonomy demands add to Habibies headaches, Asia Times, 8 Jan 1999, <http://www.atimes.com/indo/ AA08Dd06.html> (accessed on 17 Nov 2000).

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autonomy plans, 62 (the new law for Aceh was recently proclaimed). 63 A complete autonomy plan had been offered to, but rejected by East Timor.64 In addition to Aceh and Irian Jaya, some other resource-rich regions, such as Riau, were complaining that they were not getting their fair share of the revenues from the exploitation of their natural resources. One of their recurring recriminations against the New Order Government 65 was that all the revenues from their resources ended up in Java with no benefit to them. 66 It was therefore important to show that the new Indonesia would be fairer in its distribution of wealth.67 This explains the adoption of the Fiscal Balance Law 68 with its promise of a new distribution of revenues. In this context, on 18 August 2000, the MPR adopted a constitutional amendment on regional autonomy, which replaces Article 18 by three new articles (18, 18A and 18B). The amendment constitutionalises a widespread decentralisation. The most relevant article is the new Article 18 which constitutionalises the basic structure of regional

62

63

64

65

66 67

68

These two provinces were meant to be granted special autonomy since the very beginning in 1999. In fact the newly amended constitution provides that [t]he country recognises and respects some individual regional administrations that possess a special or extraordinary character, which is regulated by law (Negara mengakui dan menghormati satuan-satuan pemerintahan daerah yang bersifat khusus atau bersifat istimewa yang diatur dengan undang-undang). See UUD45, art 18B. In fact recently a new autonomy law was adopted for Aceh. The special autonomy law for Aceh was proclaimed by President Megawati on 15 Aug 2001, see Derwin Pereira, Mega offers Aceh more autonomy, The Straits Times (Singapore), 16 Aug 2001, online: Dow Jones Interactive. The adoption of the Regional Autonomy Law on 7 May1999 took place just before the Timor debacle that was triggered by a vote for independence on 30 Aug 1999. East Timors proposed autonomy was not to be governed by the Regional Autonomy Law but by a separate law. See Undang-Undang No 22, Th 1999 Tentang Pemerintah Daerah [Law Number 22, Year 1999 on Regional Governments] (7 May 1999) [hereinafter Regional Autonomy Law] art 118. For those unfamiliar with Indonesian politics, Orde Baru (New Order) refers to the Soeharto regime. Indonesia Baru (New Indonesia) seemed to have become the most commonly used expression to describe the post-Soeharto era. See Richburg, supra note 62; Yamin, supra note 62. For resource-rich regions, however, fairness of distribution of resources is not the goal of the autonomy movement. These regions would rather keep the revenues of the region within the region, whether or not that is fair to the other regions. Undang-Undang No 25, Th 1999 tentang Perimbangan Keuangan Antara Pemerintah Pusat dan Daerah [Law Number 25, Year 1999 on Fiscal Balance between the Central Government and the Regions] (19 May 1999) [hereinafter Fiscal Balance Law].

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governments, 69 the principle of regional autonomy 70 and the principle that regional assemblies and regional leaders should be democratically elected.71 It also constitutionalises the fact that residual powers (powers not specifically attributed to the central government by the regional autonomy law) are with the regional governments, 72 which can adopt regulations in these fields. 73 The recent laws and the constitutional amendment on regional autonomy are not the first attempts at organising and financing local governments; many other laws have been in place before them.74 What is new in these recent enactments is that these local governments would be more democratic and independent from the centre, and the fact that they have been promised much broader powers and financial resources.

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Art 18(1) as amended: The unitary State of Indonesia is divided into provinces and these provinces into regencies and cities and each and every of these provinces, regencies and cities form a regional government in accordance with the law. Negara Kesatuan Republik Indonesia dibagi atas daerah-daerah provinsi dan daerah provinsi itu dibagi atas kabupaten dan kota, yang tiap-tiap provinsi, kabupaten dan kota itu mempunyai pemerintahan daerah, yang diatur dengan undang-undang. Art 18(2) as amended: The provincial, regency and city regional governments regulate and manage on their own governmental affairs according to the principles of autonomy and the duty to provide assistance. Pemerintahan Daerah provinsi, daerah kabupaten, dan kota mengatur dan mengurus sendiri urusan pemerintahan menurut asas otonomi dan tugas pembantuan. Art 18(3) as amended: The provincial, regency and city regional governments have a Regional Peoples Representative Assembly the members of which are elected through general elections. Pemerintahan daerah provinsi, daerah kabupaten, dan kota memiliki Dewan Perwakilan Rakyat Daerah yang anggotaanggotanya dipilih melalui pemilihan umum. See also art18(4) as amended: T h e governor, Regent and Mayor, respectively as head of the provincial, regency and city regional governments are elected democratically. Gubernur, Bupati, dan Walikota masing-masing sebagai kepala pemerintah daerah provinsi, kabupaten, dan kota dipilih secara demokratis. Art 18(5) as amended: Regional administrations can put in effect the broadest autonomy, except in governmental matters that by virtue of the law are defined as matters for the Central Government. Pemerintahan daerah menjalankan otonomi seluas-luasnya, kecuali urusan pemerintahan yang oleh undang-undang ditentukan sebagai urusan Pemerintah Pusat. Art 18(6) as amended: Regional governments may adopt regional regulations and other regulations to implement autonomy and the duty to provide assistance. Pemerintahan daerah berhak menetapkan peraturan daerah dan peraturanperaturan lain untuk melaksanakan otonomi dan tugas pembantuan. See, eg, Undang-undang No 5, Th 1974 tentang Pokok-pokok Pemerintahan Di Daerah [Law Number 5 of 1974 on the Fundamentals of Governance in the Regions]; Undang-undang No 5, Th 1979 tentang Pemerintahan Desa [Law Number 5 of 1979 on the Governance of Villages].

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How are these powers collective rights? They would be if they were granting to specific identifiable groups some powers used for their survival and betterment as a group. This is clearly the case for special regions as the state shall acknowledge and respect units of regional authorities that are special and distinct, which shall be regulated by law.75 This is exemplified in the case of Aceh, special status of which was recognised by a special law recently proclaimed. With respect to other regions I think it is also the case that regional powers can often be read as collective rights. The problem is that the delegation is artificially done at the kabupaten level rather than at the provincial level. Fearful of separatism by, for example, the ethnically and culturally homogeneous province of Bali, the bulk of powers were not delegated to provinces (of which there are about 30) but to the kabupaten or regencies (about 360 of them) which are smaller administrative units that are often not natural communities. There was no real effort to delegate powers to a level that corresponded to actual real communities the powers were simply delegated to the existing kabupaten. On the other hand, however, new provinces and kabupaten have been created based on ethnic lines thus confirming that in some way, regionalisation attempts to give power to specific communities. 76 The legislative message is therefore unclear. There was a desire not to delegate powers to the ethnically homogeneous and more powerful provinces, yet new provinces and kabupaten are created on ethnic lines. In practice however, in the peoples mind, regionalisation is perceived as empowering local communities. Another article of the constitution is even more clearly based on delegations of powers to traditional communities. Article 18B(2) provides that The state shall acknowledge and respect traditional societies along with their customary rights as long as these remain in existence

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UUD45 art 18B(1) as amended: Negara mengakui dan menghormati satuansatuan pemerintahan daerah yang bersifat khusus atau bersifat istimewa yang diatur dengan undang-undang. For example the new province of Gorontalo is made up mainly of Muslims whereas the province of North Sulawesi of it used to be a part is predominantly Christian, see House approves new province of Gorontalo, Jakarta Post, 12 Jun 2000, online: Dow Jones Interactive and Nexis. One of the main argument for the creation of the proposed new province of Ciberon is that the five regencies not only have the economic potential to develop into a new province, but are also culturally different to predominantly Sundanese West Java (Ciberon is Javanese, not Sundanese), see Regency legislatures to prepare formation of Cirebon province, Jakarta Post, 11 Aug 2001, online: Dow Jones Interactive and Nexis.

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and are in accordance with the societal development and the principles of the Unitary State of the Republic of Indonesia, and shall be regulated by law.77 This seemed broad enough to be interpreted as recognition of the traditional adat law of these communities and maybe even of their traditional forms of self-government. Whether or not the actual delegated powers went to proper, natural and maybe ethnic communities the fact remains that unfortunately the population quickly interpreted the regional autonomy law and the constitutional amendment as licences to discriminate against ethnic minorities. The implementation of regional autonomy has unfortunately led to the implementation of regional, local, or even religious, cultural, and ethnic discriminations and preferences. After all, the implementation of regional autonomy is partly due to the resentment of many nonJavanese against what they perceive as the economic exploitation of all of Indonesia by the peoples of Java. It would not be difficult, for example, to imagine that a local government in Riau would prefer to grant an exploitation licence to someone from Riau rather than to a Javanese. Looking at the attitudes of small entrepreneurs or workers trying to make a living illustrates the problem. I was particularly disturbed by the view amongst many ordinary Indonesians that regional autonomy will allow them to discriminate against people who are not from their region, and that, for example, natural resources should be reserved for people from their region. This is particularly disturbing when we realise that no matter how long one has lived in a given region, if he or she does not speak the local language, he or she is considered a stranger. 78 Some examples illustrate my concern. Regions are to be given autonomy over the management of sea resources up to 12 nautical miles from the littoral.79 Even before the implementation of this regional autonomy,

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UUD45 art 18B(2) as amended: Negara mengakui dan menghormati kesatuankesatuan masyarakat hukum adat beserta hak-hak tradisionalnya sepanjang masih hidup dan sesuai dengan perkembangan masyarakat dan prinsip Negara Kesatuan Republik Indonesia, yang diatur dalam undang-undang. One must know the politics of languages in Indonesia to fully understand the potential for discrimination. The national language is Bahasa Indonesia which is the language of instruction in schools and which almost everyone now speaks (except some older folks and pre-school kids who may only speak their local languages). Those who are not from a certain region but live in that region will readily be identified as foreigners, because they do not speak the local language. For example, many of my Indonesian friends have lived in Yogyakarta for years, and yet they are often overcharged at stores because they do not speak Javanese. Regional Autonomy Law, art 3.

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fishermen in one of the kabupaten of Central Java have sought to exclude from their waters the fishermen from a neighboring kabupaten.80 Also, local authorities in Bali have effectively tried to curb commerce by Javanese in such popular place as Kuta Beach.81 One wonders whether these kinds of discriminations exacerbated by the implementation of regional autonomy may adversely affect transmigrants and other Indonesians who, in the future, might be seeking jobs in regions where they were not born. Many civil servants will need to be transferred to the regional authorities. Will they be welcomed if they have no link to the region? The Minister of Manpower has recently blamed regional authorities for blatant labour discriminations made in the name of regional autonomy. 82

V. CONCLUSION
The adoption of the Second Amendment to the UUD45 has brought a significant change in the orientation of Indonesian constitutional law. Many have looked at the amendment from a liberal individualistic human rights point of view. The adoption of a long list of individual rights is certainly a very significant paradigm shift. This paper however has focused on minority rights qua minority. A few collective rights have been granted to individual members of minority communities. More importantly however, the central government has delegated many of its powers to local communities. The claims of group rights and of rights of group members against the unitary State of Indonesia when combined with new individual claims of human rights has radically changed the paradigm of the Indonesian states. A much greater portion of the constitution is now devoted to individual and collective rights and powers rather than to the unity of the State. This need not in principle, spell disunity: a state more respectful or individual and collective identities may win the hearts of more Indonesians. There are however early signs that do not augur well. The increasing discrimination against ethnic minorities and the sometimes aggressive assertiveness of the newly empowered regions are worrying. These tendencies could easily be exploited by

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See Violence may flair up where its least expected, Jakarta Post, 22 Jan 1999, online: LEXIS, News. See also [Vice-President] concerned about possible conflict among fishermen, Jakarta Post, 19 Dec 2000, online: LEXIS, News. Kuta incident leaves hawkers out in the cold, Jakarta Post, 19 May 1999, online: LEXIS, News. See Regions accused of ethnic discrimination in the workplace, Jakarta Post, 24 Oct 2001, online: Dow Jones Interactive or Nexis.

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power hungry politicians who could use them for their owned benefit and enrichment. More worrisome, in a system where the courts are powerless and the constitution is not enforced, it is very likely that collective rights as opposed to individual rights will be politically enforced. This could mean that regional governments will exercise their powers for the majority ethnic group in their region and discriminate against minorities: it is the politically expedient thing to do. It is too early to see whether this scenario will prevail but we must remain attentive to the recent developments so as to quickly learn lessons for the forthcoming round of constitutional reform. Increased discrimination and further disintegration are serious possibilities. The solution that many Indonesian activists are likely to favour may well be a new constitutional court that could enforce the individual as well as the collective rights protected by the constitution. Given the track record of courts in Indonesia, I remain skeptical. Although a change of political culture (and, in my dreams, of politicians) is much more difficult to achieve, it might be the only long-term solution constitutions without a democratic culture are not worth much.