Minority Rights and Regionalism in Indonesia

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Singapore Journal of International & Comparative Law

Singapore Journal of International & Comparative Law(2001) 5 pp 784 806

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 centralisedcountry where national integration was the main goal. The nationalrhetoric 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 thedomination of the Javanese in political and national institutions, andresentment might have been growing for years, but the rhetoric wasone 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 withinone of its regions. Most Indonesians live on the island of Java, whichmakes a minority of anyone living on another island. At the same time,the island of Java itself is not homogeneous even though the Javaneseare in majority, there are significant minorities in Java including the

* Assistant Professor, Faculty of Law, National University of Singapore. This paperwas written for the Joint Northwest Regional Consortium for Southeast AsianStudies and Canadian Council for Southeast Asian Studies Conference organisedby the Centre for Asia-Pacific Initiatives at the University of Victoria, Canadaand held at the University of Victoria from 25 to 27 Oct 2001. The paper wasalso presented at a staff seminar at the Faculty of Law of the National Universityof Singapore on 24 Oct 2001.

1 I do not use the words rhetoric and propaganda in a pejorative sense. I willuse the word rhetoric simply to mean a discourse that tries to persuade andpropaganda to mean a state-organised promot ion of a concept or idea . Forexample I find it absolutely normal and even good that the State has a rhetoric

and propaganda to promote national unity.2 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 expressionis almost unabated. Indonesia also held democratic elections in 1999. This isa young and quite imperfect democracy but there is now sufficient political spacefor minority groups to express their grievances and demand redress, andpoli ticians now do feel such pressures and take them into account.


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Minority Rights and Regionalism in Indonesia

very numerous Sundanese who are also originally from Java.3 Almostall ethnic and religious minorities in Indonesia are a majority in someIndonesian regions and therefore stand to gain by a decentralisationof powers to the regions. The most notable exception is the Chineseethnic group which is in minority everywhere. Many Indonesians fromJava and Bali have also established residence on other islands throughtransmigrasi4 and there are therefore Javanese, Madurese, Sundaneseand 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 protectionsfor minorities. Many powers of the State have also been transferredto the regions in an effort to curb disintegrating forces. The fear ofdisintegration forces the state to address minority grievances.

The title of this article may sound contradictory. That the recognitionof minority rights and regional identities may lead to the disintegrationof Indonesia is a common worry, but how could this lead to discrimination?If stopping discrimination is the whole purpose of minority rights andregionalism, how could the constitutional and legal protection of minorityrights and of regional identities and powers lead to discrimination?

My concern with respect to minority rights leading to discriminationis the prospect of having minorities within minorities or within autonomousregions, eg, the Muslims in Hindu Bali, the non-Javanese in Yogyakarta.This is not a minor concern in Indonesia. Incidents of ethnic or religioustensions 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 onthe island of Java (the other groups being the Sundanese in the West, theMadurese in the North East close to the island of Madura and the Balinese inthe East close to the island of Bali). Of the roughly 220 million Indonesiansabout 45% (almost a majority) are Javanese and 14% Sundanese. This meansthat the two ethnic groups whose centre of population is originally in Java formabout 60% of the Indonesian population a clear majority. When you add to thisthe Madurese or Balinese who have lived on Java rather than their close- byislands for centuries in some cases, and the numerous ethnic groups that havemore recently congregated in the capital Jakarta, the total population of Javais 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. Theexpression Javanese can be confusing at times. Non-Javanese residents of Javaoften do not appreciate being described as Javanese, but sometimes people,especially foreigners, describe all residents of Java as Javanese.

4 Transmigrasi is the movement of Indonesians from the overpopulated islandsof Java, Bali and Madura to other, less densely populated islands. Transmigrasihas 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 ethnicgroups live in constant fear. The situation in Ambon for example can

be describe as one of open civil war. Because of the past policy oftransmigrasi, there are ethnic minorities all over Indonesia. Will therecognition of autonomous regions lead to discrimination againstminorities in these regions?

In this short article I propose to look at the Indonesian Constitutionfrom the point of view of minorities in Indonesia. Before I do, I willexamine the role of constitutions from the point of view of comparative

law to show that unenforceable constitutions are not unheard of andcan be useful. Then I will look at the Indonesian Constitution as itstood before its amendment. I will then define individual rights andcollective rights (exercised individually or collectively) before finallyconsidering examples of these rights in the second amendments tothe 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 theresuch a thing? We all know that law in Indonesia, if enforced at all,is not enforced consistently. There are courts and prosecutors in placeto enforce the law, but the limits of these judicial institutions are wellknown allegations of incompetence and corruption are frequent. 5

When it comes to constitutional law, however, the situation seemseven worse the courts do not even have jurisdiction, not even intheory, to hear any constitutional claims. The problem is not that courtsfail to enforce the Constitution because of inefficiency, incompetence

or corruption. Rather, the problem is that no court has jurisdictionto enforce constitutional law. There is no constitutional court inIndonesia and the general courts, including the Makamah Agung [MA]or Supreme Court, lack constitutional jurisdiction. One could thereforesay that constitutional law is unenforceable in Indonesia.

There may be an exception to this. The MA had refused to answerquestions addressed to it by former President Wahid about theconstitutionality 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 The author has no doubt that some judges and prosecutors are honest andcompetent, but here describes the general perception of the Indonesian public.

6 Majelis Permusyawaratan Rakyat, the upper House of Parliament.


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the MA suddenly granted itself a newly found jurisdiction onconstitutional matters and issued a fatwa or advisory opinion declaringhis decree unconstitutional (which it no doubt was).7 It is a very unusualmove on the part of any court to issue such a decree ex parte, withoutthe benefit of full argument. It seems to contradict the courts earlier

position to the effect that it had no constitutional jurisdiction and thusthe fatwa seems politically motivated. In fact, there appears to be noconstitutional basis to justify the issuance of such a fatwa. Althoughthe fatwa says nothing to that effect, Chief Justice Bagir later claimed

that the fatwa was not mandatory and not legally binding and thatit was issued under a law allowing for advisory opinion (UU 14/1985).8

This fatwa was issued in the most peculiar of contexts and shouldin my view be considered an exception rather than the rule. In anyevent even the Chief Justice admitted that the opinion of the courtwas not binding. Therefore constitutional law remains unenforceablein 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 almostmeans there is no constitutional law. The common law tradition seeslittle place or role for unenforceable laws. In fact, that tradition haslong focused on the availability of remedies rather than on legal theory.This has led it to define the law mainly as positive enforceable law.

7 The fatwa came in the form of an official letter (surat resmi) dated 23 J ul 2001and bearing reference number: No KS02/3709.A/DPR-RI 2001, online Indoregula-tion (date accessed: 9 Dec 2001).

8 Bagir argued that it was not mandatory and that the fatwa, the term widely usedfor the Courts legal opinion, is not legally binding.After receiving a letter from the House, we gathered Supreme Court justicesto 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 thegovernment 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 directquote of what Bagir has said. The only quote from Bagir is from the precedingparagraph].


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The common law was elaborated by courts that have wide powersof 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. Nothingin the US Constitution explicitly granted the Supreme Court the powerto enforce the Constitution by declaring invalid the laws that contravenethe Constitution.9 It seemed however self-evident to the Court thatsince the Constitution was the supreme law, it had to be enforcedand that unconstitutional Acts of Congress should be declared invalid

by the regular courts. In the Anglo-American tradit ion, that is whatcourts do they enforce the law, the whole law, including Constitutionallaw and if there is no law, they might even make it up (the commonlaw is judge-made law). Therefore in the 1803 case of Marbury v

Madison10 the US Supreme Court held, for the first time, that a federalstatute was invalid because in enacting it, Congress had exceeded the

powers gran ted to it by the Const itut ion .This American approach to constitutional law is prevalent in almost

all common-law countries that have a Constitution. For example, theCanadian 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 powersby the United Kingdom, if they exceeded their powers, their Acts wereinvalid. At first, Canadian constitutional law was basically a kind ofadministrative law based on a limited delegation of powers by the UK.This entitled the courts to declare laws to be invalid because ultrasvires (beyond the powers granted) and to declare government actionsto be unconstitutional. In 1982 Canada became constitutionallyindependent and therefore the Colonial Law Validity Act 1865 no longer

applied. It was replaced by section 52 of the Constitutional Act 1982,

9 S 2 of Art III of the US Constitution did state that the judicial Power shall extendto all Cases, in Law and Equity, arising under this Constitution, the Laws of theUnited 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 adoptedby Congress .

10 5 US (1 Cranch) 137 (1803).11 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 Provisionsof 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 ofParliament, or having in the Colony the Force and Effect of Such Act, shall beread subject to such Act, Order, or Regulation, and shall, to the Extent of suchRepugnancy, 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 theConstitution.12 Similar principles of constitutional law can be foundin almost all former British Colonies, including India and Malaysia.

The reaction of common law lawyers to the situation in Indonesiais therefore predictable. Since the Constitution is not enforceable byany court, it is therefore not really law. In a sense they might associatethe state of constitutional law in Indonesia with the state of the Ruleof Law there is effectively no or little Rule of Law and no or littleconstitutional law in Indonesia. Their view is that one cannot have

the Rule of Law without a Constitution that is fully enforceable andenforced by courts. Faced with a Constitution that is unenforceable

by any court they tend to think that there is effectively no constitutionallaw in Indonesia.

C. The Civil Law Tradition: ConstitutionsMay be Unenforceable by Courts

Here is where comparative law becomes useful in some civil lawjurisdictions, such as France, the Constitution was for a long time not

judicial ly or otherwise independently enforceable and is st il l to thisday not fully enforceable, and if enforced, it is not enforced by regularcourts of law. Therefore, the fact that the Indonesian Constitution isnot enforceable does not necessarily mean that Indonesia is a pariahState when it comes to constitutional law.

At the outset, let me state that I am of the view that it is preferableto have a Constitution that is somehow enforceable by independentorgans 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 dedroit Negara Hukum without a fully enforceable constitution goesagainst the experience of many States, including France.

In France once a law is adopted, its validity can never be contestedno matter how clearly unconstitutional the law is. The courts of lawhave essentially no constitutional jurisdiction (except for the reviewof search and seizures in the criminal process) and cannot review theconstitutionality of laws or of government actions. Since 1958, thereis in France a Constitutional Council (Conseil constitutionnel) whichmay 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 Act1982, (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, tothe 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 passesthrough Parliament, the Council has no jurisdiction. The DeclarationOf The Rights Of Man And The Citizen which is indirectly includedin the French Constitution through a mention in its preamble cannot

be invoked by citizens whose ind ividua l right s are viol ated.Notwi ths tanding th is, no one would dare say that France does notrespect the Rule of Law or that France has no constitution or noconstitutional law. Unenforceable constitutions can be significant politicaland legal symbols.

D. Unenforceable Constitutions are not Necessarily Useless

One of the basic assumptions of this paper is that Constitutions thatare unenforceable by courts are not necessarily useless and are thereforeworthy of academic analysis and of course here I do not use theterm academic in the sense of useless!

One of the issues that may legitimately be raised however is whethersuch constitutions are worthy of a jurists attention or whether theyshould be left to the analysis of political scientists. One should note

that in France many faculties are of Law and Political Sciences andthat the separation between law and political sciences is not alwaysclear. Constitutions, even legally enforceable ones, are legitimately theobject of political science studies, and reciprocally one would expectthat even unenforceable constitutions could be the object of legalstudies.

Civil-law lawyers are particularly fond of studying unenforceablelaws. The teaching of law in continental universities started with theteaching of Roman law, a law that at the time was purely theoretical

and did not apply anywhere. Private law lawyers in the civil law traditionhave whole theories about natural and moral obligations that areunenforceable but nonetheless are the object of legal studies.International law is also the object of legal studies even though moreoften that not it is unenforceable in fact and sometimes even in law.

The contribution of a jurist to the study of unenforceable constitutionsis not necessarily political. The jurist can apply legal analysis to tryto see what the effects of the Constitution would be if it were to beenforced by courts. It may also contribute to the legal rhetoric thataccompanies claims of constitutionality made by those who invoke

13 For an overview of French constitutional law in English see: J Bell, FrenchConstitutional 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, thejurist can look at the symbolic and educational (or propaganda) valueof the Constitution. In this paper I will try to see whether the protectionof minorities in the Constitution and its first two amendments tell ussomething about the nature of the new Indonesian State and its goals.

It will come as no surprise that I will show that the IndonesianConstitution (the Undang-undang Dasar 1945 hereinafter UUD45) beforeits amendment was a symbol of national unity and integration andthat it had little place for the recognition of minority rights. The Second

Amendments to the UUD45 has led to another model for the IndonesianState, one that symbolically is prepared to recognise more diversitywhile still promoting unity.

III. THEUUD45AS A SYMBOL OF UNITY

The Indonesian Constitution of 1945 is a short instrument but is clearlyan instrument of unity. Its first article proclaims: the State of Indonesiashall be a unitary state in the form of a Republic.14 The original article18 does mention the creation of regions but regions are not given

specific constitutionally-guaranteed protections.15The constitution also provides for a national flag16 and much more

importantly for a national language17 that has been one of the maintools of integration in Indonesia. This is particularly true when thenational language is linked to the Central Governments right to runa national education system18 and to promote the national culture.19

14 UUD45, art 1(1): Negara Indonesia ialah Negara Kesatuan yang berbentuk

Republik.15 UUD45 art 18 (as it then read): The division of Indonesia into large and smallregions and the structures for their governance shall be prescribe by law havingregard for, and keeping in mind the principle of deliberation in the governmentsystem of the State and the traditional rights in regions which have a specialcharacter. Pembagian Daerah Indonesia atas Daerah besar dan kecil, denganbentuk susunan pemerint ahannya di te tapkan dengan Undang-undang denganmemandang dan mengingat dasar permusyawaratan dalam sistem PemerintahanNegara, dan hak-hak asal-usul dalam Daerah-daerah yang besifat Istimewa.

16 UUD45, art 35: The national flag of Indonesia shall be the red-and-white.Bendera Negara Indonesia ialah Sang Merah Putih.

17 UUD45, art 36: The national language of Indonesia shall be the Indonesian

language. Bahasa egara Indonesia ialah Bahasa Indonesia.18 UUD45, art 31(2): The government shall establish and conduct a national

educational system which shall be regulated by law. Pemerintah mengusahakandan menyelenggarakan satu sistem pengajaran nasional, yang diatur denganUndang-undang.

19 UUD45 art 32: The government shall advance the national culture. Pemerintahmemajukan kebudayaan nasional Indonesia.


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Citizens also have some individual rights but in some way, as wewill see in more detail below,20 these rights can also reinforce the unityof the State. This is for example the case with the equality right all citizens will be treated the same because of their belonging to aunitary 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 lawand in government (pemerintahan) and shall respect (menjunjung) thelaw and the government without any exception.21 Equality is in a sense

a minority right it is rare that members of majority groups arediscriminated against (with the notable exception of women who areoften part of a discriminated majority).

In the same vein, even though the Republic of Indonesia is basedon the belief in the One and Only God,22 freedom of religion is

protected 23 and Islam, the religion of the majority has no specialconstitutional status.24 The secular nature of the State can be seenagain as an effort at unity: there is no minority religion in law if thereis no recognition of the majority religion by the law. Religion becomesan individual matter and all Indonesians individuals are treated equally.One could therefore say that the way the constitution mentions religiousfreedom without mentioning Islam is meant to afford constitutional

protection to re ligious minori ties .25

Some other basic human rights are mentioned in the UUD45, in theform of both individual liberties (right to work and live in human

20 See discussion under New Rights for a New Indonesia? Individual non-collectiverights below at p 12 and following.21 UUD45 art 27(1): Segala Warganegara bersamaan kedudukannya di dalam

Hukum dan Pemerintahan dan wajib menjunjung Hukum dan Pemerintahan itudengan tidak ada kecualinya.

22 UUD45, art 29(1): The State shall be based upon the belief in the One and OnlyGo. Negara berdasar atas Ke Tuhanan Yang Maha Esa. See also the preamblewhich states that one of the Pancasila principles is the belief in the One andOnly God. Tuhanan Yang Maha Esa.

23 UUD45, a r t 29(2) : The S ta te guarantees a l l pe r sons the f reedom of worship, each according to his/her own religion or belief. Negara menjaminkemerdekaan tiap-tiap penduduk untuk memeluk agamanya masing-masing

dan untuk beribadat menurut agamanya dan kepercayaannya itu.24 This is due to the rejection of the so-called Jakarta Charter which would have

required Muslim to follow Syariah law.25 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 itsatheism, was and remains effectively banned. Atheism was not a recognisedoption in Indonesia and in fact effectively remains so to this day.


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dignity26 and freedom of association, assembly and expression to beprescr ibed by law) 27 and as rights of claim against the State (rightto education28 and right of the poor to be supported by the State). 29

These rights however were not part of the main rhetoric of the Stateand were not mentioned often. The only one of these rights that mayhave some relevance to minorities is the freedom of association, whichwould allow minorities to form their own associations. Other minorityrights, such as self-determination in local matters and the preservationof local cultures, are not provided in the UUD45.

IV. THE SECOND AMENDMENTS TO THE UUD45:ANEW MODEL FORINDONESIA?

On 18 August 2001, the MPR adopted the Second Amendment to theUUD45 which contains many provisions on human rights.30 I will lookmainly at its provisions on minority rights but first let me distinguish

between two kinds of minori ty rights .

A. Individual Rights v Collective Rights

(Exercised Individually or Collectively)

For liberal democrats and human rights advocates from a commonlaw background, the concept of collective rights is often a frighteningone. The fear seems to be that so-called collective rights are justan excuse for denying individual rights. One Canadian author talksof an outright hostility of some Canadian judges and commentatorsto the collective rights concept.31

26 UUD45 art 27(2): Every citizen has the right to work and to live in humandignity. Tiap-tiap Warganegara berhak atas pekerjaan dan penghidupan yanglayak bagi kemanusiaan.

27 UUD45 art 28: Freedom of association and assembly, of verbal and writtenexpression and the like, shall be prescribed by law. Kemerdekaan berserikatdan berkumpul, mengeluarkan pikiran dengan lisan dan tulisan dan sebagainyaditetapkan dengan Undang-undang.

28 UUD45, art 31(1) Every citizen has the right to education. Tiap-tiap Warganegara

be rhak mendapatkan pengajaran .29 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.30 The Majelis Permusyawaratan Rakyat, the upper House of Parliament has the

authority to amend the UUD45 under s 37.31 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 rightsis generally a good idea and is absolutely essential to the survivalof Indonesia as a united country. To understand collective rights ashuman rights a useful starting point is the premise that individualscan only find fulfilment by being members of a social group. 32

Some countries such as the United States and France take a morepurely liberal and individualistic view of human rights. They emphasizeintegration (one language, one culture really, except for folks songsand 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 theirconstitution.

Canada for example is such a country. The traditional liberalindividualistic approach was never successful in rallying French Canadiansand First Nations (aboriginal peoples), the minorities that had theirown sustainable cultures and often their own territorial claims. GeorgeGrant explained the failure of former Prime Minister Diefenbakers

brand of Canadian nationalism as follows:

There was one aspect of Diefenbakers nationalism that was repugnantto thoughtful French Canadians, however attractive to English-speakingLiberals and New Canadians. He appealed to one united Canada, in whichindividuals would have equal rights irrespective of race and religion; therewould be no first- and second-class citizens. As far as the civil rightsof individuals are concerned, this is obviously an acceptable doctrine.Nevertheless, the rights of the individual do not encompass the rightsof nations, liberal doctrine to the contrary. The French Canadians hadentered 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 distinctionbetween Canada and the United States has been the belief that Canadawas 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 sometimesnecessary to preserve national unity.

The concept of collective rights explains rights that citizens haveonly if they belong to a constitutionally defined group. For example,

32 Magnet, ibid, at 176.33 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 inQuebec or in French in English-majority provinces is granted only tothose who belong to predefined linguistic minorities.34 Aboriginal rightsare granted to aboriginal peoples or individual aborigines accordingto a statutory definition of Indian under the Indian Act.35 In fact, upto 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 thatare exercised individually and those which are exercised collectively.

Collective rights are those that are granted to a group of people orto individual who are part of a group.37 There are therefore two kindsof collective rights those conferred on individuals because they

belong to a community and those that the law grants to a group asa group.

Collective or group rights, [...], are asserted by individuals or groupsof individuals because of their membership in the protected group.Individual rights are asserted equally by every one despite membershipin certain ascertainable groups.38

Because collective rights are usually granted to minorities for theirprotection, I will also refer to them as minority rights. I will dividecollective rights into two categories for the purpose of this paper minority rights that are exercised individually and minority rights thatare exercised collectively, both of which are to be contrasted withindividual rights.

34 Parents have the right to send their children to minority language schools inQuebec if they have received their primary school instruction in Canada inEnglish. In other provinces if the first language the parents learned and stillunderstand is French, wherever they may have learned it in the world, theymay send their children to minority language schools. See ss 23 and 59 of theCanadian Charter of Rights and Freedoms, Part I of theConstitution Act,1982beingSchedule B to the Canada Act 1982 (UK), 1982, c 11.

35 See ss 6 and 7 of the Indian Act, CSC I-5.36 Magnet, supra note 32, at 173.37 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 droitslinguistiques, in M Bastarache, ed, Les droits linguistiques au Canada (Montral:Yvon Blais, 1986) at 26. Translation: Juridically, collective rights are those thatare recognised as belonging to a group of individuals or to individuals who arepart of a group.

38 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 conferredon an individual because he belongs to a specific group or community.These rights are exercised by individuals but they are collective inthat the individuals have these rights because they belong to a groupor community. An example would be the right to minority languageeducation or aboriginal rights in Canada. Only members of a legallydefined minority group have these rights.

(ii) Minority rights that are exercised collectively

Minority rights that are exercise collectively are akin to powersgranted to a particular minority group. To take a neutral example ( ie,non-Indonesian), in Canada, parents belonging to a minority-languagegroup can not only get minority-language education for their children,

bu t are en titled to separate schools which they can manage wherenumbers justify this.39 This right is conferred upon the communitycollectively: there must be sufficient numbers to justify the creationof separate schools and no one parent can claim the right to managethe school alone. Another example of a collective right conferred toa group would be the workers legal right to strike. Powers ofgovernment that are delegated to a group (aborigines) or a region(provinces) are also in some way collective rights of that group orregion.

(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 rightsare particularly important to minorities (protection against discriminationfor example), but they are not minority rights as they are granted toall and can be used by member of majority groups. I will start mydiscussion 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, whichhas 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 perceivedas rights that protect the individual against the State and thereforeone would think these rights might potentially undermine the Staterather than strengthen its unity. It is however possible for the constitutional

protect ion of ind ividual righ ts to symbolically unify a na tion thusmaking its citizens proud of belonging to the nation. Such is for examplethe role played by freedom of speech in the United States of America

it defines the nation. Americans are proud of belonging to a nationthat constitutionally protects freedom of speech and that constitutional

protection is a source of unity and pr ide 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 RightsMovement in the late fifties and early sixties tried to implement that

promise and brought more equality between the races. Most Americanswould however be surprised to learn that many aspects of what they

perceive as a constitutional right of equality are in fact not protectedby the Constitution. The Equal Rights Amendments was never adoptedand other than a vague provision on equal protections of the laws,40

and specific provisions prohibiting slavery41 and the denial of the rightto vote,42 there is no general provision against discrimination in theAmerican Constitution. Protection is however available throughlegislation. Equality in the United States is for the most part what I

would refer to as a constitutional value rather than a constitutionalright.

40 14th Amendment, US Constitution.41 13th Amendment, US Constitution.42 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 Stateon 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 shallnot be denied or abridged by the United States or by any State on account ofsex. See also s 1 of the 24th Amendment: The right of citizens of the UnitedStates to vote in any primary or other election for President or Vice President,for electors for President or Vice President, or for Senator or Representativein Congress, shall not be denied or abridged by the United States or any Stateby 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 Constitutionof the Fifth Republic does refer to the Declaration of the Rights ofMan and the Citizen but, as mentioned above, this document is notdirectly enforceable in France and there is therefore almost noenforcement of human rights under French constitutional law. 43

Nevertheless the French consider equality and freedom of expressionto 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 theadoption of this comprehensive Bill of Rights. Adding such protectionsin the Constitution looks good politically and it is done at little cost(the political costs comes with implementation, not adoption). Thefact that these constitutional rights are not enforceable does not howeverdiminish their symbolic value and their potential to create pride andunity.

Most of the human rights added to the constitution by the SecondAmendment are not specific minority protection provisions. They arenonetheless significant to minorities in that a society that guarantiesindividual 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 andthe right to seek asylum,46 the right to social security47 and the rightto own property.48

Some individual rights are of particular interest to minorities. Theright to equality before the law as formulated in UUD45 remains49 butis enhanced by an additional provision to the same effect 50 and ananti-discrimination provision which states that every person shall have

the right to be free from discriminative treatment based upon anygrounds whatsoever and shall have the right to protection from such

43 There is now enforcement of human rights under the European Convention onHuman Rights to which France is a party.

44 Art 28A as amended.45 Art 28F as amended.46 Art 28G(2) as amended.

47 Art 28H(3) as amended.48 Art 28H(4) as amended.49 Art 27(1) remains unchanged.50 Art 28D(1) as amended: Every person shall have the right to recognition,

guarantees, protection and certainty before a just law, and to equal treatmentbefore 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 mainlyto minorities.

The provision on freedom of religion is not amended but a provisionis added that states every person shall be free to embrace and to

practice the religion of his/her choice . 52 Also added is freedom ofconscience and belief: every person shall have the right to the freedomto hold beliefs (kepercayaan), and to express his/her views andthoughts, 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 Thisshould protect minorities in newly autonomous regions. Finally theright of association may be relevant to minority groups. 55

(ii) Individually Exercised Minority Rights

More significantly for our purposes the second amendment conferstwo 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 havethe same opportunity and benefit in order to achieve equality andfairness.56 This article makes sense only if disadvantaged groups arehelped and therefore its protection is granted only to members of suchgroups.

Another provision protects cultural identities: The cultural identitiesand rights of traditional communities shall be respected in accordance

51 Art 28I(2) as amended: Setiap orang berhak bebas dari perlakuan yang bersifatdiskriminatif atas dasar apa pun dan berhak mendapatkan perlindungan terhadapperlakuan yang bersifat diskriminatif itu.

52 Art 28E(1) as amended: Setiap orang bebas memeluk agama dan beribadatmenurut agamanya

53 Art 28E(2) as amended: Setiap orang berhak a tas kebebasan meyakinikepercayaan, menyatakan pikiran dan sikap, sesuai dengan hati nuraninya.

54 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 returnto it. Setiap orang bebas ... memilih tempat tinggal di wilayah negara danmeninggalkannya, serta berhak kembali.

55 Art 28E(3) as amended.56 Art 28H(2) as amended: Setiap orang berhak mendapat kemudahan dan

per lakuan khusus untuk memperoleh kesempatan dan manfaat yang sama gunamencapai persamaan dan keadilan.


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with the development of times and civilisations. 57 Although this rightis clearly collective, it is not clear in my opinion what that implies.What does it means to respect the cultural identity of a traditionalcommunity? This provision follows one protecting individuals fromany discrimination.58 I submit that the provision therefore speaks in

part to a recognition of an individuals identity. Individuals will haveto claim the right to see their culture respected (individually exercisedright) but could it also means that traditional institutions (thoseenforcing adat59 for example) are protected and can exercise their

traditional powers (collectively exercised right)? This is not entirelyclear from article 28I(3) but as we shall see below, a wide recognitionof the powers of traditional societies will be recognised by article18B(2).

(iii) Collectively Exercised Minority Rights (Powers) Decentralisation60

The motivations behind the recent decentralisation of powers tothe regions were political and economical. It is trite to say that Soehartoheld 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 degreeof 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 degreeof autonomy should be granted to the regions.61

In fact, it seemed at the time that, unless some degree of autonomywas indeed granted, the independence movements of Aceh and IrianJaya would go unabated. These two regions have been promised separate

57 Art 28I(3) as amended: Identitas budaya dan hak masyarakat tradisionaldihormati selaras dengan perkembangan zaman dan peradaban.

58 Art 28I(2) as amended, see supra note 52.59 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.60 Some passages from this part are adapted from an earlier article published as

Gary F Bell, The New Indonesian Laws Relating to Regional Autonomy: GoodIntentions, Confusing Laws, (2001) 2 Asian-Pac Law & Poly J 291, .

61 See, eg, Keith B Richburg, Will Indonesia Be Balkanized?, Wash. Post, 4 Jun1998, online: Lexis, News; Kafil Yamin, Autonomy demands add to Habibiesheadaches, Asia Times, 8 Jan 1999, (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 EastTimor.64 In addition to Aceh and Irian Jaya, some other resource-richregions, such as Riau, were complaining that they were not gettingtheir fair share of the revenues from the exploitation of their naturalresources. One of their recurring recriminations against the New OrderGovernment65 was that all the revenues from their resources endedup in Java with no benefit to them. 66 It was therefore important toshow that the new Indonesia would be fairer in its distribution of

wealth.67

This explains the adoption of the Fiscal Balance Law68

withits promise of a new distribution of revenues.

In this context, on 18 August 2000, the MPR adopted a constitutionalamendment on regional autonomy, which replaces Article 18 by threenew articles (18, 18A and 18B). The amendment constitutionalises awidespread decentralisation. The most relevant article is the newArticle 18 which constitutionalises the basic structure of regional

62 These two provinces were meant to be granted special autonomy since the verybeginning in 1999. In fact the newly amended consti tution provides that [t]hecountry recognises and respects some individual regional administrations thatpossess a special or extraordinary character, which is regulated by law (Negaramengakui 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.

63 The special autonomy law for Aceh was proclaimed by President Megawati on15 Aug 2001, see Derwin Pereira, Mega offers Aceh more autonomy, The Straits

Times (Singapore), 16 Aug 2001, online: Dow Jones Interactive.64 The adoption of the Regional Autonomy Law on 7 May1999 took place justbefore the Timor debacle that was triggered by a vote for independence on 30Aug 1999. East Timors proposed autonomy was not to be governed by theRegional Autonomy Law but by a separate law. See Undang-Undang No 22, Th1999 Tentang Pemerintah Daerah [Law Number 22, Year 1999 on Regional

Governments] (7 May 1999) [hereinafter Regional Autonomy Law] art 118.65 For those unfamiliar with Indonesian politics, Orde Baru (New Order) refers to

the Soeharto regime. Indonesia Baru (New Indonesia) seemed to havebecome the most commonly used expression to describe the post-Soeharto era.

66 See Richburg, supra note 62; Yamin, supra note 62.67 For resource-rich regions, however, fairness of distribution of resources is not

the goal of the autonomy movement. These regions would rather keep therevenues of the region within the region, whether or not that is fair to the otherregions.

68 Undang-Undang No 25, Th 1999 tentang Perimbangan Keuangan AntaraPem erintah Pusat dan Daerah [Law Number 25, Year 1999 on Fiscal Balance

between the Central Government and the Regions] (19 May 1999) [hereinafterFiscal Balance Law].


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How are these powers collective rights? They would be if they weregranting to specific identifiable groups some powers used for theirsurvival and betterment as a group. This is clearly the case for specialregions as the state shall acknowledge and respect units of regionalauthorities that are special and distinct, which shall be regulated bylaw.75 This is exemplified in the case of Aceh, special status of whichwas recognised by a special law recently proclaimed.

With respect to other regions I think it is also the case that regionalpowers can of ten be read as col lect ive rights. The problem is that

the delegation is artificially done at the kabupaten level rather thanat the provincial level. Fearful of separatism by, for example, theethnically and culturally homogeneous province of Bali, the bulk of

powers were not de lega ted to provinces (of which the re are about30) but to the kabupaten or regencies (about 360 of them) which aresmaller administrative units that are often not natural communities.There was no real effort to delegate powers to a level that correspondedto actual real communities the powers were simply delegated to theexisting kabupaten.

On the other hand, however, new provinces and kabupaten havebeen created based on ethnic lines thus confirming that in some way,regionalisation attempts to give power to specific communities.76 Thelegislative message is therefore unclear. There was a desire not todelegate powers to the ethnically homogeneous and more powerful

provinces, ye t new provinces and kabupa ten are created on ethniclines. 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 societiesalong with their customary rights as long as these remain in existence

75 UUD45 art 18B(1) as amended: Negara mengakui dan menghormati satuan-satuan pemerintahan daerah yang bersifat khusus atau bersifat istimewa yangdiatur dengan undang-undang.

76 For example the new province of Gorontalo is made up mainly of Muslimswhereas the province of North Sulawesi of it used to be a part is predominantlyChristian, see House approves new province of Gorontalo, Jakarta Post, 12 Jun

2000, online: Dow Jones Interactive and Nexis. One of the main argument forthe creation of the proposed new province of Ciberon is that the five regenciesnot only have the economic potential to develop into a new province, but arealso culturally different to predominantly Sundanese West Java (Ciberon isJavanese, not Sundanese), see Regency legislatures to prepare formation ofCirebon province, Jakarta Post, 11 Aug 2001, online: Dow Jones Interactive andNexis.


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and are in accordance with the societal development and the principlesof the Unitary State of the Republic of Indonesia, and shall be regulated

by law.77 This seemed broad enough to be interpreted as recognitionof the traditional adat law of these communities and maybe even oftheir traditional forms of self-government.

Whether or not the actual delegated powers went to proper, naturaland maybe ethnic communities the fact remains that unfortunatelythe population quickly interpreted the regional autonomy law and theconstitutional amendment as licences to discriminate against ethnic

minorities. The implementation of regional autonomy has unfortunatelyled to the implementation of regional, local, or even religious, cultural,and ethnic discriminations and preferences. After all, the implementationof regional autonomy is partly due to the resentment of many non-Javanese against what they perceive as the economic exploitation ofall of Indonesia by the peoples of Java. It would not be difficult, forexample, to imagine that a local government in Riau would prefer togrant an exploitation licence to someone from Riau rather than to aJavanese.

Looking at the attitudes of small entrepreneurs or workers tryingto make a living illustrates the problem. I was particularly disturbed

by the view amongst many ordinary Indonesians that regional autonomywill allow them to discriminate against people who are not from theirregion, and that, for example, natural resources should be reservedfor people from their region. This is particularly disturbing when werealise that no matter how long one has lived in a given region, if heor she does not speak the local language, he or she is considered astranger.78

Some examples illustrate my concern. Regions are to be given autonomy

over the management of sea resources up to 12 nautical miles fromthe littoral.79 Even before the implementation of this regional autonomy,

77 UUD45 art 18B(2) as amended: Negara mengakui dan menghormati kesatuan-kesatuan masyarakat hukum adat beserta hak-hak tradisionalnya sepanjangmasih hidup dan sesuai dengan perkembangan masyarakat dan prinsip NegaraKesatuan Republik Indonesia, yang diatur dalam undang-undang.

78 One must know the politics of languages in Indonesia to fully understand thepotential for discr iminat ion. The national language is Bahasa Indonesia whichis 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 locallanguages). Those who are not from a certain region but live in that region willreadily 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.

79 Regional Autonomy Law, art 3.


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fishermen in one of the kabupaten of Central Java have sought to excludefrom their waters the fishermen from a neighboring kabupaten.80 Also,local authorities in Bali have effectively tried to curb commerce byJavanese in such popular place as Kuta Beach.81 One wonders whetherthese kinds of discriminations exacerbated by the implementation ofregional autonomy may adversely affect transmigrants and otherIndonesians who, in the future, might be seeking jobs in regions wherethey were not born. Many civil servants will need to be transferredto the regional authorities. Will they be welcomed if they have no link

to the region? The Minister of Manpower has recently blamed regionalauthorities for blatant labour discriminations made in the name ofregional autonomy.82

V. CONCLUSION

The adoption of the Second Amendment to the UUD45 has broughta significant change in the orientation of Indonesian constitutional law.Many have looked at the amendment from a liberal individualistichuman rights point of view. The adoption of a long list of individual

rights is certainly a very significant paradigm shift. This paper howeverhas focused on minority rights qua minority. A few collective rightshave been granted to individual members of minority communities.More importantly however, the central government has delegated manyof its powers to local communities.

The claims of group rights and of rights of group members againstthe unitary State of Indonesia when combined with new individualclaims of human rights has radically changed the paradigm of theIndonesian states. A much greater portion of the constitution is now

devoted to individual and collective rights and powers rather thanto the unity of the State. This need not in principle, spell disunity:a state more respectful or individual and collective identities may winthe hearts of more Indonesians. There are however early signs thatdo not augur well. The increasing discrimination against ethnic minoritiesand the sometimes aggressive assertiveness of the newly empoweredregions are worrying. These tendencies could easily be exploited by

80 See Violence may flair up where its least expected, Jakarta Post, 22 Jan 1999,online: LEXIS, News. See also [Vice-President] concerned about possibleconflict among fishermen, Jakarta Post, 19 Dec 2000, online: LEXIS, News.

81 Kuta incident leaves hawkers out in the cold, Jakarta Post, 19 May 1999, online:LEXIS, News.

82 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 benefitand enrichment.

More worrisome, in a system where the courts are powerless andthe constitution is not enforced, it is very likely that collective rightsas opposed to individual rights will be politically enforced. This couldmean that regional governments will exercise their powers for themajority 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 learnlessons for the forthcoming round of constitutional reform. Increaseddiscrimination and further disintegration are serious possibilities. Thesolution that many Indonesian activists are likely to favour may well

be a new constitutional court that could enforce the individual as wellas the collective rights protected by the constitution. Given the trackrecord of courts in Indonesia, I remain skeptical. Although a changeof political culture (and, in my dreams, of politicians) is much moredifficult to achieve, it might be the only long-term solution constitutionswithout a democratic culture are not worth much.

Documents

Minority Rights and Regionalism in Indonesia