Constitutionalism in Asia in the Early Twenty-First Century

(Greg DeLong) #1

The principle of equality is a primary principle of human rights. Human rights are


for everyone – as much for people living in poverty and social isolation as for the


visible and articulate. By international law, the principle of non-discrimination


prohibits discrimination in the enjoyment of human rights, on any ground, such as


race, skin colour, gender, language, religion, politics or other opinion, national or


social origins, property, birth or other status. The term ‘or other status’ might include


personal circumstances, occupation, lifestyle, sexual orientation or health status.


The Second Amendment forbids discrimination on the basis of gender, race,


disability, language or social status. It stipulates equal rights and obligations for all


citizens, both native and naturalised. Article 28 I( 2 ) stipulates, ‘Each person has the


right to be free from discriminatory treatment on any grounds and has the right to


obtain protection from such discriminatory treatment.’ Article 28 D( 1 ) states, ‘Each


person has the right to the recognition, the security, the protection and the certainty


of just laws and equal treatment before the law.’ This article guarantees the right to


equal treatment ‘before the law’ and to the protection of human rights and


freedoms, without discrimination.


Under Article 28 D( 2 ), anyone, without discrimination, has the right to work and


to receive just and appropriate rewards and treatment in their working relation-


ships. Moreover, the members of the MPR retained Article 27 of the original 1945


constitution. This article clearly guarantees the right to equality by stating, ‘All


citizens have equal status before the law and in government and shall abide by the


law and the government without any exception.’


In order to see whether the equality provisions in the Second Amendment


provide full protection of equality rights, it is necessary to examine religious


liberties. Under the title ‘Religion’, Article 29 of the Indonesian constitution


provides to ‘all persons the right to worship according to his or her own religion


or belief’, and states that ‘the State is based upon belief in the one supreme God’.


The text actually does not refer to any particular belief. The language used in this


Article 29 postulates a universal value. In this sense, Gary Bell explains that


even though the Republic of Indonesia ‘is based on the belief in the One


and Only God’, freedom of religion is protected and Islam, the religion


of the majority, has no special constitutional status. 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 Indonesian indi-


viduals 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.^24


I will return to the issue of religious freedom later.


(^24) Ibid., 792.


332 Hosen

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