statism into a more coherent, complete, democratic framework for a pure
presidential system with separation of powers and checks and balances.
Human rights and freedom
On 23 September 1999 , a month before the presidential election, President Habibie
signed Human Rights Law No 39 of 1999. This law implemented MPR Decree
xviion Human Rights, which decree had been adopted by the MPR at its session
in November 1998. Law No 39 of 1999 sets out a long list of internationally
recognised human rights, which Indonesia is obliged to protect. The law contains
provisions on human rights and fundamental freedoms, the responsibilities and
obligations of the government in the promotion and protection of human rights,
and the plan to set up a Human Rights Court. Law No 39 of 1999 also strengthens
the powers of the National Commission on Human Rights (Komnas HAM), which
had been established by presidential decision in 1993 , to monitor and report on
human rights abuses. Most importantly for its future investigative role, the new law
gave the commission the legal power to force the attendance of witnesses, includ-
ing those against whom complaints have been made.
21
However, those regulations are not adequate to protect human rights, since they
could easily be replaced by whoever is in power. Laws and other regulations should
be based on the Constitution, whereas too many of the key clauses of the original
1945 constitution end with an injunction for further specification in law, opening the
door to subsequent manipulation. The original constitution also lacked guarantees
of basic civil and political rights. Therefore it was essential to insert articles in the
1998 MPR Decree as part of the Second Amendment to the 1945 constitution in 2000.
This section deals with human rights provisions in the Second Amendment to
the 1945 constitution. According to Tim Lindsey of the University of Melbourne,
Articles 28 A–J in Chapter XA are ‘lengthy and impressive, granting a full range of
protections extending well beyond those guaranteed in most developed states’.^22
In the same vein, Gary Bell of the National University of Singapore takes the view
that the inclusion of human rights provision in the Second Amendment to the 1945
constitution which adopts a long list of individual rights ‘has brought a significant
change in the orientation of Indonesian constitutional law’.^23
(^21) For a full account see Nadirsyah Hosen, ‘Human rights and freedom of press in the post-
Soeharto era: a critical analysis’ ( 2002 ) 3 ( 2 )Asia-Pacific Journal on Human Rights and the Law
1 ; Hikmahanto Juwana, ‘Special report: assessing Indonesian’s human right practice in the
post-Soeharto era’ ( 2003 ) 7 Singapore Journal of International & Comparative Law 644.
(^22) Tim Lindsey, ‘Indonesia: devaluing Asian values, rewriting rule of law’, in Randall Peeren-
boom (ed.),Asian Discourses of Rule of Law(London: RoutledgeCurzon, 2004 ), p. 301.
(^23) Gary F. Bell, ‘Minority rights and regionalism in Indonesia: will constitutional recognition
lead to disintegration and discrimination?’ ( 2001 ) 5 Singapore Journal of International and
Comparative Law 784.