The ITE and the limits of expression Harison Citrawan  ;   The writer works at the Human Rights Research and Development Agency under the Law and Human Rights Ministry

JAKART POST, 08 September 2014

                                                                                                                       

                                                      

The article “Why Jokowi must repeal the ITE Law” by Ary Hermawan (Sept. 2) conveys an interesting discussion on the long-debated application of defamation as a crime under the 2008 Electronic Information and Transactions (ITE) Law. The article brings the assumption that the ongoing legal process of a defamation case against graduate law student Florence Sihombing, regarding her opinion expressed in her Path account, is just another indication of “a serious flaw in our legal system”. Thus, the article conclusively underlines that there is a need for the future government to repeal this so-called draconian law, as it may harm democracy, and presumably our basic rights and fundamental freedom to express an opinion. I would argue to the contrary for several reasons, however. First, from a constitutional perspective, the ITE Law is in conformity with the 1945 Constitution. This premise is based on a Constitutional Court decision in 2008 concerning a judicial review of the ITE Law. The court decided that Article 27 (3) and 45 (1) of the ITE Law, which regulate crimes of defamation in cyberspace, are not contrary to the 1945 Constitution, consequently making it in line with human rights protection as well. In its consideration, the court stated that the state had the obligation to preserve reputations both in offline and online society. Second, based on a study conducted by the United Nations special rapporteur, Frank La Rue (2011), on the promotion and protection of the right to freedom of opinion and expression, a human rights perspective on legitimate limitations to the right to freedom of expression states a three-part cumulative test departing from Article 19 of the International Covenant on Civil and Political Rights (ICCPR), namely: “(a) any limitations must be provided by law, which is clear and accessible to everyone (principles of predictability and transparency); (b) it must pursue one of the purposes set out in article 19, paragraph 3, of the covenant, namely (i) to protect the rights or reputations of others, or (ii) to protect national security or of public order, or of public health or morals (principle of legitimacy); and (c) it must be proven as necessary and the least restrictive means required to achieve the purported aim (principles of necessity and proportionality)”. Third, this special rapporteur report also acknowledged that there were legitimate types of limitation imposed by the state based on the ICCPR. The report states that, “Legitimate types of information which may be restricted include child pornography (to protect the rights of children), hate speech (to protect the rights of affected communities), defamation (to protect the rights and reputation of others against unwarranted attacks), direct and public incitement to commit genocide (to protect the rights of others), and advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence (to protect the rights of others, such as the right to life).” Based on these three arguments, it is arguably legitimate for Indonesia to limit any expressions, including those published on the Internet, through the ITE Law as it is an effort by the state to preserve public order. Nonetheless, the law-in-text and the application of it should be put in two interrelated buckets. While the ITE Law appears to be a type of legitimate intervention by the state upon individuals’ freedom to express an opinion, on the other hand, the application of the law, along with its sanction imposition, should follow a comprehensive understanding on human rights reasoning. The law enforcement, thus, ought to weigh primarily the “gravity” of impact of an actual expression against any reputations involved, which should also include a consideration of access to repair the damage by the victim. Arguably, such a test could be implemented upon the Florence case at hand. Furthermore, in relation to this, the special rapporteur also reported that, “in cases of defamation of individuals’ reputation, given the ability of the individual concerned to exercise his/her right of reply instantly to restore the harm caused, the types of sanctions that are applied to offline defamation may be unnecessary or disproportionate.” Given “rapid” as a main feature of online interaction, any legal process against the alleged crime of defamation in cyberspace must consider that the victim, as human rights logic shall always be pointed to the reparation of the perpetrated one, has available access to repair his/her reputation instantly through the Internet. To conclude, applying the ITE Law textually may considerably send more and more people to already overcrowded jails as all Internet users may potentially perpetrate “petite” cybercrimes. Hence, a bigger scheme of human rights logic needs to be applied by law enforcers upholding the ITE Law. ●

Understanding the nature of prisoner’s rights

Understanding the nature of prisoner’s rights Harison Citrawan  ;   A Researcher at the Human Rights Research and Development Agency, the Law and Human Rights Ministry           JAKARTA POST, 01 Agustus 2013

Following the prison breaks in Medan and Batam a few weeks ago, a debate concerning our national correctional system has arisen, particularly on the issue of the implementation of Government Regulation No. 99/2012, which enshrines the rules and procedures for the fulfillment of prisoner’s rights. 

Under this regulation, a significant ruling that has sparked concern among prisoners is the restriction on terms and conditions of, among other things, remission for inmates convicted of specific crimes (corruption, narcotics, terrorism, gross human rights violations and organized transnational crimes). On top of public debate concerning the applicability of the regulation, a recent submission for judicial review of the regulation to the Supreme Court might be a prime step in establishing legal certainty for these “special” convicts’ right to remission.

Most of the arguments opposing the government regulation are basically construed on the logic of the violation of human rights. Such logic includes convicts’ rights, irrespective of what kind of crimes they have perpetrated, as part of human rights and fundamental freedoms, which the state has to protect and uphold. As a consequence, the regulation, which specifically restricts terms and conditions of remission for extraordinary crimes, could be deemed as a human rights infringement, due to the discriminative nature of its application.

Apart from any other formal juridical arguments, it is important for us to view these problematic prisoner’s rights from a human-rights standpoint. Essentially, I would defend the view of prisoner’s rights being part of human rights that should be protected and upheld by the state, in particular by the government through the Law and Human Rights Ministry. Furthermore, in the context of remission as a right, a human-rights approach can be discerned from the perspective of the state’s duty to proportionally fetter prisoners’ liberty of movement and to ensure their right to humane treatment during detention.

The first thing we should have in mind is that these two rights are derogable rights, which the state has the authority to legitimately limit. Under human-rights laws, this limitation has to be based on legitimate aims, namely the maintenance of public order and public safety, along with the view that it should be regarded necessary in a democratic society. However, whilst the state has to exhaustively enumerate such limitation considerations, such a policy ought to be proportionate as well in order to safeguard prisoners’ rights.

Hence, public justice, the basic consideration in the enactment of the government regulation, finds its technical legal justification in the interest of preserving public order and national security. One thing we shall have to examine in the judicial review at the Supreme Court is whether the terms and conditions set out in the government regulation are proportionate in the sense of the conflict between public justice and prisoners’ rights.

A guiding norm regarding proportionality could be cited in the Human Rights Committee for the International Covenant on Civil and Political Rights, which mentions in its general comment on the freedom of movement that “... the restrictions [to freedom of movement] serve permissible purposes; they must also be necessary for public protection. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieving their protective function; they must be the least intrusive instrument among those that might achieve the desired result; and they must be proportionate to the interest of the protected”.

Based on the aforementioned reasoning, I would argue that the restrictions in the government regulation fulfils human rights norms and principles, as they attempt to strike a balance between the perspectives of the interest of the nation as a whole while at the same time also maintaining prisoners’ rights to remission. Hence, it would be proper to give the regulation some time to be applied in order to enable us to see its effectiveness in achieving the desired result.

All in all, human rights are claimed, although they are not absolute. The protection of prisoners’ rights as part of wider human rights cannot be separated from the logic of legitimate limitation. Thus, as a form of legal development, the Supreme Court may have to take a look at this perspective in determining the legality of the problematic 2012 government regulation. ●

Shia relocation, preferential treatment

Shia relocation, preferential treatment Harison Citrawan ;   A Researcher at the Human Rights Research and Development Agency, the Law and Human Rights Ministry

JAKARTA POST, 03 Juli 2013

The members of the minority Shia community in Sampang on the East Java island of Madura face prolonged adverse conditions following the local government’s decision to relocate them from their homes to Sidoarjo, which many consider to be a human rights violation. 

A protest by a group of 10 Shiites from Sampang, by means of cycling from their homes to Jakarta, indicates clear opposition by the community to being evicted from their land. They insist that, instead of resolving the problem, the relocation is merely the easy option chosen by the government to settle an inter-community conflict.

At this point, there are two competing dimensions to the relocation policy, namely relocation as preferential treatment for minorities or a human rights infringement. However, I would argue that these competing views can be resolved through a human rights standpoint, mainly by scrutinizing the discriminative element of the policy.

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

The International Covenant on Civil and Political Rights (ICCPR) also defines discrimination in a similar way to the 1999 law, with the notion of possible “preferential treatment” on the basis of, as the Human Rights Committee for the ICCPR puts it, “a state where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights”.

Departing from what the laws say, if the relocation policy is to be seen as preferential treatment, in principle, it should arguably be intended to halt any further conflicts among citizens and may in the end resolve horizontal conflicts. 

In this sense, preference could be briefly described as a view of granting a (disadvantaged) subject more desirable treatment than others. Disadvantaged in this context means vulnerability to human-rights violations, which may be caused by various factors. 

As human rights law sets out to protect the rights of victims, the state ought to treat these groups differently, or to some extent preferentially, compared to the rest of society.

But, what about when the state’s preference, in this case the relocation policy, harms minority rights? 

In human rights discourse, there are three cumulative elements that should be fulfilled in determining whether an action by the state is considered a human rights infringement: First, the action contravenes human rights law; second, it constitutes interference in people’s rights; and third, the action does not fall within the terms of legitimate limitation or lawful derogation.

In my view, giving an a contrario interpretation of the three elements, the relocation policy primarily, as part of preferential treatment, should be considered a legitimate differentiation as long as such action is needed to correct a discriminative event in fact. 

It has thus to be able to uphold two legitimate aims, covering: first, the nexus between the conflict’s root cause and the need for relocation, and second, relocation should serve as a tool to sustain restutio in integrum (restoration to the original condition).

While preferential treatment is essentially needed to overcome and diminish the root cause of a discriminative condition, it should also be temporary by nature and ought to be taken on a case by case basis. 

The lack of human rights understanding in the relocation policy would not provide a legitimate aim for such differentiation and would also be hardly considered a necessary method in a democratic society. It is generally accepted that democratic societies should promote pluralist communities; whereas relocation puts peoples in clusters, which might impair democracy itself.

To sum up, the plan to relocate the Shia population anywhere in the country will not effectively prevent religious violence if it fails to accommodate human rights principles. 

The absence of a broad and adequate human rights comprehension of this issue may create a kind of shortcut, not to protect the persecuted, but merely to provide satisfaction to a predominant, stronger, majority. ●

Aceh’s flag : A human rights approach

Aceh’s flag : A human rights approach Harison Citrawan  ;  A Researcher at the Human Rights Research and Development Agency, the Law and Human Rights Ministry

JAKARTA POST, 18 April 2013

  

The ongoing controversy surrounding the Aceh provincial flag under qanun (bylaw) No. 3/2013 arises from the fact that it resembles the flag of the now defunct secessionist group the Free Aceh Movement (GAM). As well as taking a legal approach to this issue, it can also be discerned from the application of human rights principles. The establishment of special autonomy status in Aceh is a form of intrastate agreement that is derived from the Aceh people’s right to self-determination. As this right allows people to freely determine their own political status, the Acehnese have the right to forge their legitimate claims politically, including the creation of a local flag, as enshrined under the Helsinki peace accord that Indonesia and the GAM signed in 2005. Theoretically speaking, such an intrastate autonomy agreement has several important advantages, especially when it is contested with the threat of secession. A. Buchanan (2004) speaks of three advantages.  First, uncoupling the right to secede from legitimate interests that groups may have in various forms of intrastate autonomy is liberating. It allows groups to get what they need without the risks involved in secession.  Second, states will be more receptive to legitimate claims for autonomy if they are assured that they can respond to these without implicitly recognizing the group’s right to secede.  Third, the justice-based account of the unilateral right to secede focuses attention on the need to provide better protection for human rights. Human rights have two essential elements: the permission or liberty and a correlative obligation. On the one hand, self-determination provides people with the permission or liberty to determine their own political status and natural resources. On the other, it places a limitation on the correlative obligations of people exercising their rights. As for the issue of the Aceh flag, while national laws allow this province to design its own flag freely, the Acehnese will also weigh up the limits or correlative obligations that should be respected in exercising the right to self-determination.  Under Article 1, paragraph 3 of the International Covenant on Civil and Political Rights, member states shall promote the realization of the right of self-determination and shall respect that right in conformity with the provisions of the charter of the United Nations (UN).  At this point, we may pinpoint the nexus between these norms, that the realization of the right to self-determination has to be within the UN’s principle objective of maintaining peace and security. As a result of this, member states have to preserve international peace and security to promote this right. In brief, the exercise of the right to self-determination shall not obstruct international peace and security. Another set of limitations on exercising the right to self-determination is that it should also be limited by the rights of others. Arguably, in exercising this right, every person must take into account the other’s human right and failing to do so could be regarded as an infringement of human rights. The exercise of self-determination in this context must regard the national interest as a whole. Departing from these limitations of self-determination, we turn to the illegitimate rule of the Aceh flag. First, given the resemblance of the flag with the GAM’s, the complaint of the central government is legitimate , as the flag itself could revive old hostilities. The home minister’s rejection of the qanun is justified under human rights norms, as the restriction is expressly stipulated by law and is necessary in a democratic society for the protection of national security and public order.  Second, the respect of the rights of others, that is to say other provinces or the nation as a whole, would justify the legality of the self-determination exercise. Self-determination is a process rather than an end,  “a continuum of rights” that provides “a plethora of possible solutions” (Pomerance, 1982). From a human rights vantage point, the practice of this right in Aceh through special autonomy status should focus on the legitimate purpose of achieving justice and prosperity. ●

Densus88 and the (il)legality of torture

Densus88 and the (il)legality of torture Harison Citrawan  ;  A Researcher at the Human Rights Research and Development Agency, the Law and Human Rights Ministry

JAKARTA POST, 26 Maret 2013

  

A video showing excessive force by the Densus 88 counter terrorism unit as it searched for terrorist suspects in Poso, Central Sulawesi, has prompted some religious leaders to demand the dissolution of the unit. Confirmation by the National Commission on Human Rights (Komnas HAM) of the authenticity of the video will intensify the discussion on the handling of suspected terrorists. This situation may prompt a debate over the (il)legality of the use of torture in terrorism cases, in particular on how should we balance preservation of national security and protection of individual’s rights and fundamental freedom? The prohibition of torture is a given under international law. Aside from many international human rights and practices that clearly prohibit the use of torture by the state, our national legal system has laws on torture prohibition. Legislation in 2009 on human rights in police duties categorically prohibits torture. Torture is not specified as a crime in its own right under Indonesia’s criminal law. The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (United Nations Convention against Torture) defines torture in terms of three criteria: intensity (infliction of severe mental or physical pain or suffering), intention (intentional or deliberate infliction of the pain), and purposefulness (pursuit of a specific purpose, such as obtaining information, punishment or intimidation). If we take a look at the European Court of Human Rights, the court famously declared that torture should “attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering.” In the case of Ireland versus United Kingdom for instance, the court ruled that the minimum assessment of torture is, “in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim, etc.” Determining whether torture has taken place or not is not always simple. Law enforcement certainly has discretionary authority to choose specific coercive measures in handling a particular case. Given the fact that “uncertainty” is the ultimate weapon of terror, proponents of torture mainly rely on consequentialist arguments. Such consequentialism, known as the “ticking bomb scenario” argument, refers to a clear and present danger, which may become a larger catastrophe if the legal institution fails to extract information from a suspect. As the catastrophe itself is essentially uncertain, the scenario simply argues that torture could be necessary in terms of “catastrophe prevention”. Such uncertainty, by and large, may affect the national criminal law in coping with terror. To a certain extent there is a need for the state to violate an individual’s rights and fundamental freedom on the basis of preserving national security as a bigger interest. But how should we balance in this kind of conflict? In the United States a four-part balancing test between national security interests versus individual freedom has been floated: first, the importance of the national interest in question, second, the extent to which the results of the torture advance the public interest, next the severity of the usurping of the citizen’s rights, and finally the purpose of the intrusion as distinct from traditional law enforcement. So despite combating terrorism requiring extraordinary measures, there are human rights principles which the state must comply with. Nonetheless, it is widely understood that institutionalizing torture of terrorists has detrimental consequences on civil, military and legal institutions, making the costs higher than the benefits. In other words, the institutionalization of torture cannot fulfill its purpose as a low-cost life saver in the ticking-bomb argument. In 1999, the Israeli High Court outlawed certain interrogation methods employed by Israeli security forces, arguing that in a democracy not all methods are acceptable, and just because a practice is employed by one’s enemies does mean it can be legitimately undertaken by the state. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the rule of law and recognition of an individual’s liberty constitutes an important component of national security. With no scientific finding on the effectiveness of Densus 88’s catastrophe prevention, an accountable, timely and transparent antiterrorism mechanism is required in every activity conducted by the detachment. To conclude, national security is definitely a basis for legitimate derogation of human rights. The enforcement of our anti-terrorism policy ought to comply with universal human rights values as mentioned by the law, so that the conflict between the protection of human rights and the preservation of national security can be reconciled. ●

Secession and the limit of sovereignty

Secession and the limit of sovereignty Harison Citrawan ;  A Researcher at the Human Rights Research and Development Agency, Law and Human Rights Ministry

JAKARTA POST, 28 Februari 2013

Unsurprisingly, many fingers have pointed to separatist rebels following the shootings that killed eight Indonesian soldiers and four civilians in remote areas of Papua last week.  To my understanding, such an allegation appears inescapable. This so-called “self-determination” movement has long been instigating hostile activity in the area with one unswerving aim: to secede from Indonesia. Separatism has been an issue since the birth of the nation-state system and persists in both developed and developing countries, in democracies and non-democratic states. One thing that should be highlighted at this point is the changing nature of secessionism, particularly on how to achieve independence.  Human rights norms have proliferated through various instruments, creating a kind of “humanization approach” in international relations. Arguably, since the establishment of the United Nations in 1945, states have striven for legitimacy from a legal point of view.  Apart from the many bloody secessionist conflicts around the world, the issue of secession seems to come within the United Nations’ framework, that is to say the issue becomes one of peace and security, of respect for human rights. Human rights instruments clearly prohibit war of any kind. The mere use of force in pursuing independence is contrary to the human rights principle.  The act of raising arms by secessionists legitimizes the mother state to suppress the movement for the sake of territorial integrity and national security. Nevertheless, from a standpoint of the extant state, using territorial integrity as the basis for oppression and to suppress separatist movements also violates human rights norms.  In the International Court of Justice advisory opinion on Kosovo in 2010, Judge Cançado Trindade opines that, “No state can invoke territorial integrity in order to either commit atrocities [...] or perpetrate them on the assumption of State sovereignty, or commit atrocities and then rely on a claim of territorial integrity notwithstanding the sentiments and ineluctable resentments of the ‘people’ or ‘population’ victimized.” While human rights impede a state’s exclusive authority in its territory, human rights protection should breed legitimacy for a state’s handling of separatist movements.  John Rawls, a leading figure in moral and political philosophy, defined three roles of human rights. First, human rights lend legitimacy to any regime and decency to its legal order.  Second, an excellent human rights record is sufficient to prevent forceful intervention by other peoples in a state’s internal affairs, say by economic sanctions or, in grave cases, by military force.  Third, they set a moral baseline for pluralism, ethnic and religious tolerance. The bottom line is interdependence rather than independence in resolving issues of secession. Interdependence requires interchange between fundamental freedoms, democracy, development and the protection of human rights.  In my view, this kind of approach in Papua would considerably reduce armed conflict between separatist groups and security forces. As for the latest killing of civilians and soldiers, military measures could be necessary but ought to be proportionate.  Military advantages gained must be balanced against any collateral damage that might occur. Military measures would demonstrate Indonesia’s prerogative for a monopoly on the internal use of force.  Forceful demonstration of this prerogative should be followed by a firm commitment to preserve human rights and a clear manifestation of this commitment by bringing to court previous human rights violators. Jean Bodin, a 16th century French jurist and political philosopher, and professor of law in Toulouse, once stated that, “the best way of preserving a state, and guaranteeing it against sedition, rebellion, and civil war, is to keep the subjects in amity with one another, and to this end, to find an enemy against whom they can make common cause”.  Men are susceptible to “barbarous acts” and “tyranny and oppression”.  It is not subversive acts or movements that should become our common enemy. The real enemy is those who seek to deny meaningful, universal access to fundamental rights and freedom. ●

Rejecting Lady Gaga, preserving morals?

Rejecting Lady Gaga, preserving morals?

Harison Citrawan ; A Research Staffer at The Human Rights Research and Development Agency Under The Law and Human Rights Ministry

SUMBER :  JAKARTA POST, 29 Mei 2012

The cancellation of the scheduled Lady Gaga concert is inevitably a big loss for the “Little Monsters” in Indonesia, as they have been waiting a long time for the American singer to perform in Indonesia.

The police’s justification in rejecting Lady Gaga is, in my opinion, plausible, as she may “indulge in revealing her body, dancing erotically and spreading pornography” (The Jakarta Post, May 19).

Such a consideration was not made in an isolated room, however, as evinced by the demands from Muslim conservative groups, which maintained that their opposition to the planned show was to preserve public morals.

One question that came to my mind was what kind of morals are the groups trying to preserve?

Public morality, from a human rights perspective, is one of two basic justifications for a state to delimit and restrict people’s human rights and fundamental freedom of expression.

Related to the justification on this basis, as stated in the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (ICCPR), “since public morality varies over time and from one culture to another, a state which invokes public morality as a ground for restricting human rights, while enjoying a certain margin of discretion, shall demonstrate that the limitation in question is essential to the maintenance of respect for fundamental values of the community”.

Based on such an interpretation, there are at least three explicit elements that ought to be taken into account regarding the determination of public morality.

First is the dynamics of society. In order to use public morality as a justification to limit freedom of expression, we have to fully realize the existence of the changing nature of society.

To be more specific, the Human Rights Committee for the ICCPR, for instance, says the concept of morals “derives from many social, philosophical and religious traditions; consequently, limitations for the purpose of protecting morals must be based on principles not deriving exclusively from a single tradition.

Any such limitations must be understood in the light of the universality of human rights and the principle of non-discrimination.

The second element would be the state’s margin of discretion. The state’s authority to restrict someone’s right to express him or herself shall not be interpreted as an exclusive act of the state to jeopardize that right.

Moreover, the margin of discretion itself implies an obligation of the state to draw a direct and immediate connection between the expression and the threat when such an expression is being imparted.

Third, the limitation imposed should be essential to the maintenance of respect for fundamental values held by the community.

Questions on public morality thus bring us once again to contemplate our nation’s shared bond. Is our bond simply based on religion, ethnicity or even economic interests? Or does it go beyond local, traditional and religious unification?

In relation to this third point, in national legal discourse, the Constitutional Court once had a good opportunity to interpret freedom of expression vis-à-vis public morality.

In the court’s verdict regarding the Pornography Law in 2003, the court simply argued that such a law was completely in line with moral values enlisted in religious teachings and culture, without going into details about any specific religion or culture, and what part of the teachings had a close nexus with anti-pornography afflatus.

Therefore, I entirely conform to the dissenting opinion conveyed by Judge Maria F Indrati, who argued that while the Pornography Law prohibited acts that did not comply with moral norms in society, such a rule could not be considered separate from any particularities in society.

Hence, I would argue that the court failed to regard the basis of restricted freedom (public morality to restrict freedom of expression) from the point of view of the universality of human rights.

Thus, this failure could potentially lead to the state’s flurry in determining public morality in order to limit an individual’s freedom.

Departing from the three elements determining public morality, brings us to an understanding that the move against Lady Gaga show should not be merely based on a one-sided opinion.

The National Police should have applied the principle of proportionality in determining the situation and they should have shown to the public the precise nature of Lady Gaga’s threat based on an objective appraisal.

To sum up, the Lady Gaga issue provides the nation with an opportunity to discuss and better understand the nature of our national bond.

As a worker in the area of human rights, I am certainly a big fan of public discourse, as it proves a nation’s capability to live with diversities and respect freedoms.

The fact that there exists a small number of conservatives who oppose the concert does not mean that human rights law does not preserve their right to opine.

However, given the use of threats that accompanied their collective rejection, which is the worst option in a discussion, I would tend to adopt the opposite stance. ●

Public nuisance and ‘Adzan’

Public nuisance and ‘Adzan’

Harison Citrawan ;  Working at the Human Rights Research and Development Agency (Balitbang HAM), Law and Human Rights Ministry

SUMBER :  JAKARTA POST, 11 Mei 2012

The Vice President’s criticism of the volume of the adzan, a call for prayer from a mosque, has reaped public controversy.

Such criticism followed concerns that the volume of a mosque’s loudspeakers might potentially cause public nuisance.

The criticism, therefore, implies that the state ought to consider a feasible policy that will create a conducive and quiet environment, without barring our fellow Muslims from exercising their religious obligations.

From a human-rights standpoint, the state needs to strike a fair balance between the protection of religious exercise and the protection of private and family life from noisy disturbances.

First, the human rights law preserves one’s right to practice his or her religion. Article 18 of the International Covenant on Civil and Political Rights states that: “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or embrace a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

However, such a freedom, as regulated under paragraph 3 of the article, “may be subject only to
such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” It is then quite clear that our Muslim brothers and sisters have the right to hold a certain practice of faith, including the chanting of the adzan, which has been in place in society for centuries.

However, it is also undeniable that the structure — as well as the paradigm — of society changes with time. Religious tolerance and respect for other’s rights are currently a major campaign around the country. Such a paradigm is therefore needed as we are struggling to eliminate religious and sectarian conflicts.

In relation to the discussion at hand, one should also bear in mind that every individual has the right to a private and family life. Article 17 of the ICCPR enshrines that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.”

But, how could the right to a private and family life be related to religious practice? A view from the European Court of Human Rights below might give us some insight.

In the case of Hatton and others vs the United Kingdom (2003), the applicants who lived around Heathrow Airport alleged that government policy on night flights gave rise to a violation of their rights under Article 8 of the European Convention on Human Rights, which protects the right to a private and family life.

To be more specific, it is interesting to note the court’s argument regarding the interpretative nature of that human rights convention, in which it stated that: “The convention is a living instrument, to be interpreted in the light of present-day conditions.”

This “evolutive” interpretation by the commission and the court of various convention requirements has been considered “progressive”, in the sense that they have gradually extended and raised the level of protection afforded to the rights and freedoms guaranteed by the convention to develop the “European public order”.

Subsequently, in relation to the interpretation of a private and family life, the court furthers the argument by stating: “In the field of environmental human rights, which was practically unknown in 1950, the commission and the court have increasingly taken the view that Article 8 embraces the right to a healthy environment, and therefore to protect against pollution and nuisances caused by harmful chemicals, offensive smells, agents which precipitate respiratory ailments, noise and so on.”

The legal reasoning argued by the European Court of Human Rights may serve us logic in human rights interpretation. In its broad sense, the right to a private and family life shall cover one’s right to a healthy environment includes a protection against noise disturbances.

It is to my understanding that the criticism voiced by the Vice President over the loudness of the adzan is grounded in this sense of a private and family life. The state’s interference with freedom to exercise religious practices thus would be justified if such practices well-foundedly discomfort the neighborhood around the place of worship.

The sense of subjectivity is extremely high to this point, however, in line with the dissenting opinion made by Judges Costa, Ress, Türmen, Zupani and Steiner in Hatton Case above: “One of the important functions of human rights protection is to protect ‘small minorities’ whose ‘subjective element’ makes them different from the majority.”

Certainly, it is a new challenge for the government, as the state’s duty to strike a fair balance between individual rights and public nuisance — as a public interest — should be initially justified on scientific study and investigation.

The guidelines for community noise published by the World Health Organization (1999) might be a good starting point to manage the two conflicting interests, between the freedom to exercise religious practice and the right to a private and family life. ●