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Protecting foreigners' rights in Indonesia

By Answer C. Styannes
February 04, 2010

Jakarta, Indonesia — Three foreign citizens who were sentenced to death by an Indonesian court – three of the “Bali Nine” convicted in Indonesia of drug trafficking in 2005 – filed a constitutional review two years after their conviction. After exhausting other appeals processes, Australian citizens Myuran Sukumaran, Andrew Chan and Scott Anthony Rush requested the Indonesian Constitutional Court to revoke the death sentence from the Narcotics Law on the grounds that it was inconsistent with the Constitution’s guarantee of the right to life. But the court rejected their request because they were not Indonesian citizens.

This raises the question: What legal avenue can be pursued to protect their right to life, a fundamental human right that applies to all human beings regardless of nationality?

Law No. 24/2003 regarding the Constitutional Court clearly states that the complainant in constitutional review cases must be an Indonesian citizen. If the rights of a foreign citizen living in Indonesia are violated by a prevailing law, he or she cannot request the Constitutional Court to declare the law unconstitutional and legally annulled.

This provision was strengthened by the Constitutional Court’s verdict in 2007, which ruled that three of five complainants on death row under the Narcotics Laws have no right to file a complaint before the Constitutional Court, based on the argument that the Constitution only provides protection to Indonesian citizens.

It is often deemed that a state and its constitution can only provide protection to citizens, as they are party to the social contract. Although it is true that an ideal and modern constitution must guarantee protection of the rights of a state’s citizens, this does not mean that the constitution cannot also protect third parties of the social contract, such as foreign citizens who live within the territory of the state.

Many states in the world provide protection not only to their own citizens but also to foreigners under their constitutions. This can be either implicit, as in South Africa and Croatia, or explicit, as in many former Soviet states such as Georgia, the Czech Republic and Russia.

By using grammatical and historical interpretations, we can actually conclude that the amended Indonesian Constitution implicitly provides protection for foreign citizens. Instead of using “every citizen” as in article 28D paragraph (3) of the Constitution, regarding the right to take part in government, other human rights provisions in the Constitution use the term “everyone.”

Historically, intense and thorough discussions never took place as to who was actually protected under human rights provisions in the Constitution. During discussions on the amendment of the Constitution, however, some political parties proposed to use the phrase “every citizen” in all human rights provisions. This proposal was later dropped, and the Indonesian People’s Consultative Assembly deliberately chose to use “everyone” – which again shows that the Constitution was intended to protect the rights of every individual within Indonesia’s territory.

Given that the Constitution provides protection for the rights of foreign citizens, it is logical that the laws and regulations under the Constitution would provide legal avenues for them to pursue when their rights are violated. The article that restricts foreigners from filing complaints with the Constitutional Court therefore violates their right to be recognized as persons before the law.

Further, it also meets the criteria of “discrimination” as determined by the International Convention on the Elimination of All Forms of Racial Discrimination, since it excludes persons from filing a constitutional review solely on the basis of their nationality.

This issue brings up the question of a state’s sovereignty, and of whether persons should be allowed to challenge the policy of a state that is not theirs. This concern is understandable, as a decision by the Constitutional Court applies not only to the complainant but to everyone in Indonesia’s territory.

For this reason it is important to place some limitations if foreign citizens are permitted to file complaints with the Constitutional Court. First, they should be allowed to challenge a law only if they believe it has infringed on their rights guaranteed by the Constitution. Foreign citizens should not be allowed to contest a law that is irrelevant to their rights.

Second, complaints should be filed only by individuals, not legal entities, as human rights are inherent to human beings. Another important aspect that the Constitutional Court must bear in mind in examining a case filed by a foreign citizen is that the national interest should be prioritized. It is important to protect the rights of foreign citizens in the context of the universal value of human rights, but this should not be upheld if it harms the national interest, as the country’s citizens are first party to the social contract.

There are some possible ways Indonesia could accommodate foreigners’ right to file a complaint for constitutional review. The first is by revising the Constitutional Court Law. This may take a long period of time, however. While waiting for Parliament to revise the law, the Constitutional Court actually could set aside the relevant article of the law if a foreigner filed a complaint. The Constitutional Court could then decide whether it wants to declare the article unconstitutional, or conditionally unconstitutional.

One thing is sure: laws and regulations should never restrict a person’s human rights, as these rights apply to the worst of us as well as to the best.

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Fidel Priestonn,
39 Bartok Bela korut Szombathely,
Szombathely 9700
Last updated: October 13, 2010