Competing Concepts: Human Rights in Indonesia's Constitutional Setting

The debate on human rights in Indonesia was commenced by the nation’s founding fathers during the drafting of the 1945 Constitution. The discourse on rights experienced a decline, especially in scholarly debate, during President Suharto’s New Order regime, which held power from 1966 to 1998. After the regime fell, calls for the constitutional protection of human rights resurfaced. However, these were largely motivated by political demands to hold Suharto’s authoritarian regime accountable for past human rights abuses. Debate has also focused on the legal concept of rights. With the adoption of constitutionalism, along with constitutional amendments, the term ‘constitutional rights’ came to fore. Rights, as basic or fundamental rights, are often identified with human rights. However, when the concept of constitutional rights arises, it is important to discuss the legal conceptual differences between the two. This paper analyses the debate in Indonesia on the different legal concepts between fundamental rights, human rights and constitutional rights. The first part of the paper examines the history of the debate on rights in Indonesia. The second part describes the intertwining of human rights and constitutional rights, especially after the constitutional amendments. It also touches on the theoretical aspects of rights. It then discusses the development of constitutional rights and their protection by the Constitutional Court.