resistance to human rights in indonesia: asian values and...

Asia-Pacific Journal on Human Rights and the Law 10(1) (2009) 27-47

Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/138819009X12589762582538

RESISTANCE TO HUMAN RIGHTS IN

INDONESIA: ASIAN VALUES AND BEYOND

Knut D. Asplund∗

1. Introduction More than a decade after the peak of the Asian values debate in the 1990s, its strongest proponents like Singapore’s Lee Kwan Yew and Malaysia’s Mahathir Mohamad are no longer in power. In Indonesia, Suharto’s authoritarian regime collapsed in 1998. Indonesian politicians also added their voices to the “Asian values choir”, most notably the late former Minister of Foreign Affairs Ali Alatas. Central to the Asian values argument was the position that human rights and Asian values were not really reconcilable. In hindsight, however, at least in the academic discourse, the Asian values argument has more than anything come to be seen as part of an attempt to legitimise authoritarian rule.1 Today, with the authoritarian regime in Indonesia gone, one could imagine that the process of implementing human rights in the country would progress smoothly. Indeed, in international forums Indonesia has made an effort to be seen as an active promoter of human rights, more recently by chairing the United Nations Commission on Human Rights in 2005 and by ratifying both the

∗ Program Director of the Indonesia Program at the Norwegian Centre for Human Rights, Oslo. This article is based on a paper presented at the conference “Asian Values versus Universal Human Rights Revisited” at the University of Helsinki, 31 May 2007, called “Asian Values and Responses to Human Rights in Indonesia”. I am indebted to Leena Avonius, Stener Ekern, Robert W. Hefner, Jermina García-Godos, Tore Lindholm, Andreas Føllesdal, Gyda M. Sindre and Liv Hærnes Kvanvig for insightful comments on earlier drafts of this article. 1 For retrospective literature on Asian values see for instance: Sen, Amartya (1997) “Human Rights and Asian Values: What Lee Kuan Yew and Le Peng don’t understand about Asia” in The New Republic, 14 July 1997 Vol. 217, No 2-3, pp. 33-40; Joanne R. Bauer and Bell, Daniel A. (eds) (1999) The East Asian Challenge for Human Rights, New York: Cambridge University Press; Bruun, Ole and Michael Jacobsen (eds). (2000) Human Rights and Asian Values: Contesting National Identities and Cultural Representations in Asia, Richmond: Curzon; Bell, Lynda S., Andrew J. Nathan and Ilan Peleg (eds.) (2001) Negotiating Culture and Human Rights, New York: Columbia University Press; and Barr, Michael D. (2002) Cultural Politics and Asian Values: The Tepid War, London: Routledge.

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International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights the same year. In 2007 Indonesia was elected to serve on the United Nations’ Human Rights Council. Despite the profound political and administrative changes that have taken place in Indonesia since the heydays of the Asian values debate and the apparent political backing human rights seem to enjoy, opposition to human rights still persists. There seem to be some “…deeper processes that tend to work against a liberal convergence of values in the region”.2 Below I attempt to identify some apparent dispositions that I argue contribute to foster reluctance towards human rights among various groups in Indonesia. I argue that this resistance to human rights is not so much a rejection of the idea of rights as such, as it is related more generally to people’s perception of the state, and to how power is conceived: my first line of reasoning is that, in a state that is not modelled on the idea of a social contract, human rights will not perform the same function and play the same role as it does within state systems where such a conception is generally adhered to. My second claim is that human rights often tend to be portrayed and perceived in such a manner that they appear as a quasi-religion or an alternative belief system. Thus, human rights emerge as a competitor challenging existing belief systems, ideologies and religions. Admittedly, contrasting Indonesian values, norms and conceptions about human rights to “Western” ones implies ample over-simplifications. Applying the “Asia-versus-the-West” dichotomy sets in motion orientalist as well as evolutionist overtones. Inoue Tatsuo has raised the point that by applying a “We-and-They” dualism one risks a “retelling of the Orientalist narrative”.3 Tatsuo’s Said-inspired critique of the believed epistemic hegemony where “The West is the knowing agent and Asia is the object to be known”4 and where “Oriental dualism is disguised as an empirical generalization” may also be a relevant objection to the manner I put forward my position in this article. Without embracing Kipling’s ultimate Orientalist position that “East is East, and West is West, and never the twain shall meet” I will, however, claim that certain aspects of what is popularly considered to be part of Indonesian culture contribute to obstruct

2 See Milner, Anthony (1999) “What’s Happened to Asian Values” in David S.G. Goodman and Gerald Segal. (eds.) Towards Recovery in Pacific Asia, New York: Routledge. http://dspace.anu.edu.au/html/1885/41912/values.html. 3 See Tatsuo, Inoue (1999 at 49) “Liberal Democracy and Asian Orientalism” in Bell, Daniel A. and Joanne R. Bauer (eds). 1999 The East Asian Challenge for Human Rights, New York: Cambridge University Press. 4 Id. at 38.

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the implementation of human rights in Indonesia. While Indonesian political culture may be infused with elements believed to be extracted from local traditions, I am not suggesting that Indonesians belong to some exotic breed equipped with a primitive mindset, nor that they are living in the past possessing a somewhat medieval mentality. While suggesting below that deep-seated cultural and religious ideas contribute to generate resistance towards human rights in Indonesia, this does not imply that Indonesians are somehow culturally unfit for embracing human rights. I merely suggest that most Indonesians have access to an arsenal of ideas that, if used for that purpose, could be applied to stimulate opposition to human rights. These ideas, I assert, could be seen as part of the local cultural make-up; they are linked to history, local religious and political traditions, and as importantly, they are communicated publicly (at least among certain segments of the population).

2. Indonesian Responses to Human Rights Having taken part in, or observed a number of human rights trainings where Indonesians have participated, certain responses could be said to be characteristic of this particular, although diverse, audience5. First, human rights are often understood as being part of the religious domain. Even at courses for law lecturers from secular or non-Islamic universities, the idea that “human rights originate from the grace of God” has been frequently articulated by local teachers. A view commonly expressed is that a human rights violation is an act which infringes upon the inherent human dignity of Man bestowed upon him by God. Human rights are thus seen as belonging to the moral universe rather than the legal.6 Secondly, many of the Indonesian participants at these courses tend to associate human rights with intra-societal relationships as frequently as they do with the state-citizen dyad. I have recorded Indonesians from well within the legal profession suggesting that it is the graveness and inhumanity of an act that qualifies it as a human rights violation, instead of pointing to the fact that the perpetrator is a state actor, or that the act is not sanctioned or penalized by the state.7 As a consequence of human rights being defined as those acts 5 The Indonesia Programme at the Norwegian Centre for Human Rights has since 2002 regularly conducted human rights trainings for Indonesians. A variety of professional groups such as university lecturers, public officials, journalists, NGO activists, military and police have participated at these trainings. 6 The degree to which people actually distinguish between a moral and a legal sphere could be questioned; however, in legal positivist thinking this distinction is fundamental. 7 It could of course be questioned if only states can violate human rights. The Scandinavian legal positivist position would be that since according to international human rights law the obligations are held by states, only states would be seen able to violate human rights.


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violating human dignity, the idea of “state responsibility” has not found much foothold in Indonesia, not even among practitioners of law. Suggestions that errors of an administrative kind committed by a public department may constitute a human rights violation are met with a somewhat indifferent attitude. That conceptions about human rights such as those described above are recurrently articulated by Indonesians may be explained in a number of ways; one could connect this observation to Indonesia’s recent history: The way Indonesians tend to view human rights reflects the kinds of human rights violations people have experienced and remember. The prototypical human rights violations are for many Indonesians those involving the security apparatus violently cracking down on political opposition during the New Order period (1965-1998). More to the point, the way human rights appear to be perceived by many Indonesians relates to how law and justice more generally is conceptualized. Much to the frustration of international legal advisors and consultants, particularly those coming from countries with common law systems such as Australia and the US, the idea that court decisions should build on jurisprudence from previous cases is not well established in Indonesia. More than once have I heard stunned legal consultants telling of judges that seem to be making decisions based on their intuitive reading of a case (or worse based on who has been paying them most for a particular outcome of the case) after which the clerks might fill in references to (more or less) relevant laws, depending on whether anyone paid them to write down the decision or not. This disregard for jurisprudence and precedence may not only be valued because it is lucrative; it also finds resonance in local traditions and culture. In traditional Javanese law there is no jurisprudence. A new decision on a similar case can be different from the last. The goal of a judicial process is to restore the harmonious condition that has been broken by the unlawful act. The goal of justice is

However, there is also the “horizontal effect” or “third part effect” of human rights law which may impinge on litigation between individuals. See Condé, H. Victor (1999 at 38). A Handbook of International Human Rights Terminology. 2nd ed. Human Rights in International Perspective Series 8, Lincoln: University of Nebraska Press. In addition there is the discussion of holding multinational corporations responsible for human rights breaches through corporate social responsibility (CSR) schemes, but these have yet to materialise as binding regulations. Also, in international criminal law, gross human rights violations amounting to genocide and crimes against humanity give rise to individual criminal liability. However, international criminal law is distinguished from international human rights law partly through the concept of individual criminal liability, as opposed to, or rather in addition to, state responsibility.

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thus social harmony, not justice for the individual. In deciding upon a case the judges would have to classify the perpetrations according to various legal categories provided by law texts:

A socially right choice ensured the realm’s peace and order (tata tantrem); a bad one could contribute to its downfall. More important here, were a similar case to turn up later the jurors would not necessarily have to act consistently in imposing a similar or even an analogous solution/verdict. They could again choose from many possibilities the one most appropriate to individual circumstance8

This approach to law and justice could be part of the explanation why high profile human rights cases in Indonesia like those related to Indonesia’s retreat from East Timor in 1999, and the killing of Indonesia’s most prominent human rights activist Munir in 2004, until now remain unresolved.9 Since the suspected perpetrators are powerful actors who could potentially provoke a lot of havoc if charged and found guilty, they should better be left untouched by law for the sake of preserving national harmony.

3. The Position of Human Rights Individual freedoms tend to be little emphasized in the Indonesian human rights discourse. This contrasts the understanding underlying the concept of “essential human freedoms” as espoused by US President Franklin D. Roosevelt in 1941 in his famous “Four Freedoms Speech” from which the Universal Declaration of Human Rights can trace some of its roots. Roosevelt’s perspective is based on an idea about the state as an overreaching structure that is there to protect the individual from infringements from powerful actors (including the state itself).10 In Roosevelt’s words “freedom means the supremacy of human rights

8 Hoadly, Mason (2006 at 4) “Paris - 2006, 21 July”. Unpublished manuscript for lecture held at Cornell Law School Summer course at the Sorbonne in Paris. Quoted with the author’s kind permission. 9 The political factor is of course more important than the cultural one in this respect. However, politics tends to find better foothold when it can resonate with existing cultural models. 10 The first freedom Roosevelt cites is ‘freedom of speech and expression’; the second is ‘freedom of every person to worship God in his own way’; the third is ‘freedom from want’; the fourth is ‘freedom from fear’. See Burgenthal, Thomas (2002 at 28) International Human Rights in a Nutshell, St. Paul, Minnesota: West Group.


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everywhere” and he added; “- everywhere in the world”. 11 The ideal state-individual relationship is pictured as a condition where one is residing in a territory that serves as your safe haven; where the role of the state is that of “protector” rather than “power exerciser”. This vision of the state seemingly had an idealized image of the USA as a point of reference; a place where people persecuted in Europe because of their religious convictions and practices could seek refuge. The ideal world order is thus being visualized as a system of independent, yet interdependent, states, sharing the norms of which the “four freedoms” is an expression.12 If there exists a direct line from the ideas found in the “four freedoms” to the Universal Declaration of Human Rights, we could imagine that the vision of the state inherent in the concept of human rights would be fairly equivalent to the one outlined above. In other parts of the world slightly different ideas about the role of the state and individual freedoms tend to dominate. Different conceptions about what should constitute a state, as well as different ways of perceiving the international human rights scheme, will influence how appropriate human rights are conceived to be and how easy they are to implement in different national contexts. Despite a somewhat indifferent attitude towards “individual freedoms” Indonesians are no strangers to “freedom” merdeka (or kebebasan) which is the equivalent term in Indonesian. According to Reid13 merdeka (freedom), as a legal term, used to refer to the group of people above the slaves but below the rulers. Also, the idea that freedom is an important prerequisite for a good life has long been well established in Indonesia. The term has, however, come to be as regularly associated with political freedom; that of smaller communities’ relative autonomy versus larger kingdoms, but particularly freedom stemming from the emancipation of colonized people, or processes of national liberation. The term still carries connotations of a youth-driven euphoric revolution associated with the years of decolonization and war against the Dutch in the late 1940s. Also, the two separatist organizations that have most clearly been championing political independence from Indonesia, Organisasi Papua Merdeka (OPM), 11 Note that in the “Four Freedoms”, speech was not primarily a call for a non-interfering state. In his “Message to the Congress” of 6 January 1941, Roosevelt also advocated old-age pensions and unemployment insurance, jobs, security and the widening of opportunities for adequate medical care, as well as “the ending of special privilege for the few”. See http://www.ibiblio.org/pha/7-2-188/188-22.html (pp. 86-87). 12 This image is also manifest in the Cold War idea of “the Free World”, and quite fittingly with the US President as the “Leader of the Free World”. 13 See Reid, Anthony (1998 at 149) “Merdeka: The Concept of Freedom in Indonesia” in Kelly, David and Anthony Reid (eds.) Asian Freedoms. The Idea of Freedom in East and Southeast Asia, Cambridge: Cambridge University Press.

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and the Gerakan Aceh Merdeka (GAM) both have the term merdeka in their organizations’ name. Merdeka is therefore seen as something which may threaten the current political order and the harmonious equilibrium that is seen as the ideal state of a society. Freedom thus needs to be controlled, if not it could contribute to bring about a potentially violent transition to a new form of rule. Although not equally potent, the first part of the term “individual freedom”; “individual” also has strong connotations insinuating individualism. In some circles in Indonesia, individualism is perceived as a characteristically Western trait; a life stance able to find foothold only within a society where the link between the person and the community has been cut. The “individual” is thus someone who is not complying with prevailing norms in a given place, someone who is not bound by the village’s unwritten rules, someone who has escaped his obligation to support fellow villagers. Such an individual opposes and threatens the social order. Quite tellingly, the Indonesian term preman, meaning gangster, hoodlum or criminal is a loanword coming from the English term “free man”.14 On the basis of how the ideas of “freedom” and “individualism” are perceived, it is not hard to imagine that the combined idea of “individual freedom” may not sit well among traditionally minded Indonesians. In the Asian values debate one feature that was said to distinguish Asians from Westerners was that the former regard communal duties as more important than individual freedoms. There is, however, nothing particularly Asian about this.15 Throughout periods in European history communal duties have been rated as far more important than individual freedoms. Also in natural law philosophy, often recognized as one of the roots of the human rights idea, moral duties have been strongly emphasized. As Syse points out, this applies in particular to the Christian, medieval natural law perspective associated with St. Augustin (354-430) and Thomas Aquinas (1225-1274): “It emphasizes belonging over choice, and thus it emphasizes duties and responsibilities over individual rights”.16 The Enlightenment school of thought attributed to Thomas Hobbes (1588-

14 Thanks to Timo Kivimäki for reminding me of this. 15 Tatsuo also makes this point (1999: 50-54). He even writes about “The communitarian West and individualist Asia” (1999:50). 16 See Syse, Henrik (2006 at 37) Natural Law, Religion, and Rights: An Exploration of the Relationship Between Natural Law and Natural Rights, with Special Emphasis on the Teachings of Thomas Hobbes and John Locke, South Bend, Indiana: St. Augustine's Press.


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1679) and John Locke (1632-1704) again puts more emphasis on freedom and equality. Throughout the period, from the Middle Ages to the Enlightenment, profound shifts in the perception of the relationship between Man, State, Church and God occurred in Europe. The religious wars of Europe reached their height with the Thirty Years War (1618-1648) that ended with the Peace of Westphalia (1648). This, in turn, created the basis for the European nation state.17 Other events that followed suit through the next two centuries, such as the French Revolution (1789) and the exodus to “The New World” (from 1620), also had significant influence on how the relationship between Man, State, Church and God is conceptualized and understood today. Regardless of their global importance, the impact of major occurrences in Europe’s history, such as the Enlightenment and the French revolution is, if not limited to the traditions of knowledge originating in Europe, at least colouring the perception of those under the influence of “European culture” more than those who are not. On the other hand as Barr states; “Most Southeast Asian cultures also contain significant elements of hierarchy and paternalism, none of which have been challenged by an indigenous equivalent to the European Enlightenment or the French Revolution, with their emphasis on freedom and reason”.18 One could, however, surely come across plenty of home-grown resistance to both hierarchy and paternalism among different groups in Indonesia, as elsewhere in Asia. However, the home-grown ideologies of Indonesia, like Sukarno’s “Marhaenism” and the distorted version of Pancasila thriving under the New Order, which “asserted the primacy of traditional values over a strict adherence to Western-derived law”19, were used to legitimize one authoritarian regime after the other. More than merely being an expression of particular European or North American cultural values, the international human rights regime is modelled on a particular perception of the state. It is this image of the state, rather that the idea of the rights themselves that are seminal when it comes to their implementation in different states around the world. 17 The Peace of Westphalia is often referred to as the birth of the modern nation-state. See Held, David (1995 at 74) Democracy and the Global Order: From the Modern State to Cosmopolitan Governance, Cambridge: Polity Press. The Westphalia treaties included clauses guaranteeing to Catholics living in areas ruled by Protestants the right to practice their faith and vice versa. 18 See Barr, Michael D. (2002 at 5) Cultural Politics and Asian Values: The Tepid War, London: Routledge. 19 See Gunn, Geoffery (1979 at 752) “Ideology and the Concept of Government in the Indonesian New Order” in Asian Survey, Vol. 19, No. 8, pp. 751-769.

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Whereas rights in the West until rather recently only meant rights for the privileged few, some states developed mechanisms to protect these rights. When at one point the idea arose that these rights should pertain to all, the instruments of the state, such as the courts as well as the principles their existence had contributed to establish, could rather easily be extended so as to include everybody. For their successful implementation, human rights need to be part of a system of checks and balances, where one of their primary functions would be to impose limitations on the powers of the rulers. This is easier to realize within the framework of certain political systems or certain types of states. It is difficult to imagine human rights compliance without democracy. In the long run, it is risky to rely on the good will of a dictator, however benevolent, for the protection of human rights. It is thus a procedural system with checks and balances that guarantees the implementation of human rights rather than having guarantors with a particularly ethical stance. In most political systems it is the continuous acceptance by the subjects that will ensure that the ruler stays in power.20 Thus, there exists a (more or less) reciprocal relationship between a ruler and his subjects. In a representative democracy one could even assume that it is in fact the subjects that have put the ruler in his position in the first place. A prominent idea in much Enlightenment philosophy, most often attributed to John Locke and Jean-Jacques Rousseau (1712-1778) is that of the social contract. Through such a social contract the citizens can somehow escape the horrors of a Hobbesian situation21 by putting the ruler in a position of power on the condition that he protects their rights.22 The principle of popular sovereignty thus implies that the will of the people is the source of public power. To operate with a model of power where the social contract preconditions the power of the ruler implies taking on a transactional perspective. The transaction taking place between ruler and subjects could be interpreted in light of Marcel Mauss’ classic essay on gift exchange and how this generates obligations for those taking part in the exchange.23 With that in mind it is understood that the subjects should get something in return for their support to the ruler; this something being the protection of 20 Even dictators have to rely on some degree of public support. At least they will have to make an effort (often a very strong effort) to counter political opposition. 21 To be living in a state of nature where life is brutal and short. 22 Related ideas could be found in the much more recent philosophy of John Rawls. See Rawls, John (1971) A Theory of Justice, Cambridge, Massachusetts: Harvard University Press, a popular supplier of thoughts for human rights theorists. 23 Mauss identifies three types of obligations: the obligation to give, the obligation to receive, and the obligation to reciprocate. See Mauss, Marcel (1990 at 39) The Gift: The Form and Reason for Exchange in Archaic Societies, London: Routledge.


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their basic rights. According to such a model human rights become a crucial device to harness the power of the ruler.24 Whereas the idea that human rights make up the flip side of the “might coin” makes perfect sense within a political system based on legal-rational authority25, it may not do so in Indonesia.

4. Power and Human Rights in Indonesia It is fair to classify Indonesia as a democratic state with all the institutional paraphernalia that follows: the separation of powers between the legislative, executive and judicative branches of government, a two chamber parliament, and “a million” governmental and semi-governmental commissions. Still, in their quest for power political leaders and candidates for political offices continue to flirt with ancient sources of power (such as visiting religious shrines); they seek blessings from religious leaders; make alliances with strong-men (today, many politicians are themselves business people, or strong-men such as ex-generals); and often they have no or at best very unclear political programs. At mass rallies and other festivities organized in order to win supporters, the political message seems to be left in the background, while popular entertainment acts dominate. In Indonesian politics, transactions (often of a very concrete economic type) tend to occur within patron-client based networks, i.e. between aspiring politicians and financiers that seek to reap benefits once the politician they support takes up his or her seat. Before promises made to the electorate can be fulfilled, debt to the financers has to be repaid. From all this, and based on political discussions with people from different walks of life in several parts of Indonesia, it is my clear impression that many among the Indonesian public do not submit to a conception of the link between political power and rights based on the idea of the social contract (which I

24 “Human rights are seen as a countervailing force to the exercise of totalitarian, bureaucratic and institutional power – widely identified as the greatest threat to the liberty of the individual and democratic freedom in this century”. See Brennan, Gerard (1999 at 457) “The Impact of a Bill of Rights on the Role of the Judiciary. An Australian Perspective” in Alston Philip (ed.) Promoting Human Rights through Bills of Rights: Comparative Perspectives, Oxford: University Press. 25 Here I use Weber’s term “legal-rational authority” which he distinguishes from “traditional” and “charismatic authority”. These three forms of authority make up his set of “legitimate forms of domination”. See Weber, Max (1947 at 324-341) “The Three Types of Legitimate Rule” in The Theory of Social and Economic Organization New York: Oxford University Press.

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outlined above). 26 I have, on the contrary, come across people expressing views indicating that they conceive of the state and its institutions in a manner resembling what Benedict Anderson described in his classic account of the idea of power in Javanese culture (1990).27 Anderson28 holds that power is conceived among the Javanese of as a kind of “divine energy which animates the universe”. This concentrated energy could be absorbed and accumulated by certain people; typical the satria (knights) in the Javanese shadow plays and the priyayi aristocracy more generally (1990: 50-51). Their possession of power, in the form of concentrated energy, could be discerned by their halus (refined) behaviour.29 Anderson contrasts the Javanese concept of power to what he calls “a Western concept of power”; a typically secular and materialist concept where

26 It should be noted that Indonesian voters have demonstrated admirable maturity and ability to hold politicians accountable through elections. This is one of the most encouraging characteristics of the Indonesian democratization process. Whether this, in time, will lead to a change in the attitudes toward governance and political power among the public is quite possible. Such a pattern may already be emerging. 27 As Anderson points out; conceptions of power resembling those described as Javanese may indeed be found far beyond Java. See Anderson, Benedict (1990 at 19) “The Idea of Power in Javanese Culture” in Language and Power. Exploring the Political Cultures in Indonesia, Ithaca: Cornell University Press. One idea that I commonly heard expressed by Malays in Kepulauan Riau during fieldwork there in the mid 1990s was that people in power were in possession of “kelebihan”, an inherent quality that had earned them their superior position. For a recent debate on Anderson, see Hughes-Freeland, Felicia (2007 at 184-187) “Charisma and Celebrity in Indonesian Politics” in Anthropological Theory, Vol. 7, No. 2, pp. 177-200. 28 Anderson has been criticized for picturing the Javanese as far more metaphysically and cosmologically inclined than what could reasonably be substantiated. (See for instance Antlöv, Hans and Hellman, Jorgen (Eds). 2005. The Java that never was: Academic Theories and Political Practices. New Jersey: Transactions Publishers.) The Javanese are no mono-vocal unit. Constituting an ethnic group of some eighty million people, the Javanese are as diverse in their life stance as the Germans or the French. Among the Javanese you will find subalterns, artists, cultural preservers or inventors, fledging intellectuals, people belonging to national political, religious or military elites, renegades and political rebels. Being an ethnic group with high mobility and vivid exchange with other groups, the Javanese are among the most non-traditional peoples in the region. At the same time, among the Javanese we would find people who are extraordinarily traditionally oriented. Whereas many may see themselves as Javanese, others may not appreciate having such metonymical generalized characteristics attached to them, particularly, when such characteristics are fixed to them from above and by outsiders. 29 Such ideas of power are not exclusively Indonesian, nor Asian. In an archetypal Western (although many similar stories may be found in many parts of the world) story like Disney’s version of Cinderella, similar ideas are depicted. In this story a powerful magic object, the Fairy Godmother’s wand, is the source of power (and indeed also political power as this object plays a central part in the quest for marrying the prince), and Cinderella’s stepsisters Anastasia and Drizella’s behaviour could by any standard be classified as kasar (unsophisticated, the opposite of halus, refined).


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power is derived from various sources, such as ample financial resources, large populations and stacks of arms. Anderson presents four axis of comparison where the Javanese concept of power (in contrast to a Western) stands out due to the following features: power is concrete; power is homogeneous; the quantum of power in the universe is constant, and finally (and particularly relevant in this connection); power does not raise the question of legitimacy.30 Since power in a Western perspective has its source in the social domain; power immediately raises the question of legitimacy. With a traditional Javanese concept of power, on the other hand, the source of power is not found in the society, and therefore the authorities do not have to consider how they should act towards the people in order to maintain their power. Whereas, a lot of Indonesians undoubtedly view political power primarily in the light of democracy and popular vote, kings that are given titles like ‘the nail of the universe’ like Solo’s former Sultan Pakubuwono, or “the one who holds the universe in his lap" like Sultan Hamengkubuwono in Yogyakarta do not have to enter into a pact with their subjects in order to remain in power.31 Since being “above the law” is part of what distinguishes the ruler from his subjects, a traditional king would enjoy privileges such as sovereign immunity. More than having their mandate from the people, traditional rulers in Indonesia are seen as being in an intermediate position between man and the deities; the sovereigns are the peoples’ “representative” vis-à-vis the supernatural world, or rather vis-à-vis the potent forces of divine character dwelling in this world.32 The ruler is also the peoples’ shield against the forces of nature. If the sovereign is perceived of as taking part in a transaction, this would be one between him and these supreme forces, not the people.33 Both the earthquake that hit

30 Id. Anderson 1990, at 22-23. 31 Interestingly, the Sultan of Yogyakarta has proposed that the office of Governor of Yogakarta should no longer automatically be held by the Sultan, but become subject to public election. In the 2009 general elections, the Sultan fronted the campaign of Partai Republika Nusantara or RepublikaN. Quite a paradox, one could say. 32 It is important to notice that what we usually term the supernatural world is not seen as being divided from the natural world, but rather as being an immanent part of the natural world. The idea of a multifaceted, non-transcendental deity inhabiting the universe, or that God is not set apart from his creation, is a feature common to religious perceptions in Southeast Asia. See Gell, Alfred (1995 at 25) “Closure and Multiplication. An Essay on Polynesian Cosmology and Ritual” in Daniel de Coppet and André Itenanu, Cosmos and Society in Oceania, Oxford: Berg Publishing; Anderson (1990 at 70). 33 In Thai, the personal pronoun used when addressing the king is “khapraphutthachao” meaning “slave of the Lord Buddha”. See Collier, Jane, David Engel and Barbara Yngvesson (eds.) (1994 at 477) “Dynastic Realms and Secular States. Comments and Discussion” in Law and Society in Southeast Asia, Law & Society Review, Vol. 28, No. 3.

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Central Java in 2006 and the volcanic activity of Mt. Merapi in the same area were by many locals seen as connected to the relationship between the Sultan and the Queen of the South Seas, a legendary female deity imagined to inhabit the sea south of Java.34 Such ideas of power provide us with a very different account of why a ruler is in power than would a Western, post-enlightenment concept of power based on the idea of the social contract. Hence, in a society where the idea of power is not related to the notion of the social contract, the idea that human rights claims could be made by the people in return for letting the ruler stay in power will not find much foothold. During his rule, former president Suharto was seeking to give hand-outs to the people from the abundance of wealth that he had accumulated around him, arguably, due to his king-like charisma. When public funds were transferred to a lower level of administration, this transaction was put on display through public rituals where the audience was left to believe that the funds were granted by the President himself. Also, the Indonesian people received his kind gifts directly: a cow here; a set of cooking utensils, cutlery or dining service, enough to host a couple of hundred guests at a wedding there. The position as benefactor places no obligations upon the ruler and causes no debts that he has to pay back to the people. On the contrary: while knowing that the government would be inclined to use coercive means if disloyalty were to be publicly expressed, such transactions left the people with a duty to pay back by being loyal. Because of the direction of this transaction, the duties are all on the side of the people and the rights on the side of the government. Looking again at the order of exchange between the ruler and his subjects, we see that the people find themselves on the wrong side of the transaction, deprived of their rights, stuck with the obligations. This transaction represents an inversion of the image of the social contract, whereby the people and not the state now have become the “duty bearers”.

Through such terminology, the speaker metaphorically renounces his rights vis-à-vis the ruler. In traditional Malay, the term patek, meaning little dog was used as personal pronoun first person (I) when the speaker addressed a person of king (rajah) status. See Abdullah, Sulaiman (1994 at 478-479) “Comments and Discussion” in Collier, Jane, David Engel and Barbara Yngvesson (eds.) (1994) “Dynastic Realms and Secular States.” in Law and Society in Southeast Asia, Law & Society Review, Vol. 28, No. 3. Slave (hamba) could be applied similarly. 34 See Berger, Sebastien. 03.06.2006 “Quake survivors thank Queen of the South Seas for deliverance” at http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2006/06/04/ wquake04.xml


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However, the Indonesian President, in the very same manner as, for instance, the Finnish President, is in power because he has been elected. If one wishes to go beyond the simple instrumental reason for him, and her, being in power one could make some assumptions about their personalities and their career paths which has brought them into their respective positions. From a very different perspective one could assert that the President is in power due to his wahyu; the divine radiance associated with power in traditional Javanese thinking. No doubt, fewer Finns than Indonesians would explain their President’s rule in such terms.35 A traditional perspective on political authority would not link the rule of the sovereign to a formal mandate that is the outcome of an imagined process of negotiations with the people. Ideal images like the “just prince” (ratu adil) of Javanese mythology, or “the tongue of the people” (lidah rakyat) (former president Soekarno’s self-ascribed title) do not assume that the legitimacy of the ruler’s claim to power come from the people. Such models may have in them that the ruler should be governing in a fair manner, benefiting his subjects, but this does not imply that the people can claim to be rights holders, and accordingly that the ruler should become burdened with duties, at least not human rights obligations. Rulers may still have all kinds of other obligations, particularly the obligation to provide for the people and redistribute their wealth. However, such obligations are not seen as part of a system of checks and balances that are derived from abstract ideas about the fundamental rights of the people.

5. Tensions between Islam and Human Rights? Apart from not tying well in with European, post-enlightenment models of political power and systems of government and their inherent ideas regarding the relationship between ruler and subjects, acceptance of human rights in Indonesia is also hampered by a conceived incompatibility between human rights and Islam.36 At a seminar in Indonesia attended mostly by lecturers teaching Islamic law, an elderly scholar from West

35 It would not be unlikely that someone observing the declining popularity of a political leader in a Western country would state that “He has lost it”. This “it” would then be referring to some unnameable charismatic quality that was vital when the leader first entered the office. Former British Prime Minister Tony Blair could be a case in point. 36 The idea that the modern nation state is less suited as a framework for realising peoples’ inherent rights than Islam has been popularised among others by Sayyid Abul Ala Maududi, founder of the Pakistani Islamic political party Jamaat-e-Islami. See Haq, Farhat (2001 at 243) “Jihad over Human Rights, Human Rights as Jihad: Clash of Universals” in Bell, Lynda S., Andrew J. Nathan and Ilan Peleg (eds.) Negotiating Culture and Human Rights, New York: Columbia University Press. Maududi’s works are widely read in Indonesia.

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Sumatra received much applause when he suggested that human rights were part of a scheme that encourages egoism and greed, characteristics he attributed to the West. In another setting, a religiously devout public prosecutor, who interprets his role as a legal practitioner in the broader light of Islam, expressed that he more and more tended to see international human rights law, international humanitarian law and international criminal law as haram laws, not really fitting for Muslims. International law did not serve its purpose, he argued, as it did not further justice or other Islamic virtues like respect, tolerance, mercy and honesty. What he felt was an unfair application of international law, latest in relation to the US invasion of Iraq had convinced him of this. An example that would underpin his new-found position would be the observation that whereas the bombing of innocent civilians from high altitudes seemed to be allowed, legal action against heresy was outlawed. Interestingly, the hesitant position towards human right found in some Islamic circles37 tends not to accentuate the incompatibility between Islam and basic human rights in particular. On the contrary, its advocates argue that all real rights are already catered for by Islam. What seems to trigger the vigilant attitude towards the international human rights regime is rather a perceived competition between the ideology of human rights and Islam. Human rights are conceived of as a secular and inferior substitute for religion; an aspiring asas tunggal (sole basis), an alien non-religious alternative ready to replace Pancasila (the state ideology of Indonesia) as the foundation of the Indonesian state, or rather, ready to replace Islam as the lenses through which Pancasila should be read. Much of the Indonesian legal vernacular has its origin in Arabic, the language of Islam, so also with human rights. It is possible that this way of phrasing human rights at some point was thought to make human rights more easily appreciated by the larger public. However, through this, the concept of human rights was drawn into the religious domain where it came to be seen as being in a rival (and possibly conflicting) position vis-à-vis Islam. The Indonesian term for human rights is Hak Asasi Manusia, or HAM for short.38 Hak Asasi Manusia is commonly translated into English as Basic Human Rights. To take the last term first, manusia meaning Man or human being is a rather elevated concept with spiritual

37 “Islamic circles” in Indonesia could include everyone from the Liberal Islam Network to Hizb ut-Tahrir. What I am referring to here would be Muslims who publicly support human rights and not proclaimed conservatives. 38 Deliberately or not, in English the abbreviation for human rights ‘HAM’ is of course also a pork product, as haram as can be, unsuitable for consumption by Muslims.


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connotations. Manusia is Man as God-created being, of the same order, although different from God’s other creatures such as malaikat (angels) and jinn (spirits). Indonesian also has a specific (and also more mundane) term for humans namely orang meaning ‘person’ or orang-orang meaning ‘people’. The word hak has entered the Indonesian language from Arabic (haqq). The concept is known for scholarly Indonesian Muslims from the field of Islamic Law where a well known distinction for them is that between the rights of Man and the rights of God (huquq Allah). To take the middle word asasi as well, its meaning is fundamental, essential or “of a higher order”, rather than basic (in the sense simple). In combination what we get is a concept that more appropriately could be translated as “the fundamental rights of Man” rather than “basic human rights”. This adds to the perception that human rights pretends to be somehow a-priori, God-given and transcendental. Such ontologically oriented or almost metaphysical human rights rhetoric is also quite common among those promoting and teaching human rights internationally. An Asia-Pacific web page from Amnesty International39 typically present human rights as ‘inalienable’, ‘indivisible’ and ‘interdependent’; they are “standards without which people cannot realize their inherent human dignity” and “human rights values are rooted in the literature, values and religious teachings of almost every culture”. Paradoxically, presenting human rights this way may make them seem less desirable to some people. In the shape of a pseudo-religion, human rights emerge as a real contender to people’s current world views, thus threatening to replace whatever religious or traditional beliefs people adhere to at present. In Indonesia different religions have entered over the last two millennia and many elements of these religions have been absorbed into peoples’ belief systems.40 With these changes of religion, from Buddhism to Hinduism and then to Islam, came new sources for legitimizing the power of the rulers. When the king converted, or when a fresh throne pretender with a new religion conquered the throne, it was

39 See http://asiapacific.amnesty.org/apro/aproweb.nsf/pages/knowHRdefinition 40 Through the centuries Indonesia has become a patchwork of religious denominations, some indigenous, others of Semitic, Indic and East Asian origin. Although Islam is the dominant religion, large geographical areas of the archipelago are dominated by Christians. This diverse religious geography has created a need for the adherents of minority religions to have their rights protected. Similarly, it made it necessary for the Indonesian state to approve of the different religions in order to secure widespread support for the nation-building project. Thus “faith on the one and only God” became the first principle of the national ideology Pancasila. In effect, adherence to a monotheistic religion is seen as a necessary prerequisite for possessing the national spirit, while those professing poly-syncretism or animism have been looked upon with suspicion.

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time for a new era, and the subjects of the new ruler followed suit and embraced the new religion. The religion of the people followed that of their ruler.41 Human rights as well as other “alien” ideologies such as liberalism or Marxism appear as if they are endangering people’s entire belief systems; the comprehensive world view counting for the relationship between the material and the spiritual world, moral and politics. If such ideas are allowed to substitute religion as the ideology legitimizing power, soon religion itself may be left in their shadow. To embrace human rights would necessitate a rethinking of the whole state-God-people complex. Instead of making human rights more easily adaptable, the prospect that human rights are universal in the ontological sense make them appear as a possible threat to devotees of “other faiths”. If human rights and Islam are seen as two competing belief systems, the question the devotees eventually have to ask themselves is whether the universality of human rights takes supremacy over that of the world religions? Is it the religions that need to reinterpret their tenets if they are in conflict with human rights, or should human rights be interpreted in view of religion? Among Indonesian Muslims much effort has been put into trying to find direct correspondence between human rights and Islam.42 This search extends from the line of reasoning that if both Islam and human rights are universally true, these two “belief systems” ought to outlaw and allow the same acts. Logically, if some of the principles of human rights are found to be in conflict with Islam, both belief systems cannot be true. Although Indonesians are known to be flexible interpreters with the ability to fuse apparently incompatible concepts when necessary, such reconciliatory efforts require a large portion of good will. In a climate where human rights are understood within the context of neo-colonization and

41 Whereas these changes did not bring about the kinds of religious wars that took place in Europe throughout the Middle Ages, surely these changes would have appeared as dramatic for those living through these periods of transformation. Also, enclaves where the old religion held sway would still exist and the dogmas of “the new religion” would necessarily be interpreted in light of perceptions derived from the belief system on the wane. 42 This search for direct correspondence between human rights and Islam has left many a human rights-inclined Indonesian Muslim in bewilderment. Those with a particularly flexible attitude and a positive leaning towards the West, as well as a taste for modernity and that which goes with it, might find the necessary correspondence between the tenets of Islam and human rights. Those with a more critical attitude would also scrutinise “the messenger” and see both whether the messenger and what he represents qualify as particularly pious; whether words and deeds fit together. As in most other instances, actions count more than words when such evaluations are made.


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imperialistic efforts to sustain Western hegemony, such good will is sometimes lacking. Among devout believers, laws made by man are deemed not only as having less legitimacy than laws made by God, but even as potentially sinful because they are seen as attempts to substitute God’s sovereignty with Man’s authority, thus as attempts by Man to replace God. The dilemma for many Indonesian Muslims then becomes: is human rights law Man-made or God-made? El Fadl has pointed out that:

Muslim jurists argued that law made by a sovereign monarch is illegitimate because it substitutes human authority for God’s sovereignty. But law made by sovereign citizens faces the same problem of legitimacy. If in Islam, God is the only sovereign and ultimate source of legitimate law, how, then, can a democratic conception of the people’s authority be reconciled with an Islamic understanding of God’s authority?43

The road many of those who approach human rights from an Islamic perspective embark upon is to start searching for evidence that the sources of human rights can actually be traced back to the Koran. If such a link can be substantiated, this then becomes a means to establish the legitimacy of human rights.44 Accordingly, finding mismatches between human rights and Sharia would disconfirm the truthfulness of human rights. Human rights are a recognizable legal category for many Muslims. However, the way human rights appear within a larger framework of law, moral and politics make them seem as contradictory to the principles found in Islamic legal philosophy. Islam literally means “submission to Allah”, and one of Islam’s most distinguishable features is that it places duties or obligations upon humans. As a Muslim you have the duty to pray, the duty to pay alms to the less well off, the duty to fast during Ramadan, to go on pilgrimage (hajj), etc. A well known distinction from the field of Islamic Law is that between the rights of Man and the rights of God (huquq Allah). Whereas human rights, to lay it on thick, only afford individuals with rights, put the burden of obligations on the state and ‘leave out’ God altogether, Islam retains some rights exclusively for God: “These rights belong to God in the sense that only God can say how the violations of

43 See El Fadl, Khaled Abou (2003) “Islam and the Challenge of Democracy. Can individual rights and popular sovereignty take root in faith?” in Boston Review. April/May 2003, http://bostonreview.net/BR28.2/abou.html 44 On one occasion, I observed a lecturer presenting a qualitative comparison between references to human rights in the Koran and the Bible, arguing something along the line that the Koran had a 5.4 higher ratio of human rights conformity than the Bible.

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these rights may be punished as only God has the right to forgive such violations”.45 In the Indonesian context, one way which God’s commands are interpreted is that they put obligations on people with regard to their behaviour vis-à-vis other people. Virtues like solidarity and compassion are associated with the rules prescribed by religion. The well-being of society requires that people, God’s subjects, fulfil their duties towards their fellow citizens and God. Morally correct behaviour is one where people fulfil their duties. Come the propagation of human rights, a system that holds no place for God, releases Man of his duties – the very directions that bring about a harmonious society through the provision of clear guidelines about peoples’ communal responsibilities – and replaces this with a system that places emphasis on the rights of the individual!

6. Conclusion: Human Rights within the Cultural Framework of Indonesia

As I have argued above, the difficulties in coming to terms with human rights in Indonesia could be seen as related to certain cultural features, such as conceptions of power, ideas regarding political rule, and the notion of law and rights that are part of particular religious belief systems. Thus, a resistance towards human rights could be seen as the result of having situated human rights within the realm of moral rather than constitutional theory and public administration, and thus unintentionally having repositioned human rights’ promotion from the field of law to that of moral philosophy. Does this observation then underpin the Asian values stance? Firstly, in all skilful deceptions there is an element of truth, so also with Asian values. Cultural conceptions favouring collectivism, stratification, hierarchy, submission and obedience may indeed be part of the outlook of many Indonesians. However, even if such conceptions could be exploited and put to use to legitimize authoritarian forms of government, they should not necessarily be interpreted as automatically generating hostility towards human rights. There is nothing in the observations above that suggest that human rights could or should not be implemented in Indonesia or that it should not be implemented to the fullest. Even if there was some truth behind the stereotype that Indonesians tend to be subservient, servile and humble, their cultural burgeoning could still be better provided for if they

45 See El Fadl, Khaled Abou (2003b at 334) “The Human Rights Commitment in Modern Islam” in Runzo, Joseph, Nancy M. Martin, and Arvind Sharma (eds.) Human Rights and Responsibilities in the World Religions, Oxford: One World Publications.


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were allowed to thrive under the rule of a regime protecting people’s human rights. The underlying norms that have been codified and turned into human rights conventions may not be the same throughout the world. Trying to find locally maintained values that correspond to every human right would most likely prove to be impossible. However, human rights are universal in as far as they apply equally for all people living under the jurisdiction of those states that have ratified the various international conventions. Thus, the universality of human rights can be grounded in their constitutional characteristics. As pointed out by An Na’im:

In particular, the concept of human rights as defined in the UDHR is essentially a “universalization” of fundamental constitutional rights as developed by Western countries, although the actual set of rights provided for in the Declaration surpasses what can be found under the constitutional system of any country.46

Human rights function as a supra-national constitution for those states which sign up for membership of the present international world order (without necessarily supporting the present power formation), in much the same way as states joining a confederation would have to submit themselves to the constitution of that political unit. Member-states and their citizens may not be completely convinced about all its content, but by ratifying human rights treaties the state accepts human rights lock, stock and barrel: human rights should also become the law of the land. In line with this, the human rights argument has strongest validity in states that attempt to present themselves as democracies and which have the ambition to participate actively on the international political scene. Therefore I propose to “repackage” human rights for the purpose of promotion accordingly. In societies where religion plays a far more central place in people’s life than secular societies and where international law has been portrayed as a part of a neo-colonial scheme through which the West seeks to exploit and dominate weaker states, it is quite natural that the universality of international human rights law is put into question. It is necessary to remind oneself of the fact that human rights and democracy are not the final culmination of human civilization, but useful although improvable 46 See An-Na’im, Abdullahi A. (2000 at 96) “Islam and Human Rights: Beyond the Universality Debate” in Proceedings of the 94th Annual Meeting, ASIL, The American Society of International Law, 94 ASIL Proc. 214.

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tools that if sincerely applied may contribute to make life more tolerable for many of those living under the governance of the kinds of states that today claim sovereignty over the territories that cover most of our earth’s surface. If human rights are treated as law regulating state behaviour, rather than divine prescriptions when they are disseminated to an Indonesian audience not only is it likely that they will be more enthusiastically received, they will also be far easier to put to use. The manner in which human rights have been conceived of in Indonesia should also have repercussions for the perception of human rights among those in the West who work within the human rights profession. Due to the dominant role of the positive law paradigm, human rights lawyers and others have come to think of law and morality as belonging to two separate spheres. In addition, for those having the European Court of Human Rights in Strasbourg as their main point of reference, human rights cannot be imagined as anything other than a legal mechanism developed for holding states accountable. In effect, this has led to a detachment of human rights from the moral sphere. Such a conception of human rights is no less awkward than separating it from the field of law.

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