INTRODUCTION
Human
rights are the core material of the text of the modern state constitution (Indrawan, Marhaini, Kristhy, & Kristanto, 2021). The concepts of
crimes against humanity and severe human rights breaches are interwoven (Pérez-León Acevedo, 2017). Human rights are
generally regarded to be the rights of human beings derived from their inherent
humanity and dignity (Da Costa, 2014). Likewise, the
rights and obligations of citizens are one of the main materials regulated in
every constitution in accordance with the understanding of the modern state
constitution.
Human
rights have led to the implications of human obligations, in which human
obligations are parallel and converge into a single entity (Dewi, 2021). Human rights are
a set of rights inherent in the nature and existence of every human being as a
creature of God Almighty and is His gift that must be respected, upheld, and
protected by the State, Law, Government, and everyone, for the sake of honor and protection of human dignity. That is, what is
meant by human rights are rights inherent in every human person, rights that
have been possessed by a person since he was in the womb and human rights can
apply universally.
It
is necessary to educate all Indonesians about human rights (Arifin & Lestari, 2019). In Indonesia,
when reforms took place, one of them brought back the debate about the
constitutionality of protecting human rights (Susanto, Kristhy, & Kristanto, 2021). Before the amendments
were made (before the reform period), the 1945 Constitution could be said to
not explicitly include guarantees for human rights. Even if it can be
considered that the 1945 Constitution also contains several aspects of ideas
about human rights, what is formulated in the 1945 Constitution is very vague
in nature. After the Amendment to the 1945 Constitution, especially the second
amendment in 2000, the provisions regarding human rights in the 1945
Constitution have undergone very basic changes. The material which originally
only contained seven provisions which also cannot fully be called guarantees of
human rights, has now increased significantly, so that the formulation becomes
complete and makes the 1945 Constitution one of the most complete basic laws
containing protection of human rights.
The
ratification of the Second Amendment to the 1945 Constitution in 2000, new
material on the basic provisions on human rights in the 1945 Constitution is
contained in Article 28A paragraph (1) to Article 28J paragraph (2), and among
these arrangements are also regulated regarding guarantees for the protection
of children's rights. Article 28 B paragraph which reads: "Every child has
the right to survive, grow and develop, and has the right to protection from violence
and discrimination". The provisions of Article 28B paragraph (2) contain
two principles, namely: (i) Every child has the right
to survive, grow and develop; and (ii) Every child has the right to protection
from violence and discrimination.
Thus,
the existence of children's human rights in the constitution guarantees
normative protection and requires real implementation from all parties, not
only the state to provide protection for children's human rights (Kristhy & Satrio, 2022). Because, children
are an inseparable part of the survival of human life and the sustainability of
a nation and state. In order to be able to be responsible for the
sustainability of the nation and state, every child needs to have the widest
opportunity to grow and develop optimally, physically, mentally, and socially.
For this reason, it is necessary to make efforts to protect children's welfare
by providing guarantees for the fulfillment of their
rights without discriminatory treatment.
The
state upholds human rights, including children's rights which are marked by the
guarantee of protection and fulfillment of children's
rights in the 1945 Constitution of the Republic of Indonesia and several
provisions of laws and regulations both national and international (Kristhy, Hawin, & Triyana, 2019). This guarantee is
strengthened through the ratification of the international convention on the
Rights of the Child, namely the ratification of the Convention on the Rights of
the Child through Presidential Decree Number 36 of 1990 concerning Ratification
of the Convention on the Rights of the Child (Convention Regarding the
Rights of the Child.)
State,
Government, Regional Government, Community, Families and Parents are obliged to
provide protection and guarantee the fulfilment of children's human rights in
accordance with their duties and responsibilities. treatment and opportunities
appropriate to their needs in in various fields of life, so that in carrying
out efforts to protect children's rights by the government, it must be based on
the principles of human rights, namely respect, fulfilment, and protection of
children's rights.
As
the implementation of the ratification, the Government has ratified Law Number
23 of 2002 concerning Child Protection, which has substantively regulated
several matters including the issue of children in conflict with the law,
children from minority groups, children from victims of economic and sexual
exploitation, Trafficked children, children victims of riots, children who are
refugees and children in situations of armed conflict.
Child
protection is carried out based on the principle of non-discrimination, the
best interests of the child, respect for the opinion of the child, the right to
live, grow and develop. Child protection systems have developed a holistic
perspective of child outcomes that incorporates child well-being in addition to
child safety and permanence (Wulczyn, Parolini, & Huhr, 2021). In its
implementation, the Law has been in line with the mandate of the 1945
Constitution of the Republic of Indonesia regarding the guarantee of human
rights, namely that children as human beings have the same rights to grow and
develop. Even though the legal instruments have been owned, in the course of
the Law Number 23 of 2002 concerning Child Protection has not been able to run
effectively because there is still overlap between sectoral laws and
regulations related to the definition of children.
On
the other hand, the rise of crimes against children in the community, one of
which is sexual crimes, requires increased commitment from the Government,
Regional Government, and the Community as well as all stakeholders related to
the implementation of Child Protection. For the effectiveness of supervision of
the implementation of Child Protection, an independent institution is needed
which is expected to support the Government and Regional Governments in the
implementation of Child Protection.
Amendments
to Law Number 23 of 2002 concerning Child Protection also emphasize the need
for heavier criminal sanctions and fines for perpetrators of crimes against
children, to provide a deterrent effect, and to encourage concrete steps to
restore physical, psychological and social recovery to child victims and/ or
children. perpetrator. This needs to be done to anticipate Child victims and/or
Child perpetrators of crimes in the future do not become perpetrators of the
same crime. Regarding the guarantee of human rights in
the constitution (Ahsinin, 2010):
Human
rights guarantees in a constitution can be framed by the theory of granting
rights-plus (entitlement-plus theory) and the theory of the granting of
rights implemented through law (legally implemented entitlements theory)
1) The
first theory states that the granting of rights alone cannot form full-fledged
rights if there is no person in charge who is burdened with obligations.
Because the granting of rights does not fully guarantee the certainty of human
rights protection. This burden for those in charge is a plus added to the
granting of rights to produce a full entitlement.
2) The
second theory, requires that rights must be implemented through law. Therefore,
law enforcement practices are an effort to realize the existence of a right.
The legal existence of a right can be traced in local, national and
international legal systems and mechanisms.
Referring
to the theory above, the constitution is a condition sine qua non (condition
sine qua non is an event which is the result usually caused by several
events or circumstances or factors that are related to each other) for
guaranteeing the existence of human rights, including human rights. child
rights. With the regulation of children's rights in the constitution, the
existence of children's rights and child protection is getting stronger. The
inclusion of children's rights in the constitution carries further juridical
implications because every product of legislation must comply with
constitutional norms.
Based
on the description of the background above, the formulated problem of study is "How
is the guarantee for the protection of children's rights in the constitution in
Indonesia?"
METHOD
This
research is a legal research using a statutory approach (Irianto, 2009). The legal
materials used are primary, secondary, and tertiary legal materials which are analysed
using analytical descriptive.
RESULTS AND DISCUSSION
A. Conceptualization
of Guarantees for Legal Protection of Human Rights
Protection can be interpreted as efforts
to maintain, guarantee or safeguard the possibilities that can bring harm to
something. Legal protection is the protection of the dignity and worth, as well
as the recognition of human rights owned by legal subjects based on legal
provisions from arbitrariness or as a collection of rules or rules that will be
able to protect one thing from another (Hadjon, 1987).
Legal protection is a narrowing of the
meaning of protection, in this case only protection by law. The protection
provided by law is also related to the existence of rights and obligations, in
this case that is owned by humans as legal subjects in their interactions with
fellow humans and their environment. As legal subjects, humans have rights and
obligations to take legal action (Hadjon, 1987).
Legal protection is actions or efforts to
protect the public from arbitrary actions by authorities that are not in
accordance with the rule of law, to create order and peace so as to enable
humans to enjoy their dignity as human beings (Setiono, 2004).
Legal protection is activities to protect individuals by harmonizing the
relationship of values or rules that are manifested in attitudes and actions
in creating order in the social life between fellow human beings (Muchsin, 2009). Furthermore,
legal protection is something that protects legal subjects through applicable
laws and regulations and enforced its implementation with a sanction.
The protection and fulfillment
of the constitutional rights of citizens must be carried out in accordance with
the conditions of various citizens. The reality of the Indonesian people shows
that there are differences in the ability to access the protection and fulfillment of rights granted by the state. The difference
in ability is not based on the will of a particular group, but because the
social structure that develops tends to marginalize it.
The protection and fulfillment
of constitutional rights that are carried out without regard to the existence
of these differences will automatically maintain and even further the
differences. So that every citizen has the same ability and can obtain
protection and fulfillment of the same constitutional
rights, special treatment is needed for certain groups. Only with this special
treatment can equal treatment be achieved in the protection and fulfillment of the constitutional rights of every citizen.
Therefore, the 1945 Constitution guarantees such special treatment as the right
to obtain the same opportunities and benefits. Article 28H Paragraph (2) states
"Everyone is entitled to special facilities and treatment to obtain the
same opportunities and benefits in order to achieve equality and justice".
One group of citizens who because of their
condition requires special treatment are children. For this reason, it is
necessary to make efforts to protect children's welfare by providing guarantees
for the fulfillment of their rights without
discriminatory treatment. Because, children are an inseparable part of the
survival of human life and the sustainability of a nation and state. Therefore,
the guarantee of the protection of children's rights in Indonesia in the
constitution (UUD 1945) is implemented through the birth of laws and
regulations concerning children.
B. The
constitutionality of Human Rights in the 1945 Constitution
The constitutionality of Human Rights for
citizens occurs when human rights are guaranteed and regulated in the hierarchy
of the highest legal norms, namely the substance of human rights is placed in a
constitution or constitution. After the amendments to the 1945 Constitution,
the 1945 Constitution regulates much more completely than before the amendment,
from the beginning there were only 5 articles that regulated human rights
(rights to work and a decent living for humanity, freedom of association and
assembly and expression of thoughts orally and in writing, guarantees of
freedom of religion and belief, as well as the right to teaching, the right to
access to natural resources) into at least 17 articles (with 38 different
substance of rights) related to human rights (Wiratraman, 2007). The following
table describes the constitutionality of human rights in the Post-Amendment
1945 Constitution (Ahsinin, 2010).
The provisions of the 1945 Constitution
mentioned above, if detailed item by point, may include the following basic
principles:
1)
Everyone has the right to live and defend
his life and life;
2)
Everyone has the right to form a family
through a legal marriage and has the right to continue their offspring through
a legal marriage;
3)
Every child has the right to survive,
grow, develop, and has the right to protection from violence and discrimination;
4)
Everyone has the right to develop himself
through the fulfillment of his basic needs, in order
to improve the quality of his life and for the welfare of mankind;
5)
Everyone has the right to education, in
order to improve the quality of his life and for the welfare of mankind;
6)
Everyone has the right to benefit from
science and technology, art and culture, in order to improve the quality of his
life and for the welfare of mankind;
7)
Everyone has the right to advance himself
in fighting for his rights collectively to build his community, nation and
country;
8)
Everyone has the right to recognition,
guarantee, protection, and fair legal certainty equal treatment before the law
and the right not to be prosecuted on the basis of retroactive law;
9)
Everyone is free to choose a job, has the
right to work, gets remuneration, and gets fair and proper treatment in an
employment relationship;
10) Every
citizen has the right to have equal opportunities in government;
11) Everyone
has the right to citizenship status and everyone is free to choose citizenship,
has the right to choose a place to live in the territory of the country, leave
it, and has the right to return to the country;
12) Everyone
is free to embrace religion and worship according to his religion;
13) Everyone
is free to choose education and teaching;
14) Everyone
has the right to freedom to believe in beliefs, to express thoughts and
attitudes, according to his conscience;
15) Everyone
has the right to freedom of association (freedom of association), the
right to freedom of assembly (freedom of peaceful assembly), and the
right tofreedom of expression;
16) Everyone
has the right to communicate and obtain information in order to develop their
personal and social environment, and has the right to seek, obtain, possess,
store, process, and convey information using all available channels;
17) Everyone
has the right to protection of himself, his family, honor,
dignity and property under his control, and has the right to a sense of
security and protection from the threat of fear to do or not do something which
is a human right;
18) Everyone
has the right to be free from torture or other treatment that degrades human
dignity;
19) Everyone
has the right to obtain political asylum from another country;
20) Everyone
has the right to live in physical and spiritual prosperity;
21) Everyone
has the right to live (good and healthy), has the right to a good and healthy
living environment, and has the right to health services;
22) Everyone
has the right to get special facilities and treatment to get the same
opportunities and benefits in order to achieve equality and justice;
23) Everyone
has the right to social security that allows his/her full development as a
dignified human being;
24) Everyone
has the right to have private property rights and such property rights may not
be taken over arbitrarily by anyone;
25) Everyone
has the right to freedom of thought and conscience;
26) Everyone
has the right to be free from discriminatory treatment on any basis, the right
not to be enslaved, and the right to get protection against such discriminatory
treatment.
C. Constitutionality
of Guarantees for the Protection of Children's Rights in the 1945 Constitution
Regarding the legal protection of
children, the amendments made to the 1945 Constitution (UUD 1945) clearly
provide protection for human rights. Then Chapter XA of Human Rights, Articles
28A-28J reflects this. Meanwhile, children's rights are explicitly stipulated
in Article 28B: "Every child has the right to survive, grow, and develop
and has the right to protection from violence and discrimination". This is
a right of protection that must be guaranteed by the state in the state
process.
Based on Article 28B (2) of the 1945
Constitution which is amended implicitly reflects the contents of Article 27 of
the Convention on the Rights of the Child (CRC). What is important in
this context is that both Article 28B (2) of the 1945 Constitution and Article
27 of the Convention on the Rights of the Child (CRC) have linked life
and development measures. Thus it has created a "right" that goes
beyond the basic elements necessary for the survival of the child. The revised
1945 Constitution (Article 28B (2)) can be interpreted as a "fundamental
rights" (also known as "Basic Rights". When
translated into Indonesian, they are basic human rights or better known as
"Rights human rights”) (any rights explicitly or implicitly
guaranteed by the Constitution) are not “non-fundamental rights”.
These basic rights are further
strengthened by Article 3 of Law Number 23 of 2002 concerning Child Protection
which states:
Child protection aims to ensure the fulfillment of children's rights so that they can live,
grow, develop, and participate optimally in accordance with their dignity.
humanity, and receive protection from violence and discrimination, for the sake
of realizing quality, noble, and prosperous Indonesian children.
Based on the table above, the
constitutionality of children's rights has been guaranteed and regulated in the
1945 Constitution, namely:
1) Article
28B paragraph (2) which states that: "The right to survival, growth, and
development and the right to protection from violence and discrimination".
2) Article
34 paragraph (1) which states that: "Abandoned children are cared for by
the State".
The constitutionalizing of legal norms for
child protection has juridical implications, namely that every product of
legislation proposed and made by the legislature and executive must comply with
constitutional norms. Although the 1945 Constitution as a result of the
amendments has regulated the norms for the protection of children's rights, the
1945 Constitution has not fully accommodated the norms and principles of
children's rights which are the spirit of the Convention on the Rights of the
Child (Ahsinin, 2010). The Convention on
the Rights of the Child is framed by 4 principles as pillars that support the
implementation of other children's rights. The four principles include:
1) The
right to be treated equally (non-discrimination);
2) Right
to life, survival and development;
3) Decisions
based on the best interests of the child;
4) Respect
the child's views (participation).
Two of the 4 principles of the Convention
on the Rights of the Child, namely: (i) the principle
of the best interests of the child and (ii) the principle of respecting the
views of the child has not been accommodated in the 1945 Constitution. Thus,
the principle of the best interests of the child and the principle of
respecting the views of the child have not yet become constitutional norms. The
juridical implication is that because these two principals have not been
regulated in the constitution, the rights of children are not fully guaranteed
in the existing legal system. The opposite happens if all the principles of the
Convention on the Rights of the Child are accommodated as constitutional norms,
then all existing laws and regulations must refer to and must not conflict with
applicable constitutional norms. The State's full commitment to guaranteeing
children's rights requires the State to enshrine the principles and norms of
the Convention on the Rights of the Child in the constitution.
The constitution serves as a framework for
the formulation and implementation of national laws and policies to ensure the
realization of the protection and fulfillment of
children's rights. Furthermore, the constitutionality of children's rights
because they have the status of the highest standard of norms, the State's
actions formulated in laws and regulations can be ruled out for conformity with
the constitutionality of children's rights. This is in accordance with the
substance of the norms of Article 3 of the Convention on the Rights of the
Child which regulates actions taken by the government, social institutions,
courts, bureaucracy and the legislature must consider the best interests of
children. Thus, without a constitutional norm of children's rights, children's
rights cannot be guaranteed.
This commitment is a legal obligation of
the State as stated in Article 4 that the State must carry out legal reforms so
that the rights of children recognized in the Convention on the Rights of the
Child are fully realized. The main step in implementing the provisions of
Article 4 of the Convention on the Rights of the Child to provide protection
for children is to regulate children's rights in the constitution. This step
should be followed by building national legislation to develop a child
protection system because Indonesia is fully bound by the Convention on the
Rights of the Child after ratifying the Convention on the Rights of the Child
through Presidential Decree No. 36 of 1990.
Looking at the existing arrangements in
the 1945 Constitution which already has dimensions of regulating child rights
and child protection the 1945 Constitution is still in the category of
moderately committed. The Medium Commitment category is that there is
recognition of children as subjects of rights without specifically
acknowledging the State's obligations in providing protection to children.
However, there is content about the pattern and direction of child protection
even though it is not placed in special articles but is superimposed or
mixed with other human rights arrangements (Ahsinin, 2010).
This categorization looks at the following
indicators (Ahsinin, 2010):
1) The
regulation of the constitutional norms of children's rights is still general in
nature and does not detail the rights of children as regulated and guaranteed
in the Convention on the Rights of the Child;
2) The
regulation of the constitutional norms of children's rights is still placed
together with other human rights arrangements that have not been specifically
regulated;
3) In
addition, the 1945 Constitution has not regulated the pattern of social policy
as a direction for the protection of children in accordance with the
characteristics of their specific rights;
4) Furthermore,
the principle of the best interests of the child and the principle of
participation have not been recognized as constitutional norms.
The principle of the best interests of the
child is one of the principles that guarantees the effective implementation of
the Convention on the Rights of the Child and is a basic right for the
operation of other rights in the Convention on the Rights of the Child. Given
the importance of the best interest principle in the effective implementation
of other rights, making this principle a constitutional norm is a condition
sine quanon. This principle can be the legal
framework and the main foundation in formulating policies including in
legislative reform, budgeting, planning, and programming. In other words, the
principle of the best interests of children as regulated in Article 3 of the
Convention on the Rights of the Child is the main key for efforts to develop
constitutional norms and becomes a reference when interpreting contradictory
provisions so as to strengthen children as subjects of rights.
CONCLUSION
Regarding
legal protection for children, the amendments made to the 1945 Constitution
(UUD 1945) clearly provide protection for human rights. Children's rights are
explicitly stipulated in Article 28B of the 1945 Constitution. This is a right
of protection that must be guaranteed by the state in the state process.
Although the 1945 Constitution as a result of the amendments has regulated the
norms for the protection of children's rights, the 1945 Constitution has not
fully accommodated the norms and principles of children's rights which are the
spirit of the Convention on the Rights of the Child. Two of the 4 principles of
the Convention on the Rights of the Child, namely: (i)
the principle of the best interests of the child and (ii) the principle of
respecting the views of the child has not been accommodated in the 1945
Constitution. Thus, the principle of the best interests of the child and the
principle of respecting the views of the child have not yet become
constitutional norms.
Referring to
this, children as an integral part of the Indonesian people should be
recognized for their constitutional existence as the subject of full and equal
rights. The effort that should be made is to re-make minimal amendments to make
the principle of the best interests of the child and the principle of child
participation the constitutional norm. However, this legal reform effort will
be closer to the ideal condition if the very fundamental norms in the
Convention on the Rights of the Child are incorporated/transformed into
constitutional norms so that the 1945 Constitution will later become the
Constitution on the Rights of the Child.
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