HUMAN RIGHTS IN COVID-19 PANDEMIC

On social media the pandemic covid-19 is reported very hectic; some fled quarantine, some were angry with health protocol regulations, others demanded the president resign, pray for the president to die and say whatever they want in the name of human rights. Law enforcers such as the police often hesitate to act decisively for human rights reasons. There is confusion in the community in understanding human rights. So, it is interesting to study what human rights are and to what extent are human freedoms as individuals? This article was written aimed at providing information, hopefully providing benefits.

Basic concepts of human rights

There are two basic concepts of human rights namely the concept of natural rights and positive rights. Natural rights consider humans as individual creatures and their basic ideas from the theory of individualism. The theory of individualism considers humans as free individual beings. Hypothetical theory from John Locke said: ".... the state of Nature has a law of Nature to govern it, which obliges every one, and reason, which is that law, teaches all mankind who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty or possession's .... " The concept of human rights as natural rights was defined in Statute No.39 of 1999, in considering to point b. "That human rights are basic rights that are inherently inherent in human beings, are universal and lasting, therefore they must be protected, respected, maintained and should not be ignored, reduced or deprived of by anyone". The courtesy of this definition is that human rights are not gifts from the government but from God, the weakness is that freedom is absolute, it is difficult to measure the limits of freedom and very narrow only natural rights.

Positive rights consider humans as social beings, the definition of human rights are rights according to the law, which are made through the process of establishing the law of the community itself, both nationally and internationally. The principle of these rights is the agreement of the governed, that is citizens, who are subject to these rights and not only natural order which is the principle of the meaning adopted by the concept of natural rights. This statement is not only about the definition of natural rights, but rights according to law. From this second concept, a very close relationship between law and human rights appears. This doctrine opposes the idea of ​​human rights based on natural / natural law views. In the 19th century criticism of natural law came from Bentham, the utilitarian philosopher from England, that the theory of natural rights could not be confirmed and verifiable. How is it possible to know where those rights come from, what are their types and what they substances? According to Bentham, rights are biological children of the law, from the real law are also born real rights, not from imaginary law. Bentham's view was strengthened by Austin who said the existence of rights was born from state law.

The definition of "rights" in human rights is: "a scope of circumstances or areas of freedom of action where the government does not impose restrictions, so that individuals or individuals choose to use it themselves or not." So, rights are the realm of freedom, can be used or not; the extent of freedom will be determined by positive law in the country.

In the 1945 Constitution of the Republic of Indonesia, Chapter X (ten) point A, Article 28 point A-I contains human rights and Article 28 point J contains basic obligations. Article 28 point J (1) Everyone is required to respect the human rights of others in the orderly life of the community, nation and state. (2) In implementing their rights and freedoms, every person is obliged to submit to those stipulated by law solely to guarantee the recognition and respect for the rights and freedoms of others and to fulfill fair demands in accordance with moral considerations, religious values, security and public order in a democratic society.

Article 28 of the 1945 Constitution of the Republic of Indonesia, also stressed: freedom of association and assembly, expressing thoughts verbally and in writing and so forth are determined by statute. This is a basic human obligation that limits human freedom. So, Statute No.39 of 1999 concerning to human rights, it does not only contain a set of human rights, but also contains basic human obligations. The human rights statute contains a set of rights, that is about 104 human rights. Human rights statute is a basic law, which in the implementation of these rights requires other statutes. This is often forgotten. For example, using the right to choose a marriage partner in Indonesia according to the Marriage Statute. The right to freedom of travel or residence abroad must be in accordance with the Immigration Statute. The right to express thoughts and opinions is limited by the Press Statute, ITE Statute, and Demonstration Statute. The area of freedom is as large as permitted by law. The functions of law are protecting the area of ​​individual freedom and restricting the area of ​​individual freedom. The statute respects human nature both as individuals and social beings. Positive rights are in accordance with the principles of the rule of law.

Restrictions on Human Rights During the Covid-19 Pandemic

In emergencies human rights can be ruled out, except for the rights which are stipulated in Article 28 I clause (1) and Article 4 of the Human Rights Law: Right to life, right not to be tortured, right to freedom of thought and conscience, right to religion, right not to be enslaved, the right to equal before the law, and the right not to be prosecuted on a retroactive law basis. Article 28 point I (1) confirms that these rights are guaranteed to the broadest, so that the term non derogable rights is often used.

o   The right to life is guaranteed to the fullest extent in the Criminal Law (KUHP), even in a state of overmacht or in a forced state to defend life, so if an attacker is killed, this is the legal justification reason,

o   The right not to be tortured (physical or psychological attacks) is prohibited by the Criminal Law (KHUP) or the Statute of Household Violence.

o   The right not to be enslaved in economic is protected by Statute of the employment.

o   The right to equal treatment before the law contains the principle of non-discrimination regulated in the Criminal Procedure Code.

o   The right to freedom of thought and conscience, the right to religion; nobody cannot manage how people think, feel and believe in their religion. But expressing thoughts, feelings, it must be noted that the limitations of Article 28 of the 1945 Constitution, the Press Statute, the ITE Statute, and the Demonstration Statute.

o   The right not to be prosecuted based on retroactive laws. The law must not apply retroactively unless it benefits the defendant (Article 1 clause 2 of the Criminal Law). The law does apply in the future, so the law gives everyone the choice to obey it or not. For example, in a law that prohibits the distribution of drugs and for dealers threatened with death punishment, it means that if someone becomes a drug dealer means choosing to be prepared to be punished to death if caught.

The period of Covid-19 Pandemic was an emergency that restricted many human rights, such as the obligation to wear masks, keep a distance, and other health protocols when leaving the house. Restricting cultural rights in the burial of corpses of covid sufferers, carrying out religious activities that gather many people, such as the case: dangdut concert, mass cremation in Bali. There are restrictions on rights with general health considerations.

The Covid-19 Pandemic bring out an economic recession, so there is a contradiction in current interests. The State's obligation in fulfilling economic, social and cultural rights is very dependent on the resources owned by the state or government. The Indonesian government is trying to protect its people by preparing funds of around 600 trillion rupiah. The government, especially the President, cannot be impeached on the grounds of the policy of the Large-Scale Social Restriction (PSSB) in the context of fighting a pandemic, unless the President is proven corrupt or commits a crime, or commits a despicable act.

New Normal Policy is optional and is highly dependent on community compliance with health regulations / protocols. Social solidarity is needed to fight against the Covid-19 Pandemic and fight to fulfill the right to life and efforts to meet the necessities of life. The lower classes face the choice of dying because of Covid-19 virus or dying of starvation. Everyone must wisely avoid dying because of the Covid-19 virus and prevent dying from starvation. So, if you have to go to work please maintaining your health, wearing a mask, avoiding crowds by keeping a distance and washing your hands. Indonesia can certainly face this economic crisis. Stay optimistic to be free from of Covid-19 virus soon.