Relationship between Human Rights and the Rule of Law

PERTANYAAN

What is the relationship between human rights and the Rule of Law?

ULASAN LENGKAP

This article is an English translation of Hubungan Hak Asasi Manusia dengan Negara Hukum which was written by Renata Christha Auli, S.H. and was published on Monday, 25 July 2022.

All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Before answering your question, it is important to first understand the definition of the Rule of Law.

Definition of the Rule of Law

Sri Soemantri believes that there is not a single country in the world that does not have a constitution. This is because the state and the constitution are 2 (two) institutions that cannot be separated from one another. The Rule of Law is identical to a constitutional state or a state that uses a constitution as a guideline in the life of a state, government, and society.[1]

Moreover, Budiono Kusumohamidjojo defines that it is very difficult to imagine a state, not as a state of law. This is because every country that does not want to be ostracized from the association of the international community towards the 21st century declares itself as a state of law. In addition, the law is also a way of settling various disputes, including political disputes.[2]

The following are the definitions of the Rule of Law according to experts:[3]

1. Wiryono

Rule of Law is a country where the authorities and government as state administrators carry out state duties subject to the applicable laws and regulations.

2. Joeniarto

Rule of Law is a country where the actions of the authorities must be limited by applicable laws.

3. Soediman Kartohadiprodjo

The Rule of Law is a country where the fate and independence of the people in it are best guaranteed by law.

According to those various understandings of experts, it can be concluded that all of them emphasized the submission of the authorities to the law as the essence of the Rule of Law. The essence of such a Rule of Law affirms that authorities are subject to the law.[4]

Elements of Rule of Law

The elements of the Rule of Law in development have undergone improvement. According to Ridwan H.R., the following are elements of the Rule of Law:[5]

1. Government systems are based on the sovereignty of the people;
2. The government must carry out duties and obligations according to laws or regulations;
3. The existence of guarantees of Human Rights for the citizens;
4. There is a sharing of power in the state/country;
5. The existence of supervision from judicial bodies (rechterlijke controle) that are independent. The meaning is, the judiciaries are truly impartial and do not come under the influence of the executive;
6. The existence of roles from the society or citizens to participate in supervising the actions and implementation of policies undertaken by the government; and
7. The existence of an economic system that can ensure the equitable distribution of resources that are needed for the prosperity of citizens.

Concept of the Rechtsstaat and the Rule of Law

Basically, the concept of the Rule of Law is a translation of different terms, namely Rechtsstaat and the Rule of Law. The Rule of Law is based on the Anglo-Saxon Legal System or the Common Law System, while the Rechtsstaat concept is based on the Civil Law System or European Continental Legal System.[6] Rechtsstaat ideology is implemented in European countries such as the Netherlands, Germany, France. Meanwhile, the Rule of Law is implemented in England and the United States.[7]

Also read: Differences in the Characteristics of Civil Law and Common Law Systems

According to the differences and characteristics of the two Rule of Law concepts, there are requirements for the Rule of Law to be said as Rechtsstaat or the Rule of Law. F. J. Stahl states 4 (four) elements of the Rechtsstaat, namely:[8]

1. Human rights protection;
2. Segregation/sharing of power;
3. Every government action must be based on the existing laws and regulations;
4. The existence of an independent administrative court.

Meanwhile, according to A. V. Dicey, the following are the requirements for a Rule of Law:[9]

1. Supremacy of law, i.e. the highest power in the state is the law;
2. Equality before the law, meaning that everyone has the same values and standings/positions before the law;
3. Constitutions are not a source of human rights, and if human rights are stipulated in the constitution, it means that human rights must be protected.

Although the two concepts are different, there are similarities between the Rechtsstaat and the Rule of Law, namely both of them acknowledge the sovereignty of law or the supremacy of law. Both also have the same goal, namely to protect individuals from the government or arbitrary authorities.[10]

Relationship between Human Rights and the Rule of Law

Sri Soemantri explains that the constitution as the basis of the state contains at least 3 (three) material contents. First, guarantees for human rights and citizens. Second, the establishment of a fundamental state constitutional structure. Third, the distribution and completion of fundamental constitutional tasks.[11]

The existence of the constitution leads to a situation in which the government cannot arbitrarily carry out the administration of the state. With the existence of a constitution, the protection of human rights has become a philosophy in the Rule of Law. The meaning is, in a Rule of Law, the protection of human rights is a necessity. Human rights then increasingly find space in the political system of democratic law.[12] This is because human rights and democracy are conceptions of humanity and social relations that are born from the history of human civilization in the world. Human rights and democracy can be interpreted as the result of the human effort to maintain and achieve human dignity. In fact, up until now, only the conceptions of human rights and democracy have been proven to best acknowledge and guarantee human dignity.[13]

The protection of human rights in the rule of law is also manifested in the form of constitutions and laws, which are then enforced through the judiciary as the executor of judicial power. Judicial power in a Rule of Law has an independent power and it is regardless of the influence of government power. The executives, the legislatures, and the judges’ supervisors do not have the authority to influence their will on the judge who is in charge of the case.[14]

From this explanation, it is clear that the relationship between human rights and the Rule of Law is a relationship that is not only seen formally but also materially. Formal relationships are seen from the protection of human rights, which is the main characteristic of the concept of the Rule of Law. Meanwhile, the material relationships are seen by every act of state administrators must be guided by the Rule of Law as the principle of legality. These constructions indicate that in essence, all policies and opinions as well as actions of the authorities are aimed at protecting human rights. Judicial power that is independent without being influenced by any power is also a form of protection and respect for human rights in the Rule of Law.[15]

Also Read: Human Rights: Definition, History, and Principles

In conclusion, the concept of the Rule of Law essentially places the idea of human rights protection as one of the most important elements. By considering the urgency of the protection of human rights, the constitution must contain the regulation of human rights so that the rights of citizens are guaranteed by the state. The relationship between human rights and the Rule of Law can also be seen in a formal and material manner. Formally, it can be seen from the protection of human rights as the main characteristic of the concept of the Rule of Law. Meanwhile, the material relationship is related to the act of state administrators that must be guided by the Rule of Law as the principle of legality.

These are the answers we can provide, we hope you will find them useful.

Reference:

1. Muntoha, Negara Hukum Indonesia Pasca Perubahan UUD 1945, Yogyakarta: Kaukaba Dipantara, 2013;
2. Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020;
3. Sunarso, Pendidikan Hak Asasi Manusia, Surakarta: CV. Indotama Solo, 2020.

---

[1] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 60.

[2] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 60.

[3] Sunarso, Pendidikan Hak Asasi Manusia, Surakarta: CV. Indotama Solo, 2020, pp. 88-89.

[4] Sunarso, Pendidikan Hak Asasi Manusia, Surakarta: CV. Indotama Solo, 2020, p. 89.

[5] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 61.

[6] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 61.

[7] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 61.

[8] Muntoha, Negara Hukum Indonesia Pasca Perubahan UUD 1945, Yogyakarta: Kaukaba Dipantara, 2013, p. 10.

[9] Muntoha, Negara Hukum Indonesia Pasca Perubahan UUD 1945, Yogyakarta: Kaukaba Dipantara, 2013, p. 12.

[10] Muntoha, Negara Hukum Indonesia Pasca Perubahan UUD 1945, Yogyakarta: Kaukaba Dipantara, 2013, p. 13.

[11] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 65.

[12] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 66.

[13] Sunarso, Pendidikan Hak Asasi Manusia, Surakarta: CV. Indotama Solo, 2020, p. 89.

[14] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 67.

[15] Serlika Aprita and Yonani Hasyim, Hukum dan Hak Asasi Manusia, Bogor: Mitra Wacana Media, 2020, p. 67.