Non-Derogable Rights in Indonesia: Between Constitutional Guarantees and the Political Reality of Power

Legal Literacy- Human rights (HAM) are inherent rights that are vested in every individual from birth, which cannot be revoked or reduced by the state under any circumstances [1]. Among the various rights, there is a special category callednon-derogable rights, which are absolute rights that cannot be restricted, suspended, or reduced even in a state of emergency. This principle has a strong foundation in various international human rights legal instruments, such asUniversal Declaration of Human Rights(UDHR) 1948 andInternational Covenant on Civil and Political Rights(ICCPR) 1966. Specifically, Article 4 of the ICCPR affirms that fundamental rights—such as the right to life, the right to be free from torture, and freedom of religion—may not be derogated from even in a public emergency that threatens the existence of the nation [2]. As a state party to the ICCPR, Indonesia has ratified the covenant through Law Number 12 of 2005. At the highest level, recognition ofnon-derogable rightsis explicitly reflected in Article 28I paragraph (1) of the 1945 Constitution:

“The right to life, the right not to be tortured, the right to freedom of thought and conscience, the right to religion, the right not to be enslaved, the right to be recognized as a person before the law, and the right not to be prosecuted on the basis of retroactive law are human rights that cannot be reduced under any circumstances.” [3]

This constitutional guarantee demonstrates the state's formal commitment to placing absolute rights as an integral part of its national legal system [4].

Analysis: Legal Guarantees of Non-Derogable Rights in Indonesia

Constitutional Basis: The Strength of Article 28I of the 1945 Constitution

The principlenon-derogable rightsin Indonesia has a very strong legal foundation. Article 28I paragraph (1) of the 1945 Constitution explicitly mentions which rights cannot be reduced under any circumstances [6]. This provision places absolute rights at the highest hierarchy as a constitutional norm (constitutional supremacy). This means that no laws or state policies can override them, even in emergency situations.

Harmonization with International Law: The Role of the ICCPR

Indonesia's commitment is strengthened through the ratification of the ICCPR with Law Number 12 of 2005. This ratification obliges the state to align its national regulations with international human rights standards. In practice, the ICCPR strengthens the position of Article 28I of the 1945 Constitution as the juridical basis for the protection of absolute rights and becomes an important reference in the mechanism ofjudicial reviewin the Constitutional Court [7].

Global Best Practices: Learning from Germany and South Africa

In comparison, several countries demonstratebest practicein protecting absolute rights. Germany, through its Basic Constitution (Grundgesetz), makes human dignity an "eternal clause" (eternal clause) that cannot be amended [8]. Meanwhile, South Africa regulatesnon-derogable rightsexplicitly in theBill of Rightsof the 1996 Constitution, which prohibits the suspension of the right to freedom from torture and slavery even during a state of emergency [9].