The Rights of Persons with Disabilities in Regional Human Rights Declarations and Conventions around the World

This article also appears at: http://www2.agendaasia.org/index.php/news/151-the-rights-of-persons-with-disabilities-in-regional-human-rights-declarations-and-conventions-around-the-world


In November, head of states of Association of South East Asian Nations ( ASEAN) will gather in Phnom Penh for the 21st ASEAN Summit. There, they are expected to adopt the ASEAN Human Rights Declaration (AHRD), which will represent a major milestone in the struggle for human rights in Southeast Asia, including for the human rights of persons with disabilities. Since the beginning of the drafting process, disabled people’s organizations have been involved in the consultation process with the drafting committee, the ASEAN Intergovernmental Committee on Human Rights (AICHR). They have lobbied, discussed and given inputs and suggestions to the committee on how to include the rights of persons with disabilities in the declarations. It is expected that the declaration will include several provisions on disabilities.

In the anticipation for the upcoming declaration, it is important for us to understand how other (and older) regional human rights declarations recognize disability rights. Such understanding will enable us to assess where we stand so far in terms of giving protection to the rights of persons with disabilities.

The oldest regional human rights declaration is the Organization of American States (OAS) Declaration on the Rights and Duties of Man, which actually predated even the Universal Declaration of Human Rights (UDHR). The OAS Declaration was adopted in April 1948 in Bogota, Colombia, whereas the UDHR was adopted by the UN General Assembly in December 1948 in Paris.

Interestingly , both the UDHR and the OAS Declaration, in regards to disability rights, seem to have almost identical wording.  Article 25 (1) of the UDHR says that:

“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.”

Whereas article XVI of the OAS Declaration says:

"Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living."

This seems to reflect the spirit of the time where the rights of persons with disabilities were not central to the contemporary understanding of human rights. Both declarations only mention disability in relation to the right to social security and services.  The European Convention on Human Rights (ECHR), which was signed in 1950 (and came into force in 1953), does not mention disability at all.

The African Charter on Human and Peoples’ Rights was much more progressive in terms of disability rights than the two older regional human rights mechanisms. Article 18 (4) of the charter recognizes that:

"The aged and the disabled shall also have the right to special measures of protection in keeping with their physical or moral needs."

At the time this charter was adopted by the African Union in 1981 this provision was considered to be very progressive. There are a number of reasons for this inclusion. One is the increased global recognition of the rights of persons with disabilities. The year 1981, the year when the Charter was adopted, was designated by the UN General Assembly as the International Year of Disabled People. Various developments in the African continent itself, such as the existence of numerous conflicts in the continent which left a significant proportion of the African population with disabilities, may also compel the drafter to include special provisions for disabled people. However, the Charter still uses the charity-based approach which focuses on providing protection and care. It does not put the rights of persons with disability as part of human rights.

The African Charter also has an additional protocol on Rights of Women in Africa (also called the Maputo protocol, which was adopted by the African Union in 2003). Article 23 of the Protocol recognizes the special rights of women with disabilities. It says:

The States Parties undertake to:
a) ensure the protection of women with disabilities and take specific measures commensurate with their physical, economic and social needs to facilitate their access to employment, professional and vocational training as well as their participation in decision-making;
b) ensure the right of women with disabilities to freedom from violence, including sexual abuse, discrimination based on disability and the right to be treated with dignity.

The most recent regional human rights instrument is the Charter of Fundamental Rights of the European Union. This charter was adopted in 2000 and by far the most progressive in terms of disability rights. It has a non-discrimination principle in Article 21 that includes disability, which says:

"Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited."

Even more progressive is article 26 which obliges the European Union members to:

"...recognizes and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community..." 

Looking at all the regional declarations and conventions, we can see a clear progression on the recognition of the rights of persons with disabilities throughout the world. The expectation is that the AHRD will be able to at least equal the other regional human rights instruments.

Links for all the regional human rights instruments:

The European Convention on Human Rights

The Charter of Fundamental Rights of the European Union

American Declaration on the Rights and Duties of Man

African Charter on Human and Peoples' Rights:

Maputo Protocol

Freewriting 1

Tools: Ballpoint and 2 pieces of papers
Time limit: 10 minutes
Location: AGENDA
Time: 4 PM


So i am trying this method called freewriting. I just looked it up in the internet, and it seems like fun. They say it’s a way around the mental blocks in writing, a way to find what you really want to express. I can write in any language. i was hesitating between writing in Indonesian or English, but then I decide to write in English. Why? Maybe because I want to improve my English writing skill. maybe this method could help me. 

I actually have heard about this method before and actually have tried it as well. But it didn’t go very well. I guess that’s because I tried using keyboard, rather than writing in a piece of paper. Now i realise that the core idea of free writing is to have time for your mind to wander freely, but at the same time not too much that it destroys spontaneity. the balance between spontaneity and formulating one’s mind is the key here and i cannot do it using keyboards because i type too fast. 

i realise that for the time being i have many things to say. i mean i read so many books and often times i find it difficult to find people  who want to hear what i have learned from those books. i know for certain that there are people who are interested in listening what i have to say, but they are not necessarily in my immediate circle. The only way for me to reach and to communicate with them is by writing. but often when i tried to write i find myself facing mental blocks. Suddenly my mind goes blank and I cannot really figure  out what to write. Maybe by using this method, I can start extracting my own minds. I can begin to understand what I really want to say and able to formulate them in a nice and clear way.

Note: I was pleasantly surprised to see this one turned out to be quite coherent. I did make some grammatical mistakes here and there, but they are negligible. Maybe because this is my first attempt doing freewriting on a piece of paper and I did write relatively slowly using pen, therefore my mind had time to formulate what I have to say. Anyway, it was really a pleasant exercise and I enjoyed it very much.

Beauty is Political

A few weeks ago, I heard a friend described a girl as a 'natural beauty'. I was really curious about what he meant, so I asked him. He said that he meant it to describe a girl who still looks beautiful even without putting make up. He also added that he prefers 'that type of beauty' compared to a more 'make-up oriented beauty'. 'Make-up oriented beauty' is his own words. I think it is self-explanatory, but just to make it clear: he meant it to describe girls who become beautiful because of their make-ups and clothes. Their beauty, therefore, is not just fake, but also false. A clever manipulation of colors and shapes.

The phrase 'natural beauty' intrigued me. My friend did make some interesting observations and comments. Most of his views are condescending towards women (not to mention underestimating them), therefore it is hard for me to agree. Yet I was intrigued mainly because I think beauty should have deeper meaning than what he described. He (and I think he is not alone) views beauty as something that can exist naturally and can be objectively recognized, appreciated and, therefore, valued by people. This is the real and true beauty. Opposing that is the fake and false beauty, one that aspires to be beautiful by using all sorts of aids and tools (make-up is one, fashion is the other), but when stripped from all those, it becomes non-beautiful.

Zhang Ziyi: typical Asian Beauty?

My problem with such view is especially with its core idea on 'true' or 'real' beauty. Is it true that beauty can be objectively recognized, appreciated and valued? Is beauty actually a natural thing at all?

I remember reading an article written by a Moroccan feminist, whose name I can't recall, on the topic of beauty. She describes a visit by a French friend to Morocco and she had to accompanied this friend. As they went around the town, she asked her friend which Moroccan girl he finds attractive. Her friend then pointed to several girls they encountered a long the way. She was really surprised because her friend apparently pointed to girls that Moroccans don't normally find as attractive.

She found this to be really curious and she mulled about this for a while. In the end, she draws the conclusion that the concept of beauty is never neutral and objective. She even went farther by concluding that beauty is political, meaning that the concept of beauty is decided by the ruling elite, and then followed and internalized by the ordinary people.

There are several ways to see how beauty is connected to politics. But first we need to understand that politics can be understood broadly, not just in terms of state politics. Politics can also be understood as part of daily relations between people. As people interact, each one tries to influence the behavior, attitude and actions of others. The act of influencing other people can also be broadly considered as politics. Some people call it as the politics of daily life. In this view, politics exist in all human relations and cannot be separated from any type of social interaction.

In such understanding of politics, beauty can be used as tool of influence. It is normally considered as fact that the more beautiful a person is, the more easier for him/her to persuade other people to follow his/her wishes. Most people are easier to be persuaded by somebody whom they consider attractive. Another way to look at this is the more a person thinks him/herself as attractive, the more confident he/she in influencing or persuading other people. Beauty, in this regard, is a political tool.

Typical Western Beauty?

The connection doesn't stop there. The meaning of beauty itself is an arena for political contestation between different and opposing groups who try to impose their values (or in this context, who try to impose their definition of beauty) to the larger society. There are competing views in the society on what constitute beauty. However, despite the contestations and opposing views on how to define beauty, there will always be a mainstream understanding of beauty in a society. Interestingly, the group (or groups) who holds political control of a society is usually the one who holds the power to define beauty. To see this, one only has to go to the center of power and see the people there. Chances are people we encounter there are people that that society consider as beautiful.

Take for example my experience a few weeks ago when I had to go to Sudirman. For those of you who don't know, Sudirman is the name of a street in the center of Jakarta with a lot of skyscrapers and tall buildings. Many of the top businesses establish their offices there. Sudirman is also close to major political centers. The presidential palace is just a few kilometers away. So is the parliamentary building. Not to mention the ministerial offices and foreign embassies. So one may say that Sudirman, and its surrounding areas, is part of Indonesia's center of power.

I went there by bus from my home in a suburb outside Jakarta. As people entered and exited the bus, I suddenly became aware of one very interesting thing. I noticed that the level of attractiveness of people was changing slowly. In Indonesia, you are considered to be more attractive if you have fairer skin or taller body, and I noticed that the proportion of people with these characteristics increased substantially as we were nearing Sudirman.

Okay. I admit I didn't do a careful measurement, so I can't really say that this is a scientific observation. Yet I really believe this observation is correct: that people in Sudirman, the center of Jakarta, tend to look more attractive and better looking (in terms of the features I have described above) than people from outside that area.

Why is that? I think the most logical explanation is because it is the center of power (business and economic power, to be precise), and a center of power has the capability to select and choose people to have access to it, to be included as part of the center, as workers mostly, but possibly also as spouses, lovers, business owners, and other roles. This process of selection is political in nature, because power is involved. One side is doing the selecting because they have the power to do it, and the other side tries to get selected so they can gain more power (economic, social, cultural or political) simply by getting closer to the center of power. The people I saw were there because they managed to pass this selection process, and because they were selected by people in power society put the label 'beautiful' to them.

Is this the most idealized type of woman?

One important note is that the concept of beauty that is being imposed by the current elites is a continuation of the concept of beauty that was imposed by the previous elites. In other words, it is not something just newly created today, but has been shared, transferred and taught by many succeeding generations. It experienced its own changes, for example, I read somewhere that people from 2 or 3 centuries ago considered women with big buttocks as beautiful, a view that modern people don't share. These changes and continuation are possible because its definition is always contested, as I have mentioned before. One thing for sure, though, that it is the dominant group who gets to define what should be considered as beautiful.

Returning to the phrase my friend used, 'natural beauty', I just think that the term simply doesn't exist, or to be precise it doesn't apply to human being. Beauty is actually a political and cultural concept, and therefore man-made, or at least its understanding and definition is always political and cultural, never objective and neutral. Beauty can never be natural. It is a site of political contestation,. (Possibly) it is also tool used to subjugate women by putting them into criteria-based categories. By categorizing women, by creating an 'ideal' category (which is beautiful women), the society is urging (pressuring?) women to strive for the ideal, robbing them of their independence and critical thinking. Perhaps.

But maybe I am thinking too much. After all, as I was browsing through Internet looking for pictures of beautiful women to be put on this page (see the pictures above), I found myself repeatedly attracted to the women in the pictures. What's the point of having this kind of awareness if myself cannot really escape from it?

A Personal note

After working for some time in the new office and writing so many reports and news articles for them, I realize that I really need to improve my writing skill. I realized that when I submitted a draft of our operational report which was immediately handed back to me with so many corrections and comments. There were so many of them,  I hardly recognized my original report in it.

I understand English is not my native language (and my boss too, obviously), but still I was a little bit shocked. I don't consider myself as an excellent writer, but I liked to think I'm not too bad. Apparently, I was wrong.

I never join any writing course. Not in Indonesian, let alone in English. All this time, I write without really thinking how to do it, only about what to write. I get mixed results because of that. Sometimes I am able to produce good writings, sometimes crappy ones. I never really bother. Besides, apart from writing several small articles for my previous office's homepage - which I did mostly in Indonesian anyway, a lot easier for me - I don't really regularly write.

But now, I  need to improve more on my writing. This new job apparently involves a lot of writing in English, with considerably greater variations from what I was used to before, ranging from activities reports, news articles, to research proposals. I need to find a good writing course to handle all those. After all, a good writing skill will be an excellent addition to my skills set.

Being Religious Minority in Indonesia

I’ve been keeping tracks on reports of religious violence towards minority groups in Indonesia for several years now. I follow them for several reasons. First is because of my human rights background, which means I am automatically interested in human rights issues, and religious freedom is obviously a human rights issue. Second, and no less important than the first one, is because this is personal for me. I am not a religious person. I don’t go to church that often, but to celebrate major events, and sometimes I even question my belief. However, I still consider myself as a member of a religious group – Christianity, which in Indonesia is considered minority. My family and some of my friends are Christians. That is why the plights of Christian people in this country affect me, more or less.

Looking at all the cases of the last few years, I have to say that I am really unhappy with the state of religious freedom in Indonesia. There seems to be a rise in intolerance (I prefer not to say a rise in radicalism here because I don’t think that all people who reject the rights of non-Moslems to worship are radicals, but they are certainly intolerant). We have cases of violence against minority groups, mass demonstrations to close house of worships, abuses, and so on.  There were even people killed because of their belief (see here).  

All these cases have created a certain feeling of abandonment in me. It feels like we are slowly being evicted out of our country, like we are no longer wanted. Even more unsettling is the fact that the government seems to not do much to prevent all those cases to happen. There is a growing perception amongst the minority groups that we are left to fend this on our own, that they do not really care whether we can worship the way we please or our way of life is being threatened. Add to that is the fact that it seems sometimes the government even take an active role in fanning the flames of these groups – these intolerant groups who want nothing else but the expulsion of all minorities out of Indonesia.

Take for example the latest case of the church HKBP Filadelfia, in Tambun, Bekasi. The local Bekasi government refused to obey the ruling by the High Court that says that the church Filadelfia should be allowed to continue its activities, repealing the local government edict of 2009 that banned the church to continue its worship service.  Somehow the case reminds me of similar unresolved case in Bogor of GKI Yasmin. In that case, the local Bogor government, refused to obey the ruling of the Supreme Court that allows GKI Yasmin congregation to continue worshiping in their building.

There are other similarities between the two cases. One, the two cases saw the active efforts by the local government, after getting pressures from several ‘religious’ groups, to stop a local church to continue its service. Two, in both cases, the central government, the one with the mandate to uphold the constitution, the rule of law and the protection of the human rights of all its citizens,  refuses to intervene. The central government chooses to ignore the matter, citing that the issue is of local concerns, forgetting that they have the responsibility to uphold the law and to protect their citizens. Three, there are thugs involved - 'religious' thugs. They block people to come to church. They hurl abuses and insults towards the members of the congregations, even throwing stuffs (there are reports of people throwing pee in bottles). 

Indonesian government claims itself as a democratic country. Apparently, their brand of democracy is closer to the ‘tyranny of majority’ rather than a true democracy, at least for now. Cases of religious intolerance, even violence, where the police and government refuse to do anything about it, seem to confirm this. I am always hopeful for the future of Indonesia, and I do love this country. However, I am worried that, unless decisive steps are taken soon, more and more Indonesian minorities will feel isolated, abandoned and left out; even feel discriminated. That may not bode well for our future. 

see these links for further info: 

http://www.thejakartaglobe.com/news/religious-groups-criticize-government-for-weak-support-of-religious-freedom/519144

http://www.humanrights.asia/news/ahrc-news/AHRC-OLT-009-2012#.T7n60jUiqO8.facebook

Is Indonesia a Democracy?

Democracy is a very difficult term. A simple definition of democracy is ‘the government by the people, of the people, and for the people’. An even simpler definition of democracy is ‘the rule of the majority’. Using these definitions, it seems almost certain that Indonesia is a functioning democracy. After all, it has all the mechanisms to ensure that the voice of the majority will be heard in (and influence) decision-making process. Election is one; clear separation and distribution of power is another. Maybe we can also add mass protest as one existing mechanism of democracy - by that definition - in Indonesia.

However, I do not think that democracy is only about the will of the majority. Many social movements in history – the seeds of democracy – concerned themselves about giving voice to the voiceless. Thus the first labor movement concerned themselves of giving rights to laborers who previously did not have rights, and the original women suffrage movement struggled to give women the rights that they previously did not enjoy, and so on. These movements and struggles would later on influence the way democracy is supposed to be done. They provide the contemporary democracy with one additional important defining characteristic: true democracy protects the rights of everyone and extends it even to anyone who was not protected before, regardless whether they are part of the majority or not.

From this point of view then we can start to question whether Indonesia is a truly functioning democracy or not. Because it seems that democracy in Indonesia only works in the first sense: to obey the rule of the majority, but it stutters when it wants to enter the next level of democracy: the protection of everyone’s rights, which includes minorities and the disenfranchised (religious minorities, persons with disabilities, homosexuals, etc).  Cases of religious intolerance, lack of access of persons with disabilities, violence towards homosexuals, and others, seem to highlight this reality of Indonesia’s democracy.  Before we can give protection and guarantee the rights of these groups, I think it is still a long way to go before we can safely say that we are a democratic country.

Yet I do think that Indonesia still has some hopes. For one thing, change is brewing. Economy is improving, and with that comes a better connection to (and understanding of) the outside world and, at the same time, of our inner self. People are beginning to challenge old and outdated beliefs, and are more willing to be a little bit more tolerant to differences in taste, in style, in preference, in opinion, and in political beliefs.  Indonesia has a long history of tolerance (although at the same time it has a long history of intolerance as well), and we can dig and focus on these long traditions to be used as a foundation to extend and expand human rights protection. To extend means to give rights protection to more groups, to expand means to enlarge the scope of rights we are currently enjoying. When this happens, then we can proudly say that Indonesia is a democratic country.

ICC: one verdict, ten years, $900 million, worth it?

Today ICC delivered its first verdict, 10 years after it was first established. It has used up to $900 million of expenditure in 10 years with just one verdict to show. With cases lining up to be tried many worry that ICC budget will keep going up significantly. Some begin to question ICC effectiveness and, even, usefulness.

I think such concern is justified, Yet, I believe that despite the cost it is worth it to have ICC as a permanent international court. The international world needs ICC as a mechanism to ensure prosecution for the worse international crimes. Without it, we will be left only with regional mechanisms, or international tribunals such as the ones for former Yugoslavia and Rwanda, and  everybody knows how expensive international tribunals can be. In fact they are actually more expensive than ICC. Whereas regional mechanisms have limited reach and scope. ICC is relatively cheaper than international tribunals and have wider reach and scope than the regional mechanisms.

In addition to that, ICC can play a larger role than just prosecuting cases. It can add pressures to governments to take actions to stop human rights violation by using its investigation and communication function, it can help shape public opinions, and many more.

ICC helps by shaping international law jurisprudence by its decisions (although we only have one so far, I am sure we will have more). Countries can refer to ICC to help decide human rights cases on their own.

Lastly, ICC is a noble human endeavor which should not be judged by how much it costs us. We sent human to the moon, probes to the farthest distance of the solar system, and we don't care about how much that cost us, because we believe that such endeavors will advance civilization and the human race. We should treat this ICC project with the same passion and belief. At the very least, I think it is better to fund ICC than to pay for more guns and bombs.

Yes. ICC is worth it.

Check this link for more info: http://www.icc-cpi.int/NR/exeres/A70A5D27-18B4-4294-816F-BE68155242E0.htm

ICJ to Decide on Hissene Habre's Case

Belgium has filed a case in the International Court of Justice (ICJ) to request Senegal to extradite the former president of Chad, Hissene Habre.

Hissene Habre is a former president of Chad from 1982 to 1990 before he was forced to step down by Idriss Deby. According to human rights activitis Habre was responsible for the killings and torture of thousands of people during his rule. After his fall, Habre went to live in Senegal and has stayed there ever since.

The first attempt to indict Mr. Habre was in the court of Senegal, but it was then ruled by the court that Mr. Habre cannot be tried there. The victims then went to Belgium who claims universal jurisdiction for international crimes (which covers genocide, war crimes, and crimes against humanity). In 2005, the Belgium court issued a ruling to arrest Mr. Habre for crimes against humanity. Since then, Belgium has been trying to extradite Mr. Habre from Senegal, but to no avail. The filing of the case to ICJ is the latest attempt by Belgium to bring Mr. Habre to justice. Belgium cites a duty for all states in the world in regards to international crimes to prosecute or to extradite alleged offender. Therefore, if Senegal does not want to prosecute Mr. Habre, it should extradite him to a country that will, which in this case is Belgium.

I find this case is interesting for a number of reasons.

First, because it represents a real test for the universal jurisdiction claimed by Belgium. If this succeeds, then it can set a precedent for other countries to follow Belgium's example, that is to claim universal jurisdiction for international crimes. If this happens then any country can put to trial anyone on international crimes charges, even if that person is a foreign citizen and does not reside in the country where the trial takes place. This will represent a major breakthrough for the fight against impunity for many international crimes.

Second, it represents a real test for ICJ to judge on human rights cases. There were cases on human rights put to ICJ before, but the quantity is not that great. Therefore this has the potential to set further precedents on human rights cases in ICJ, and I hope it will be a positive precedent.

Of course, one should not overestimate the impact of this case on the development of international human rights law. For one thing, ICJ's decisions are binding only to state parties involved. Also, there are only a limited numbers of states who recognized the jurisdiction of ICJ, which means the impact will be very limited. But despite that, I still think this will be an important precedent for human rights justice.

International Women's Day

This is a bit late, but to celebrate the International Women's Day on March 8th, I am putting these links:

http://www.youtube.com/watch?v=UkarsUszRfg

http://www.youtube.com/watch?v=OEFTC05cmhk&feature=related

They are the speech delivered by Hillary Clinton at the 4th World Conference on Women in Beijing, 1994. Many people consider this speech as a historic speech, because it gives passionate articulation of why women's rights should be considered as part of human rights, and therefore human rights protection should also cover the protection of women's rights. It's a wonderful speech and I hope you enjoy listening to it.

Kony 2012? Good or Bad?

The youtube video 'Kony 2012', made by a group called "Invisible Children" went viral in the last couple of weeks. The video is aiming to make Joseph Kony - indicted war criminal by the ICC and still on the lose - to be so famous that his capture becomes possible. In its first week the video hit 20 million views. Now it is approaching 60 million views.

Although it has raised a lot of awareness regarding Joseph Kony, it has also drawn many critics. Some people say that the video over-simplifies the conflict in Uganda, painting it in a black-and-white frame. It portrays Joseph Kony as the ultimate bad guy that needs to be captured . There are some other things too.

I think there are some truths in what the critics are saying. However, I will just let you read their articles by yourself. Here are the links:

http://visiblechildren.tumblr.com/post/18890947431/we-got-trouble

and

http://thisisafrica.wordpress.com/2012/03/07/acholi-street-stop-kony2012-invisible-childrens-campaign-of-infamy/

Of course it won't be fair unless I put invisible children's answer to the critics. Here is the link:

http://s3.amazonaws.com/www.invisiblechildren.com/critiques.html

The Public and the Private in Human Rights

Human Rights was first constructed to limit states' power and sovereignty. The limiting of state power then created two separate spaces, called the Public and the Private. The Public is the space where state operates, whereas the private is the space where state cannot operate. One of the aims of human rights activism, in particular the Western-type human rights activism, is the enlargement of the Private space and the reducing of the Public space. However, for me, this type of activism can be problematic in various regards.

The first one is that the whole human rights regime, the international treaties and conventions, which is supposed to be adopted by states, depends on state sovereignty. It depends on the state willingness to adopt the human rights regime in its system. If human rights is aiming to reduce the limit of state power, the question then: how can we expect states to adopt human rights regime, if they know that this regime will cause their power to diminish? How to make states to comply to something that they clearly do not want?

The Transnational Legal Process theory tries to answer this question by pointing out the role of the domestic civil society (represented by NGOs) in the internalization of human rights norm. However, this can only be possible in a relatively democratic country, where the involvement of civil society is an essential component of legitimacy. The theory cannot answer how autocratic states can be forced to comply to human rights regime. This huge blank becomes particularly relevant when we take a look at some real life examples, such as what happening in China, or in Burma, now.

I do not have a clear answer, now. However, one of my hunches (let us call it a hunch), is probably that human rights activism should not be aimed at limiting states power on these countries, rather it should appear as if human rights can expand states power, by expanding the public and limiting the private, rather the other way around, thus enticing these autocratic states to adopt human rights regime. Again, this is not a clear answer, just a hunch. I cannot deliberate further here, because of limited space and time. I do think that more research should be done on this area.

The second problem is that this distinction can sometimes blurred the question of responsibility. Many feminist activists have pointed this problem. Their well known jargon is “the private is the political”. By that, they try to point out that the women oppression do not happen only in the public sphere, but it also happens – or it happens particularly – in the private sphere. Because it happens in the private sphere, responsibility becomes a non-issue and oppression can continue without challenge. The private sphere, which is supposed to become a place of sanctuary from states oppression, becomes the very place that human rights activists loathe: a jail, or even a torture chamber, where no one can interfere.

The third problem is related to the previous one. Recent experience has shown us that human rights violation can happen not just when states become too powerful. Now we have a notion of “failed states”, where states cannot perform its function in providing the protection of human rights. On these failed states, violation of human rights happen on daily basis. Yet even so, people know about these things, the question of who has the responsibility to protect becomes useless to ask, and the distinction of the public and the private becomes redundant. At the end of the day, even though human rights is aiming to limit states power, we still need the states, even if their function is only to enforce the distinction between the public and the private.

I am not saying that we should do away with the separation between the public and private. In certain respect, maybe we do need this distinction.  We need a space where state cannot interrupt and disturb our lives. However, I think it is really important to rethink about the balance between what is public and what is private, in the context of human rights.

Mujianto and Gay's Rights in Indonesia

The latest gay serial killer case is gripping Indonesia again. The alleged murderer is Mujianto, a gay man from Nganjuk, East Java. He is suspected to have killed at least 5 people by poison, for jealousy motive. Apparently Mujianto was in a romantic relationship with his employer, but his employer had other boyfriends besides him. Jealous, Mujianto tried to kill all of his lover's lovers. Although 5 people were killed, he actually tried to poison at least 16 in total.

The media (and the public) do not waste time to start their gay bashing as soon as the case came out. All of them never forgot to mention the detail that Mujianto is gay on their articles, as if trying to make the point that gay is a murderous sickness, and that it is a sickness that will lead to murderous tendencies. Some of them cannot resist to make the linkage with another gay serial killer, Ryan of Jombang, from 2 years ago.

Gay bashing in public sites is even worse. Most of the online comments in news website, forum, and others are downright hostile against gays. Some call for 'total banishment' of gays, some call for 'reforming' them, calling them as the 'scourges of society', one that will be causing the 'wrath of God'. Some are worse than that, and I just don't have the heart to say it.

Gay groups are understandably distraught by this case. This will represent a major setback to their struggle for equal rights in Indonesia. Some try to distance themselves from the case, by condemning Mujianto.

I do think, however, that gay groups can actually use this opportunity to highlight the psychological issues of becoming a gay in Indonesia. I am saying this not because I am supporting the opinion of mainstream media who try to use this case to picture homosexuality as sickness. As a matter of fact, even though I am not gay, I sympathize with them. I support their cause. On the other hand, I think it is important to point out that this case is a representation (albeit in a very extreme way) on mental health issues on becoming a gay in Indonesia.

Becoming a gay in a group-oriented society such as Indonesia is not easy. Being gay is not a crime here, which is actually quite liberal compared to other Moslem-majority countries, but it still has a lot of stigmas attached to it. Gays are considered second rate people. Most people laugh at them, some despise them and don't want anything to do with them. Religious leaders call them a disease and a sign of degrading time. Media picture them as sick people. That is why some gays think the wise thing to do is to hide their identity and live a quiet double life: appearing as heterosexual on the outside (even getting married and have children) and becoming gay secretly. Imagine how big the psychological burden they have to bear throughout their life to lead a double existence like that.

When a gay finds love, it must be a very significant event for them, as for other people. However, it is even more so for gays because of how society view gay and gay's relationship. They have to make all kinds of efforts to hide their relationship away from the public eye. It is not easy to be in a relationship for gays, therefore they really need to be in love to be able to withstand all those obstacles.

However, when the relationship broke down, the pain will be even greater for gays. Broken heart is not just about investing so much time and energy for the other person and then finding it is all useless, or the feeling of losing someone precious and special. Broken heart is also about fearing that we may not find the same thing again. For gays in Indonesia, considering the circumstances, I suspect, the feeling is doubly greater. Maybe these are what Mujianto was feeling when he tried to murder his victims: lost, fear and hopelessness.

I am not suggesting that all broken-hearted gays have the tendency to become killers. What I am trying to say is that it is important to address psychological issues of gay people in Indonesia. They have these issues not because homosexuality is a disease in itself, but because of the enormous burden they have to bear due to the stigma society attach towards gays. The stigma affects them in variety of ways. Maybe it causes them to blame themselves for their 'gayness', maybe it gives them a low self-esteem. But what is important, the stigma prevents them to fully realize themselves. I believe this is the one causing all sorts of psychological problems for gays. Maybe this is also the one indirectly causing Mujianto to do what he did.

Gays have the right to live a normal life in society. They have been prevented  to do so by our society for a long time. I believe, in light of Mujianto's case, it is important reopen the debate on the importance on giving gays what should be rightfully theirs: the right to live freely and openly in Indonesia.


News articles on Mujianto: http://www.thejakartaglobe.com/pages/search/index.php?keywords=mujianto&x=0&y=0

News articles on Ryan, the serial killer from Jombang: http://www.thejakartaglobe.com/pages/search/index.php?keywords=Ryan+Jombang&x=0&y=0

Brain Drain: A Lost or A Gain

Brain Drain: A Lost? 

A few years ago, on a trip to Tokyo, I met an old friend (let’s call him X). We went out to a restaurant and had some drinks together, catching up a lot of news. We were talking back and forth to no particular topic, until we came to the subject of jobs. My friend is an IT specialist, and he is so good in his field that a Japanese company offered him a position in the headquarter office. It was even more impressive because he was only one of the two foreigners working there, and at the time Japanese companies were laying off people more than hiring new workers.

Back in Indonesia, I told my friend’s story to another friend (let’s call him Y).He was not impressed. He even looked a bit upset. Y said that the story of X represents the brain drain phenomena that developing countries are experiencing. He went on to explain about brain drain. Brain drain, he said, means that after a country investing so much in its educational infrastructure, hoping to benefit from the best of its local talents in the future, they have to lose their best and brightest to developed countries. They cannot stop it, because they cannot afford to offer these people the same salary as the more developed countries. The lost of these highly skilled people means that developing countries cannot make use their knowledge and skills for development. Knowledge and skills will only be concentrated in highly developed countries, making more difficult for developing countries to catch up.

The term ‘brain drain’ itself is not a new term. It was first coined in 1960s by the British Royal Society to describe the migration of scientists and technologist from Europe to the United States in post-world war period. As global migration increasing in scale (it is estimated that there are over 200 million migrant worldwide), brain drain is also increasing. Indonesia is also experiencing it. Now and then we begin to see highly skilled people moving out of Indonesia to work. X is one example, but I know some other people like him. I even have a distant relative working in the US as a professor in a university. As Indonesia continues to improve its educational system, their number will surely increase.

People in developing countries generally regard brain drain as a destructive phenomenon. It is no different too in Indonesia. My friend, Y, seems to regret X’s decision to work in Japan. He never said it, but I get the feeling that he regards the decision as ‘unpatriotic’. He said that X should do whatever he can to try to work in Indonesia. I told him that X actually had tried to work for more than 5 years in Indonesia, even though he was already offered the position in Japan by then.

As I told X’s story to other friends, I got more mixed reactions. Some support X’s decision to move outside Indonesia, because “He couldn’t get a decent life in Indonesia that is equivalent to his skills”, or “Indonesia just does not appreciate his skills well enough, so why should he stay here?” and so on. Others of the more nationalistic type would say that it is an unfortunate decision; he should contribute his knowledge to Indonesia. Yet everyone agrees on one thing: X’s departure is a loss to Indonesia, and that it represents a long list of failures by Indonesia to hold on to its best and brightest. No one seems to think that X’s departure (and other people like him) can help the development of Indonesia.

A Development Gain?

Recent studies on Migration have shown that the impact of brain drain is not always easy to assess, whether it is positive or negative. In fact, some recent studies actually suggest that the migration of highly skilled people can contribute to the development of the host countries. An article in The Economist, May 28th 2011 edition, cites studies from around the world that supports this. A study from Ghana, for example, shows that remittances send by skilled Ghanaian abroad are more than enough to cover the amount of money spent on educating them. You can say that it is a return of investment.

We do not know whether it is also happening in Indonesia. Remittances sent by Indonesian migrant workers in 2009 reached to US$ 6.6 billion (IOM Report 2010). Unfortunately, it is not clear how much from that amount were remitted by highly skilled workers. Looking at the case of X, he told me that he continuously sending money back home to his family who is still living here. I do not know how much money he sends home, but I am sure it is not small.

Migration of highly skilled workers can have positive impact towards development through other means. The 2011 handbook on Mainstreaming Migration into Development Planning (released by the Global Migration Group) says that there is always a possibility that the departing skilled people will return to the host country with more experience and skills, because they have honed their skills and acquired vital experiences while working abroad. This added skill and experience will surely benefit the host country. They can use it or they can pass it through the next generation by teaching them.

Moreover, departing migrants may also motivate younger people in host country to attain higher education. A study in Fiji (also cited in The Economist article) shows that young Indians in Fiji are more likely to go to universities because the three top countries for migration for Fijians (Australia, Canada and New Zealand) put more emphasis on attracting skilled migrants. Since most of them will end up staying in Fiji after all, this means Fiji will have a better stock of skills than before.

I do not know whether similar research on this has been carried out in Indonesia or not. However, it seems there is an increasing interest among the younger generation in Indonesia to go and work abroad, and this desire motivates them to go to higher education. Maybe it was first inspired because of stories they heard from the previous generation of highly skilled migrants.

Brain Drain: A Lost or A Gain? 

We need to have a more careful and thorough study before we can establish whether the departure of highly skilled workers from Indonesia is bad for development in Indonesia or not. Recent studies seem to suggest the possibility of benefiting from this phenomenon. Government therefore should device policies to maximize the gains and minimize the cost.

However, looking back at the original story of my friend, X, I think it is no less important to try to understand that this is not just about development. As I have explained he tried to work for five years in Indonesia, and he was paid quite well too. However, he realized that, due to so many factors, he could not use his skill to the maximum. When he accepted the offer from the Japanese company, it was not only because of the salary they offered, but also because of the opportunity to use his skill to the maximum. Now, he said, he is enjoying his life more.

My friend is not unpatriotic. He is also not money hungry. He simply wants to have the chance to apply his skills, the skills he had spent so much of his life to study.  If he has the chance to apply his skills in Indonesia, he will surely come back to Indonesia and work here, even with less salary. That is, unfortunately, not the case. His decision to move to Japan should not be judged in a negative light. It is an exercise of his human rights and should, therefore, be respected as such.

Greeting

It's my first blog in English!

I already have a blog in Indonesian: http://bebas-tulis.blogspot.com/. But sometimes I write in English, and I just don't want to mix everything in one place, so I create this one.

I don't know what I'll write. Maybe just everything that will come to mind, on all sorts of issues. I just hope I can have discipline and write regularly.