WOMEN'S HUMAN RIGHTS IN UNITED STATES LEGISLATION
Introduction
Article 27 paragraph (1) of the 1945 Constitution, which explains the recognition of the
principle of equality for all citizens without exception. This principle of equality eliminates
discrimination, therefore every citizen has the same rights before the law and government
regardless of religion, ethnicity, gender, position, and class. Moempoeni Martojo1 says that:
"The term citizen certainly implies both women and men". What Moempoeni Martojo said is
true, because in any country in the world, citizens always consist of men and women. By
recognizing the equal rights of citizens, it means that there is no difference between men and
women. The recognition of the principle of equality before the law and government in the
Constitution shows that the founding fathers of United States, before establishing the state,
were well aware of the importance of protecting human rights.
Juridically, at the international and national levels, United States legal instruments and
regulations recognize the principle of equal rights between men and women. However, at the
level of implementation of state administration, discrimination and injustice against women.
Women are always left behind and marginalized in the fields of economy, education, health,
employment, and politics. One of the causes is the patriarchal culture that has developed in
United States society. In a society with a patriarchal culture, men have a greater role in
holding power, which can automatically degrade the role and existence of women2 . By
following the principle of equal rights in all fields, then both men and women have the same
rights or opportunities to participate in every aspect of social and state life. So if there is
discrimination against women, it is a form of violation of women's human rights.
To what extent, then, have the laws and regulations enacted by United States during the
reformasi era advanced the protection of women's human rights?
Discussion
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
Legal Protection of Women's Human Rights in United States
The word law in this paper is normative law, namely in the form of applicable
legislation (positive law) established in the reform order. The content of the legislation
chosen to be studied is limited to legislation that aims to protect women's basic rights.
The struggle of women to achieve equality and justice that has been carried out since
long ago has not been able to raise the dignity of women to be equal to men. Even though
the highest power in this country was once held by a woman, namely President Megawati
Soekarno Putri, and many women have held strategic positions in the government, gender
injustice and women's backwardness have not been resolved as expected. Women are still
marginalized and left behind in all aspects of life, including in the legal field. This is a tough
challenge for women and the government. Among the legislations that contain the protection
of women's human rights are: Law No. 39/1999 on Human Rights, Law No. 23/2004 on the
Elimination of Domestic Violence, Law No. 12/2006 on Citizenship, Law No. 21/2007 on
the Eradication of Trafficking in Persons, and Political Laws (Law No. 2/2008 and Law No.
42/2008). Then Presidential Instruction No. 9 of 2000 on Gender Mainstreaming (PUG) and
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission on
Violence against Women or Komnas Perempuan which was amended by Presidential Decree
No. 65 of 2005.
Law Number 39 Year 1999 on Human Rights
After 44 years of independence, United States only had a human rights law in 1999.
Unlike the US, UK or France, which had a bill of rights from the beginning of their
independence, and made their bill of rights an integral part of the constitution. United States
constitution initially had very few provisions on human rights.
This law defines human rights as, "...a set of rights inherent in the nature and existence
of human beings as creatures of God Almighty and is His gift that must be respected, upheld
and protected by the state, law, government, and every person for the sake of honor and
protection of human dignity" (Article 1 paragraph (1)). With the existence of the Human
Rights Law, all laws and regulations must be in line with the principles of human rights
protection as stipulated in this Law. Among them are the elimination of discrimination based
on religion, tribe, race, ethnicity, group, class, social status, economic status, gender,
language, and political beliefs. The prohibition of discrimination is regulated in Article 3
paragraph (3), which reads: "Everyone is entitled to the protection of human rights and basic
human freedoms, without discrimination".
Article 1(3) and Article 3(3) make it clear that discrimination based on sex is prohibited
by law. Other laws must eliminate discrimination in every aspect of life, social, political,
economic, cultural and legal. The articles in the Human Rights Law are always addressed to
everyone, this means that all matters regulated in the Human Rights Law are intended for all
people from all groups and of any gender.
Law Number 23 Year 2004 on the Elimination of Domestic Violence
Domestic violence (DV) was initially not considered a violation of women's human
rights. Its location in the domestic sphere makes domestic violence a type of crime that is
often untouched by the law. When domestic violence was reported to the authorities, it was
usually answered by resolving it within the family. Prior to the issuance of Law No. 23/2004
on the Elimination of Domestic Violence (PKDRT), victims did not receive adequate legal
protection. Domestic violence cases, prior to the issuance of the PKDRT Law, were always
identified as something domestic, so talking about domestic violence in a family was a
disgrace to the family concerned. So that law enforcement against domestic violence cases is
still small. The lack of law enforcement against domestic violence cases is caused by several
things, including an understanding of the root causes of domestic violence itself from the
perspective of law, religion and culture. For this reason, efforts to disseminate women's
human rights must be carried out effectively to reduce the number of victims who fall victim
to domestic violence.
The portrait of United States culture, which is still patriarchal, is very unfavorable to the
position of women victims of violence. Often women victims of violence are blamed (or
partly blamed) for the violence committed by the perpetrators (men). For example, wives
who are victims of domestic violence by their husbands are blamed with the assumption that
the domestic violence committed by the victim's husband is the result of her mistreatment of
her husband. This stigmatization of the victim in relation to her treatment (or service) to her
husband has made the victim as bad as the perpetrator of the crime. Thus, adequate legal
instruments are needed to eliminate domestic violence3 .
With the enactment of the PKDRT Law, the issue of domestic violence, which was
previously considered a domestic problem, was raised to the public domain, so that the
protection of victims' rights received a clear legal umbrella. The scope of households in this
law does not only include husbands, wives, and children, but also people who have a family
relationship and live in the household and people who help the household and live in the
household (Article 2). The principles of PKDRT itself as explained in Article 3 are for: (1)
respect for human rights; (2) gender justice and equality; (3) nondiscrimination; and (4)
victim protection. The objectives of PKDRT as mentioned in Article 4 are to: (1) prevent all
forms of domestic violence; (2) protect victims of domestic violence; (3) take action against
perpetrators of domestic violence; (5) maintain the integrity of a harmonious and prosperous
household.
Violence against women, more specifically, is often categorized as gender-based
violence. This is because violence against women is often the result of gender inequality,
with unequal power relations between men and women. This can be reflected in domestic
violence, which is more often committed by people who have more power over weaker
victims. Gender-based violence is also seen in cases of rape, which are more often
committed by men against women than vice versa. This gender-based violence places
special emphasis on the root causes of violence perpetrated against women, namely that
between the perpetrator and the victim there is a gender relationship where in their position
and role the perpetrator controls and the victim is the one who is controlled through the act
of violence. This is what is meant by historical inequality in the 1993 Declaration on the
Elimination of Violence against Women.
Gender-based violence is actually not only focused on women as victims, but also on
male servants, male drivers or other male subordinates. Because the basis of this gender-
based violence is the inequality of power relations, the emphasis is on violence committed
against those who are subordinated in their position4 . The causes that assume the
occurrence of violence against women include:
There is a perception of something in the mind of the perpetrator, and often what
underlies this act of violence is not something that is faced in reality. This is
evidenced by the reality in the field which shows that perpetrators have
committed these acts of violence without an underlying reason.
Laws governing acts of violence against women are still gender biased. Often the
law is not in favor of women who are victims of violence, the impartiality is not
only related to the substance of the law that does not pay attention to the interests
of women or the victim, in fact there is no legal substance that regulates the fate
of victims of violence, which is generally experienced by women"5 .
The gender relations provision in Law No. 1/1974 on Marriage states that the
husband is the head of the household and the wife is the housewife (Article 31
paragraph (3)). This article clearly places the husband as the sole head of the
family. Therefore, he is the one who has the right to act on behalf of the interests
of his family members in every issue6 . This article is one of the articles that
contains gender bias7 , because it places women (wives) in a lower position,
combined with the myth that attaches the responsibility of reproductive control to
women with their domestic duties, so that psychologically and juridically a
husband seems to be allowed to commit violence against his family members,
especially against his wife and children.
The shortcoming of this law is that the scope of regulation is limited to domestic scope,
namely those who have a family relationship or are in the same domicile, so it cannot be
applied to victims who do not meet the domestic scope category. It is therefore difficult to
say that in general all forms of violence, whether physical, psychological, economic or
sexual violence (especially against female victims) have been regulated in United States
criminal law.
Nevertheless, in a progressive view, judges can consider the regulation of these types of
violence in the PKDRT Law from the perspective of protecting victims of violence, as one
of the references in deciding a case of violence against women.
Law No. 12/2006 on Citizenship
Law No. 2006 on citizenship replaces Law No. 62 of 1958 on Citizenship.
Philosophically, juridically, and sociologically, Law No. 62/1958 is considered no longer in
accordance with the development of society and state administration of the Republic of
United States. Philosophically, Law 62/58 still contains provisions that are not in line with
the philosophy of Pancasila, among others, because it is discriminatory, does not guarantee
the fulfillment of human rights and equality between citizens, and lacks the ability to protect
the rights of citizens provide protection to women and children. Juridically, the
constitutional basis for the formation of the law is the 1950 Constitution, which has no
longer been valid since the Presidential Decree of July 5, 1959, which declared a return to
the 1945 Constitution. In its development, the 1945 Constitution has undergone changes that
better guarantee the protection of human rights and citizens' rights. Sociologically, the law is
no longer in accordance with the development and demands of United States society as part
of the international community in global relations, which requires equal treatment and
position of citizens before the law as well as gender equality and justice8 .
Among the specific principles that form the basis for the enactment of the Citizenship
Law is the principle of non-discrimination, which does not distinguish treatment in all
matters relating to citizens on the basis of ethnicity, race, religion, class, sex and gender.
Another principle is the principle of recognition and respect for human rights in all matters
relating to citizens must guarantee, protect, and glorify human rights in general and the
rights of citizens in particular.
Arrangements that eliminate discrimination based on sex include allowing a wife, in a
mixed marriage of different nationalities, to choose her own nationality. The wife is allowed
to choose to remain in United States citizenship or change citizenship to follow her
husband's citizenship, even if the law of her husband's country of origin requires the wife's
citizenship to follow her husband's citizenship as a result of the marriage (Article 26
paragraphs (1) and (3)). The previous Citizenship Law (Law 62/1958) resulted in a wife
losing her United States citizenship if she married a foreigner, because she had to follow her
husband's citizenship.
Law No. 21/2007 on the Eradication of the Crime of Trafficking in Persons
Trafficking in persons is something that has been around for a long time. Trafficking in
persons has its roots in The culture of slavery has been practiced for a long time. This can be
seen, when the white nation captured black people (Negroes) in Africa and sold them to
white businessmen in America. The black people who were bought were made slaves by
white businessmen in America. These slaves became the property of the businessmen who
bought them, and could be treated as they wished. As slaves, of course, they did not have
any rights. These slaves only serve their masters, a human being does not have the freedom
of life as it should be9 .
In United States, this can be seen during the Dutch colonization. The United States
people at that time were not in the same position as the Dutch. The distinction of the people
into European, Bumiputera and Foreign Eastern groups was stipulated in Article 163 of the
Indische Staatsregeling (I.S). The distinction of people into these groups is certainly very
contrary to the principle of human rights. Article 163 of the I.S became the basis of
legislation, government and judicial regulations in the "Dutch East Indies" in the past. R.
Supomo10 argues that this distinction is basically based on the type of nationality.
Therefore, there was "racial discrimination" (national distinctions) in the legislation,
government and judiciary of the "Dutch East Indies".
The number of human trafficking cases continues to grow from year to year. The United
States Embassy in Kuala Lumpur once reported the number of complaints from United
States citizens (USC) who experienced cases of human trafficking. From March 2005 to
July 2006, data from the International Organization for Migration (IOM) showed that 1,231
United States citizens had become victims of the trafficking business. Although not always
synonymous with human trafficking, a number of sectors such as migrant workers, domestic
servants and commercial sex workers are suspected to be the most vulnerable professions to
human trafficking11 .
The definition of trafficking in persons as stated in Article 1 paragraph (1) of the PTPPO
Law is: "Trafficking in Persons is the act of recruiting, transporting, harboring, sending,
transferring, or receiving a person by threat of violence, use of violence, abduction,
harboring, falsification, deception and abuse of power or position vulnerable, the entrapment
of money or the giving of payments or benefits, so as to obtain the consent of a person
having control over that other person, whether exercised within a country or between
countries, for the purpose of exploitation or resulting in exploitation".
Human trafficking is a form of human rights violation, as it takes away the basic right
that every person should have, namely the right to freedom. This of course violates various
national and international legal instruments. United States itself before the issuance of the
PTPPO Law already had several regulations prohibiting trafficking in persons. Article 297
of the Criminal Code, for example, regulates the prohibition of trafficking in women and
boys who are not yet adults. In addition, Article 83 of Law No. 23 of 2002 on Child
Protection (UUPA), also mentions the prohibition of trafficking, selling, or abducting
children for themselves or for sale. However, these regulations do not explicitly define
trafficking in persons. Even Article 297 of the Criminal Code provides a sanction that is too
light and not commensurate (only 6 years in prison) when considering the impact suffered
by victims of trafficking crimes. Therefore, there should be a special regulation on the crime
of trafficking in persons that is able to provide formal and material legal basis at the same
time. The law must be able to unravel the complexity of trafficking networks that take
refuge behind official state policies. For example, domestic and foreign labor placements.
Likewise, sending cultural ambassadors, marrying between countries, and adopting children.
The existence of this law is evidence of United States seriousness to reduce and even
eliminate trafficking in persons.
Political Law
Law No. 2 of 2008 on Political Parties, which was last amended by Law No. 2 of 2011
on Political Parties, and Law No. 10 of 2008 on the General Election of Members of the
DPR, DPD and DPRD, which was last replaced by Law No. 8 of 2012 on the General
Election of Members of the DPR, DPD and DPRD, both of these laws formulate rules on
positive discrimination (affirmative action) in the form of a 30% quota for women in the
United States political sphere.
Affirmative Action, which is termed women's representation. Ani Widyani Soetjipto12
defines affirmative action in general as a pro-active measure to eliminate discriminatory
treatment against a social group that is still underdeveloped. Koalisi Perempuan United
States13 , says that affirmative action is a policy, regulation or special program that aims to
accelerate equality of position and fair conditions for marginalized and socially and
politically weak groups, such as the poor, people with disabilities, workers, farmers,
fishermen and others, including women's groups. Shidarta14 argues that affirmative action
is defined as an effort to increase rights or opportunities for people who were originally
disadvantaged in order to gain progress in a certain time.
Affirmative action can also be used as a correction and compensation for discrimination,
marginalization and exploitation experienced by disadvantaged social groups. The correction
is carried out in obtaining equal opportunities and benefits in order to achieve equality and
justice in all fields of life, social, economic, political, cultural, defense and security, which
most likely have never been enjoyed by social groups that are left behind. This is in
accordance with the opinion of Ani Widyani Soetjipto15 who says that the main purpose of
affirmative action towards women is to open up opportunities for women so that those who
have been a marginalized group can be integrated in life fairly. According to her, the
characteristic of all affirmative action is that it is temporary. This means that "when the
protected groups have been integrated and are no longer discriminated against, this policy
can be revoked because the field of competition and competition is fair enough for them to
compete freely".
Women's struggle to increase women's representation in the legislature through
affirmative action can be done by involving more women in political parties. Empowering
women in political parties is the earliest step to encourage equality and justice to be
achieved between men and women in the public world in the not too distant future. This step
is needed so that the number of women in the legislature can be balanced with men.
In affirmative action, what is analyzed is the problem of discrimination at the level of
certain social groups. In this concept, non-discriminatory action must pay attention to the
characteristics that exist in institutions such as gender or race.16 Textually, the word
affirmative action is not found in the 1945 Constitution or its implementing regulations. The
constitutional foundation for affirmative action in United States is Article 28 H, paragraph 2.
(2) and 28 I paragraph (2) of the 1945 Constitution. This can be interpreted from the words
"Everyone has the right to receive convenience and special treatment ...etc" and "Everyone
has the right to be free from discriminatory treatment on any basis ...etc". Providing
convenience and special treatment in freeing people from discriminatory treatment can be
done through affirmative action17 . Thus, affirmative action has a constitutional basis and is
not contrary to the 1945 Constitution. Furthermore, Law Number 39 of 1999 concerning
Human Rights. Article 46 explains the obligation of the general election system, parties,
election of members of the legislature, and the appointment system in the executive,
judiciary to increase the participation of women's representation.
Increasing women's resources in political parties is expected to facilitate the fulfillment
of the 30% quota. However, the inclusion of a quota system in legislation will be redundant
if women themselves are not willing to fight by increasing their willingness and ability in
politics.
Presidential Instruction No. 9/2000 on Gender Mainstreaming (PUG)
Presidential Instruction No. 9/2000 indicates the seriousness of the government in its
efforts to eliminate discrimination in education all aspects of state life. The preamble of this
Presidential Instruction mentions two things, namely:
That in order to improve the position, role, and quality of women, as well as
efforts to realize gender equality and justice in family life, society, nation, and
state, it is deemed necessary to carry out a gender mainstreaming strategy into the
entire national development process;
That gender mainstreaming into the entire development process is an integral part
of the functional activities of all government agencies and institutions at the
Central and Regional levels;
This Presidential Instruction is the basis for a gender perspective for all national
development policies and programs, without exception. Both central and regional policies
must have a gender perspective, otherwise the policy must be replaced.
Presidential Decree No. 181 of 1998 on the Establishment of the National Commission
on Violence against Women or Komnas Perempuan as amended by Presidential Decree
No. 65 of 2005
The National Commission on Violence against Women or Komnas Perempuan is a
national mechanism for upholding the human rights of United States women. Komnas
Perempuan was born out of the struggles of the United States women's movement and was
the response of the United States government to the demands of the women's movement that
the state be responsible for cases of violence against women during the conflict and riots of
May 1998. President Habibie inaugurated the establishment of Komnas Perempuan through
Presidential Decree No. 181 of 1998, which was later amended by Presidential Decree No.
65 of 2005.
The establishment of Komnas Perempuan based on Article 1 of Presidential Regulation
No. 65/2005 is, "In the context of preventing and overcoming the problem of violence
against women and eliminating all forms of violence committed against women". The
purpose of Komnas Perempuan according to Article 2 is to:
develop conditions conducive to the elimination of all forms of violence against
women and the upholding of women's human rights in United States;
increase efforts to prevent and overcome all forms of violence against women and
protect women's human rights.
Komnas Perempuan is one of the independent state institutions. The duties of Komnas
Perempuan according to Article 4 of Presidential Regulation No. 65/2005 are:
to disseminate understanding of all forms of violence against women in United
States and efforts to prevent, mitigate and eliminate all forms of violence against
women;
carry out studies and research on various applicable laws and regulations as well
as various international instruments relevant to the protection of women's human
rights;
carry out monitoring, including fact-finding and documentation of all forms of
violence against women and violations of women's human rights and
dissemination of the results
monitoring to the public and taking measures that promote accountability and
redress;
provide advice and considerations to the government, legislative and judicial
bodies and community organizations in order to encourage the preparation and
enactment of a legal and policy framework that supports efforts to prevent and
overcome all forms of violence against United States women and the protection,
enforcement and promotion of women's human rights;
develop regional and international cooperation to enhance efforts to prevent and
respond to all forms of violence against United States women as well as to
protect, uphold and promote the human rights of women.
Referring to the mandate of Presidential Regulation No. 65 th. 2005 as well as Komnas
Perempuan's Strategic Plan 2007-2009, the five subcommissions and other institutional
apparatus (Secretary General, Institutional Council, Working Group and Ad Hoc Committee)
have implemented programs and activities covering six (6) main areas or issues, namely: (1)
Women's human rights monitoring & reporting; (2) Strengthening law enforcement &
national human rights mechanisms; (3) State, religion and women's human rights; (4)
International human rights mechanisms; (5) Increasing community participation; and (6)
Institutionalization.
The Rule of Law in Order to Realize the Principles of Justice and Gender Equality
Women's struggle to end an unjust system (gender injustice) is not a struggle of women
against men, but a struggle against the system and structure of societal injustice, in the form
of gender injustice. To end this unjust system, there are several agendas that need to be
carried out, namely:
Fighting the hegemony that demeans women, by deconstructing idiology.
Deconstructing means questioning everything that concerns the fate of women
everywhere. ... etc.
Countering the developmentalism paradigm that assumes that women's
underdevelopment is because they do not participate in development18 .
Fighting hegemony that degrades the dignity of women should be done, because
hegemony is actually only a construction or social engineering. Among the ways to do this
is through legal construction, which provides a basis for women to fight against unfair
hegemony guaranteed in various legal instruments, both in international and national legal
instruments. Among the ways to be able to realize equality for women is by increasing the
number of women who become members of parliament, because the formation of a
legislation is influenced by the members of parliament themselves. Therefore, efforts to
increase women's membership in parliament must continue. To date, the number of female
members of Parliament has never reached 30%19 . For this reason, it is necessary to
formulate a mechanism that can ensure that women's representation in the public sector will
increase in the future.
In addition to legal provisions that have provided special treatment for women, or at
least have been prepared with a gender equality perspective, of course there are still laws
and regulations that are felt to be discriminatory against women, or at least not gender
sensitive. Moreover, until now there are still many applicable regulatory provisions
legislation created during the Dutch colonial rule. The Criminal Code, for example, does not
recognize gender-based violence. This can be seen from the formulation of articles
regarding or defining violence against women; articles relating to sexual crimes are
categorized as crimes of decency and not crimes against women's bodily integrity, etc.20 .
Formal regulations include regulations that regulate how the offense is applied through the
judicial process, starting from reporting, investigation, investigation, judicial examination,
decision and execution, as contained in the Criminal Code, do not adequately regulate the
rights of women as victims of violence and the rights of women as "perpetrators".
Apart from the substance of the rule of law, the challenges faced are from the structure
of law enforcement and legal culture. In the field of law enforcement structures, as victims
or witnesses, women need certain conditions to be able to provide testimony freely without
pressure. For this reason, the case process, starting from investigation and investigation,
prosecution, to trial, needs to pay attention to certain conditions experienced by women21 .
For example, during an investigation, women victims of violence certainly need their own
space, especially if the violence is sexual violence, which not all women are able to convey
openly. Likewise, related to trials that require security guarantees both physically and
psychologically. What is done by law enforcement officials shows that they have not
prioritized the interests of victims. So that access to justice for victims is hampered and even
victims lose their rights to protection. This situation is an indication of the weak
understanding of law enforcement institutions of the rights of victims22 , especially victims
of violence against women.
Legal culture encompasses the way society views the issue of violence against women,
which is currently being built to care for women. However, most people still submerge the
interests of women victims of violence over larger interests, such as the good name of the
family and community. For cases of violence that occur within the scope of the household,
for example persecution by the husband In the case of violence against wives, the
community tends to consider the issue as a personal matter that cannot be interfered with by
others, let alone law enforcement officials23 . This makes the rights of victims neglected24 .
Thus, the community also perpetuates the crime itself. This is strongly influenced by gender-
biased and patriarchal perspectives. The community does not have access to information
about the trial process. The public does not know what has actually been carried out by law
enforcement, and how the law enforcement process is carried out. The community only
knows the results of the existing law enforcement process which is often unfair to women.
Community knowledge is actually very important in the context of providing input in the
process of upholding justice for victims.
This shows that the existence of laws and regulations that guarantee the implementation
of women's constitutional rights is not enough to ensure the upholding of these constitutional
rights. Legislation must be followed by gender-sensitive law enforcement and no less
important is cultural change that tends to discriminate against women. To change certain
cultural values is not an easy thing, it cannot even be done by force of law. A more
appropriate way is to revitalize local cultural values that reflect recognition of women's
rights so that they can be easily accepted by the community.
Conclusions
Between 1998-2008 many laws and regulations relating to human rights were issued. It
can be said that these ten years were the most progressive period in the protection of human
rights. Not to be left out is the regulation of the protection of women's human rights. In the
various laws and regulations that came out in that year, the issue of women's rights received
serious attention from the government. It can be seen from the government's efforts to
eliminate discrimination based on gender gender included in various laws and regulations. In
addition to legal provisions that have provided special treatment for women, or at least have
been formulated with a gender equality perspective, there are still laws and regulations that
are perceived to be discriminatory against women.
