The Existence of Cultural Relativism and Its Approach on Different Function of Human Capabilities: A Case from Indonesia

The universal notion of Human Rights evokes our curiosity on how the same value can be adopted by different time, space, place


Introduction
Human Rights is a universal concept.That is what people mostly have in mind.A natural right that embedded anyone since the first time he or she was born in this world.The concept is almost rigid and broadly acceptance in the world.The primary recognized document that wrote this universal insight is Universal Declaration on Human Rights 1948.It became the ground for the majority of people or particular institution who has concern on Human Rights.
The universal rule may perform and provoke to the judgment that if something occurs beyond the concept of Universal Declaration of Human Rights, then it must be wrong. 1There ought to be a violation of human rights.For instance, land procurement that has been done by a government can be accused as Landgrabbing because involving a sensitive land acquisition issue of indigenous people. 2 Universal human rights is evident about the right to own property that no one should be forced to release its right, not even by the government.Therefore, many governments are being stipulated for violating human rights to its civilians on land procurement issue by the notion of universal human rights and likewise being bolstered by capability theory. 3e absolute right granted to person at some point may overextend human`s freedom especially in which has been setup partly by capability approach.Besides, the universality of human rights itself is questionable.Donnelly acknowledged that universality of human rights is relative towards cultural which is missed, at some extent, by the concept of Human Capability Theory. 4Missing this cultural relativism perspective on human rights` fulfillment will lead us to misjudge certain condition on the breach of human rights towards human development.
Therefore, this research will present the insight of cultural relativism that should be understood as one of the factors of different function of human capabilities.By fathom this concept, it encourages us to take a broader perspective of human capabilities and human rights realization throughout the entire globe.

Methodology
In the sense of understanding the realm of cultural relativism, it is important to take a socio legal approach.This paper employs that approach by presenting the notion of human rights, human capabilities, dan functioning towards cultural relativism development in our society.In order to justify the hypothesis of this paper, there will be cases of cultural relativism from the perspective of Indonesia.
This paper is divided into two main parts.First, there will be an introduction of capability, cultural relativism, functioning, and Human Rights` fulfilment.Second, we will examine and discuss the relative concept of the recent human rights` cases through the perspective of Indonesia which contain land acquisition and politic Cultural relativism is not a novel concept if we also understand that human rights is outdated and recognized concept by society all over the globe.Human Rights` recognition in the past was available not only in western countries but also in Africa, Arab countries (which can be found in Quran) and Eastern countries as well. 14nce it already stood in different parts of the world, the notion of cultural relativism is something we are arduous to deny.Without inserting this concept, the appropriate interpretation of capabilities into functioning will fail at certain condition and indeed, mislead.

Consequently, Human
Right`s fulfillment will be seen in the wrong direction.The worst partis it can create a huge disturbance in the middle of the society where culture lingers in their mind and heart.In this instance, functioning becomes an essential tool for determining whether human rights` fulfillment can be achieved or not.On another word, it can stipulate whether there is a breach or violation towards human rights or not.
Less variable on functioning will lead to a lesser perspective.In contrast, more variable will establish a broader perspective.That is why adding cultural relativism into the variable of functioning capabilities is a fundamental work to understand human rights` fulfillment a way better. 13Ibid 154.

Different Function of Human Capabilities
As a starting point on this part, we will discuss an example of simple human capability; feeling love.We agree that this capability is universal for a person to feel love and be loved.Kissing in public is recognized and allowed to function it in many western countries.
Meanwhile, in most eastern countries, that kind of freedom is not allowed, and thus functioning this capability is forbidden.In fact, people may get arrested by police due to violating public orderliness.This case shows us that functioning human capabilities is not universal and the relativity insight is strengthened by cultural difference.
We also agree with the notion that every person has fundamental right to be treated as a human which inherent with its dignity.All individuals in the world, no exception.That is universal.However, one thing should be considered likewise with this issue is, since someone has rights, other person or even a collective group of persons will also have rights.In the real world, there should be a harmonize form between a person`s rights, others` rights, and collective rights.
It is great to have a right to feeling love, being able to feel and share it with the partner we love.However, how to function it may not be the same in the different culture.That lays us to the concept of different function on our capabilities.
In most western countries, embodying love feeling in front of the public is possible without any moral or legal consequence.Meanwhile, in several eastern countries, particularly which culturally based on Islam religion, the way to function love capability is 14 Donnelly, above n 1, 284.different.It should not be shown in the middle of public, but can be done in a private area.Even, if we do it in private area to function our capability, we have to ensure not to breach certain moral or legal rules.
For instance, to do it with underage or somebody`s wife or husband.Local authority`s measure to punish if we breach that rule will not be apprehended as human rights violation.In fact, it will be seen as a necessary act to restore public orderliness.This kind of punishment is acceptable due to it necessity for the majority of people, society, religion, and state where the culture lingers.
Thereby, we could not employ if such thing, for example, happens in Indonesia as a violation towards human rights.Meanwhile, in another country in the world, we can pursue for that.Human rights` judgment can be varying in the different place in the world by exercising public reasoning which can be today`s social condition or long-lived cultural value.
In so far, we have established that the value and capability of human rights are universal.However, various functions to realize them can be different.These below cases from the perspective of Indonesia show how capabilities can be functioned differently from the 'normal' concept in a society or country.This condition leads to what we called as cultural relativism.
a. Land Acquisition Land procurement case can likewise be treated with cultural relativism.Many Panjaitan Agi, "Indonesian Rights Commission Tells Japan to Review Power Project," sides were accusing the Government of Indonesia (hereinafter is GOI) violated human rights in the activity of land acquisition for development.F or example, what happened in PLTU Batang coal-fired power plant, which started in 2010.The project was slowing down because the government received a rejection from the villagers who denied selling their land. 15Human rights defender point-out that the government and investor from Japan were not respecting the local or indigenous people. 16e thing should be clear and answer first, is Indonesia recognized indigenous people as universally stipulated by world consensus?The answer is a slightly tricky.To compare it with the condition in USA, New Zealand and Australia certainly 'overrated'.
The occupation of states as mentioned above is related to the existence local people that already being settled there as aboriginals.The new civilian who came to that country through colonization period certainly overtook the mainland and control of the territory while the native became the minority and powerless.
That is the background history of what so-called indigenous people.Meanwhile, the concept of indigenous people in Indonesia (and in many countries in Asia) is not relevant as compared to previous cases in some western countries. 17Therefore, the use of indigenous people term instead of local people should be taken carefully.Meanwhile, to determine if there is a violation of human rights by a government, we have to measure to what extent the government has its sovereignty to undertake the land acquisition of civilian.
Once again, at some point, we also must look at the cultural perspective, in companion with universal or exact human rights.In its culture, the life of people in Indonesia well-known for its 'common interest above all individual interest'.
Far away from the modern life, ancient people in Indonesia are used to do mutual work or cooperation, and even they had sacrificed some of their property for the public purpose.This conceptual remained and afterward accommodated in the 1945 Constitution of the Republic of Indonesia. 18e 1945 Constitution is the fundamental law and the highest rule in Indonesia`s law hierarchy system.In its provision of Article 33 stands the regulation that stipulated all the wealth and resources within the territory of Indonesia, including land, water, and everything under it, are controlled by the state.Furthermore, specific regulation of Law number 5 of 1960 on Agrarian Basic Principles determined that due to its duty to control and regulate the wealth and resources, GOI allows civilian as a person or group to use and own land (Article 4). 19wever, the rule of this law also stipulates that state`s duty to control its resources is to maximize the benefit nation`s prosperity (Article 2.3).
Therefore, for the public interest of the country, the right to own land may be deprived with adequate compensation by prompt regulation according to the law (Article 18).Furthermore, in Article 27, the right to own land can be revoked and become the property of state based on the provision of Article 18, voluntary submission or being abandoned for times.
In the specific regulation of Land Procurement for Public Interest on Law number 2 of 2012, 20 the right of civilian towards its land is well stipulated.This adoption partly because since 2006 GOI has ratified the International Covenant on Economic, Social and Cultural Rights (ICESCR) 21 and the awareness to respect human rights is growing amongst society.
However, Law number 2 of 2012 is still stubbornly consistent with the sovereignty of state which can be seen in Article 2 that land procurement activity is based on public purpose`s principle.It implies that ''common interest above all individual interest' principle is in force.In this matter, civilians` right to hold their land is limited.Universal human rights might misinterpret this limitation of right and declare it as human rights violation.
There might be a confusion, particularly when a question arises that if international law is considered lower than domestic law for this instance.Article 17 of Universal Declaration of Human Rights in 1948 22 stated that everyone has the right to own property and no one shall be arbitrarily deprived of his property.Consequently, the term of 'arbitrarily deprived' could be ambiguous Therefore, government act must be measured by its nature.Is it done arbitrarily or is it underlying by fair and legitimate act.GOI certainly will defend its sovereignty to control the resources within its territory in the name of public purpose and common interest which in the process could be apprehended a little harsh if people refuse by any means to sell their land.
Thereby, in the perspective of the capability approach, this creates the limited function of civilians to hold their property.The self-determination which is prescribed by Article 1 of ICESCR becomes narrow where it should be understood as a free process without limitation at all.If there is a curtailment in the process, ICESCR could see it as a violation of human rights.
Meanwhile, this is only a merely limited and different function of capability, not as a violation of human rights because Article 19 and 20 of Law number 12 of 2012 require GOI to undertake an appropriate inform consent by establishing public consultation with the affected people of land acquisition.There is also a path for affected people to convey their objection through district and appeal court (Article 23).
Furthermore, Article 33-36 provide the information concerning compensation and Article 38 allows the affected people to bring the dispute regarding payment to the district and appeal court.In addition, there is a mandatory requirement for GOI to impart the inform consent about the plan and information of the project (Article 55). 23UN, "International Covenant on Civil and Political Rights (ICCPR)," n.d., We underline the cultural relativism in land acquisition in the perspective of Indonesia.Despite the fact that GOI acknowledges and respects the Universal Declaration of Human Rights 1948 and the ICESCR, the capability of people to hold their right is limited by the functioning process due to the value of 'common interest above all individual interest' which has been well-written under the constitution.
Without understanding this culture value, surely, the indictment for violating human rights of affected people to hold their property possibly evokes.However, for the remain capabilities such as; to receive inform consent, adequate and prompt compensation, there should be no cultural relativism.
Therefore, GOI ought to ensure the possible condition of function for achieving those capabilities in land acquisition.Several measures that had to be taken must be done carefully.For example, the possibility of irresponsible local apparatus which potentially disrespect the inform consent procedure and being unfair or corrupt on the compensation issue.This rule follows the universal concept of human rights for political participation which can be tracked by International Covenant on Civil and Political Rights (ICCPR) regulation that has been ratified by Indonesia in 2006. 23he constitution and ICCPR mandates equal right to be a leader in Indonesia through political participation.However, http://www.ohchr.org/Documents/ProfessionalInterest/ccpr.pdf.
that is not the case that occurs mostly in Indonesia.The fact is not every person has the right to become a president, governor or major at some point in Indonesia due to the religious and cultural concept that in a majority of moslem country the leader must be a moslem.
However, despite this conflict exists, it is not appeared in the level of rule of law where everyone has the right to choose and be chosen as government leader.In many occasions, moeslem candidate won the election and prevailed upon non-moeslem candidates.The ground for this rule is based on the Al Maidah verse 51 of Holy Quran which stipulates a prohibition for choosing a leader that is not from the same faith (non-moslem).
One notable case occurred in 2017 when a former and strong candidate for governor of the capital city of Indonesia was a non-moslem. 24Despite, legally there was no challenge for the nonmoslem participation, the process of the election proved to be more complicated when religion and cultural concept soared during that period on the basis of the Al Maidah verse 51 of Holy Quran.
Adding by political tension, the governor election in 2017 in Indonesia presented a conflict between the cultural concept which based on Holy Al Quran and the rights granted by the constitution and the provision on Article 25 of ICCPR 24 The governor election that ended on April 2017, in Jakarta, the capital city of Indonesia.There were two candidates for the election with one of them named Basuki Tjahaya Purnama alias Ahok.He is a Christian which comes from the minority religion population in Indonesia (at least 90% of faith in Indonesia is Islam).The other candidate is Anies Rasyid Baswedan who is a Moslem.As the politic battle went on, the election became another sensitive issue involving religion.Anies` supporters blew up the faith issue by recited the Al Maidah verse 51 of Holy Quran which refers to a prohibition for choosing a leader that is not from the same faith.Some people believed that this that ensures the right of each person to participate either directly or indirectly in conducting in public affairs, to vote and to be elected.
Unlike in the case of land acquisition where the constitution in Indonesia stipulates the 'reservation' of cultural relativism towards universal human rights vividly, the mentioned case in 2017 shows that the universal concept of human rights can be not in line with religion and cultural values that lead us to cultural relativism.
The law of the constitution itself, indeed, grants the freedom and equality of each person to participate in the government.The Article of 28 D.3 of the constitution is a part of amendment article which was made in 2000 to only support the value of international concept which means Article 28 D.3 is not genuinely come from the culture value in Indonesia, but as a new compromise to promote and respect human rights.
By implementing this regulation, GOI tried to overwrite the culture value for leader`s requirement where religion should be opt-out.However, in practice, the result showed that in critical and intense period, voters still uphold and ted to force the culture value to choose their leader based on their religion`s guide only, by neglecting the concept of fair and justice beyond specific religion issue. 25s a malicious plan to decrease the potential vote for Ahok who was recognized gaining 76% of satisfaction rate for his job as the incumbent governor.See Riana Friski, "Survey Shows Increase of Support For Ahok-Djarot," Tempo, 2017, https://en.tempo.co/read/news/2017/04/12/057865427/Survey-Shows-Increase-of-Support-For-Ahok-Djarot.
25 Johanes Herlijanto, "Commentary: Why Jakarta's Voters Turned Away from Ahok," Channel NewsAsia, 2017, http://www.channelnewsasia.com/news/asiapacific/commentary-why-jakarta-s-voters-turnedaway-from-ahok-8754154%3E.This anomaly, which differs us from previous case of land acquisition case, shows a form of 'culture shadow' which means that political and social condition are arduous to change the long-lived value of culture.Even if the effort has been made and ready to challenge it, it will take an enormous and slowly endeavor to replace it with the new one.
Eventually, it proves that even if a capability is recognized and its functioning is allowed by law, it takes time to change the culture, even its shadow, to promote the universal of human rights` fulfillment.

Conclusion
In the earlier section, we understand that human rights are recognized by the entire civilization across the states.Thereby, it is impossible to expect the same value that can be precisely accepted without any deviation.People may agree on the same capabilities.Afterward, it depends on the available opportunities and how to function it.Sen was aware on this, and that is why he was arduous to establish the exact and final capabilities and how to function it.He believed that each society on different space and time could see things differently.This paper is vigorously based on that thought and believe there should be space for cultural relativism on functioning the available opportunities of capabilities to achieve human rights.
In the last part, this paper has demonstrated how cultural relativism affects the deviation of universal human rights.What we can learn from this is, we believe universal human rights is significant for political and constitutional purpose.Something has to be written as clear legal norms.However, the real law is what people have in their mind and heart, the sense of justice and moral to believe what is wrong and what is right.
As long as it feels right according to vast majority of people in the society, then it must be accepted as the real justice, the real human rights.Sometimes it has tantamount with the written law; sometimes they have not.Eventually, human rights are what people believe what they ought to choose and to be as common acceptable thought in which they find the appropriate way to fulfill it; otherwise, it will be only a selfish right.
b. Political Participation Another compelling fact in the different function of human capabilities in Indonesia is shown in politic participation.Legally, based on the Indonesia 1945 Constitution, Article 28 D.3 stipulated every citizen has the right to participate in the government.
17DESA, "State of the World ' s Indigenous," The Existence of Cultural Relativism and Its Approach on Different Function of Human Capabilities: A Case from Indonesia 8| Jurnal Nurani Hukum : Jurnal Ilmu Hukum, Vol.5 No.1 Juni 2022, ISSN.2655-7169