By:  Iman Sjahputra, SH., SpN, LL.M *)

     MORE than four decades, prevailing law which stipulates on nationality in this country that is Law No. 62 Year 1985 applies discriminatively.  Nationality which should be the right of each citizen, which in essence shall be under the frame of Human Rights, has been neglected for 48 years due to cooptation of  political interest, the effect of which has been that many of the state’s generations have become “step children” in their own country.

      Now, after Fraction in the House of Representative (DPR) in it Plenary Meeting states its approval to issue Draft Law on Nationality to replace Law No.62 Year 1958, the expectation was that the problem of nationality is no longer full of political interest which is discriminative in nature.  It is even called that this new law a phenomenal and progressive product of Legislative.  Law which provides nationality of its citizens is seen especially by the adhoc team in House of Representative which create this law is no longer discriminative in nature.  And even it said that this new law on nationality is no longer bias with gender and ethnic discrimination.

      Even so it does not mean that this new law which is deemed revolutionary in nature leaves no problem unsettled.  Some point critics are still given to this newly approved law which was issued on 7 July 2006.  This new law still gives opportunity which give authority to the state write off nationality of its citizens.  We can see this in Article 26 of Law on Nationality provides that an Indonesian woman who married with a foreigner who wants his wife to follow nationality of the husband may lose her Indonesian nationality, unless the woman remains state that she holds her Indonesian nationality after 3 years of her marriage. This provision has been criticized as it is deemed to become gravel in the gender equality.  The statement that this new Law on Nationality is no bias gender becomes blurry because nationality of a woman may lose.  It means that the statement that nationality is human right of each citizen irrespective of the gender becomes less accurate.  This new law remains stipulate that marriage may cause the loose of nationality of the wife.

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      Statement that nationality is human right of each citizen remains hold loosely in the provisions of the laws.  This provision remains open opportunity for the loose of nationality of its citizens.

      Article 23 also provides that an Indonesian national who stays overseas for 5 consecutive years may lose his/her nationality if she/he does not state that he/she will remain hold his/her Indonesian nationality .

      Thus even if many people said that this new Law on Nationality  has new paradigm remain open the opportunity for the state to write off someone’s nationality due to administrative matter, whilst in essence he problem of nationality is not merely administrative in nature  but more of human rights.

      So is the case with bi nationality for the generation born in the mixed marriage. This new law, even if it is more progressive than that of Law No. 62 Year 1958 which only recognizes absolute single nationality, but with limitation of age, where after a kid has reached the age of 18 years shall determine whether he/she will follow his/her father or mother nationality – this stipulation is deemed less fair because it may affect the unity of a family, where by a son who wants to follow his father nationality but wants to live in Indonesia according to her mother’s nationality will be faced  with some cumbersome problems of administrative in nature! For example regarding immigration, staying permit, and so on.

      But we still thank for this new law even though we have to wait for 30 days effective as of 7 July 2006 for its issuance as a Law.  At least no more terminology or it has erased debate on whether someone belongs to original Indonesian national or not.

      Article 2 of this new Law on Nationality provides on who that can become a national – quoted from Article 26 of Constitution 1945 – which reads, “Those who becomes Indonesian nationals are indigene Indonesian and other nationals whom legalized by law as nationals”.  In the elucidation of the new Law on Nationality it is stated that meant by “indigene Indonesian” is an Indonesian who becomes an Indonesian national as of his/her birth and has never received any other nationality upon his/her own will.

      This provision has wide impact, because who else the generation in this country, without any exception is no longer required proving his/her “originality of nationality” like in the past. This matter at last causes ethnic discrimination especially for those of Chinese generation whom in the past became the object for “squeezing” because they were required to obtain SKBRI (Letter of Evidence of Nationality).

      We all must be aware of that how someone loves a country is not determined by his/her race, ethnic, group and religion.  Even nationality is not a guarantee that he/she will be loyal to his/her country, more over it is determined by SKBRI alone.

      That’s why we salute that this new Law on Nationality provides appreciation of achievement of someone toward Indonesia.  It is provided in Article 20 that President may grant nationality to a foreigner who has merits for Indonesia.  The requirement is that that person has achievement that brings development and good name of Indonesia in international level.

      Besides that, President may also grant nationality to a foreigner due to reason of state interest category of “state interest” where a person deemed by the state to have contributed extraordinarily for sovereignty of the state in addition to developing progress in economic field.

      Other thin to note is that since this new law still has weakness as mentioned above thus its implementation will have to be guarded by “the son of the country”  in order to be applied as expected.  Socialization of this new law is needed including its synchronization with other prevailing laws relating to nationality, like Law on Immigration, Civil Registry and also with Civil Law provisions.

      More over this new Law on Nationality iterates that by issuance of this law then other prevailing laws such as Government Regulation, Presidential Instruction  and Minister Regulation shall no longer valid.  Thus the government shall proceed to issue Implementation Rule within 6 months and other regulation within the level of Ministerial Regulation shall no longer valid after 3 months.  Thus it is expected that no longer step child of this country.

*) The writer is a practicing lawyer in Jakarta.