The rules and practices surrounding
the incorporation of international law into the Indonesian legal system have
long been mired in a state of convenient confusion. While Indonesia is
relatively compliant in entering into international agreements on a range of
topics, the path by which such commitments could ever go on to assume the force
of law within the Indonesian domestic legal space has been left studiously unclear.
States tend to absorb international legal
principles into their own national legal systems by one of two ways. The first
school of thought, known as Monism, suggests that
once an international instrument has been signed, it is then automatically
incorporated into the domestic legal system as law, overriding any conflicting
principles to the extent of any inconsistencies.
The second school of Dualism takes
issue with automatic incorporation due to the way in which it subverts the role
of the legislature. Rather than preserving law-making power as the domain of
elected representatives, Monism creates scope for the executive branch to alter
national laws in radical ways purely through the unilateral signature of a
convention. In pushing back against this erosion of legislative power, Dualism
necessitates an approach of “hard transformation”, wherein principles of
international law can only become part of domestic law by being passed as a
matter of domestic legislation, like any other law.
The problem with Indonesia is that it
falls somewhere in between Monism and Dualism. Furthermore, the process by
which international law is absorbed has remained unclear since independence in
1945. In a Monist system, signature of any particular convention means that a
country is henceforth legally bound to observe its principles. In a Dualist
system, it is understood that signature and ratification of an international
agreement means nothing until the parliament can follow through with
accompanying domestic legislation that formally accedes to the content within
the convention.
In a mixed system such as Indonesia, the
international community has as much of an idea as to whether the signing of an
agreement has any legal effect as the citizens of Indonesia themselves possess.
Indonesian law itself gives no guidance as
to how international law is received into domestic law, and the practice of
courts on this matter has been deeply inconsistent. The legacies of Dutch rule
have left Indonesia with a number of Monist features in how it treats
international law, with scholars such as Kusumaatmadja suggesting
that automatic incorporation is likely in cases where the particular
commitments are highly technical or limited in nature. In numerous cases, the
Supreme Court and the Constitutional Court have cited international conventions
as having been automatically incorporated into
Indonesian law; in other cases, such as the categories noted in Law No. 24/2000,
conventions will only have effect once they have been made the subject of
national laws.
Indonesia has made further moves towards
dualism through Law No. 7/2014, which
provides that treaties directed toward enhancing Indonesian market access must
be approved by the legislature. On the other hand, Monist influences can be
detected in the fact that both Vienna Conventions have been applied in
Indonesian courts in the absence of domestic legislation; this one incident of
automatic reception contrasts rather starkly, however, with the reluctance of
the courts to apply UNCLOS until it had been made the subject of Law No. 6/1996.
The impression created by Indonesian
gestures toward Monism leaves many within the international community to assume
that Indonesia practices automatic incorporation, thus allowing the state to
dodge further international pressure to reform its domestic laws. In response
to criticism on its human rights or environmental track record, or the
difficulty victims face in accessing legal recourse after suffering
discrimination, the Indonesian government can point to a plethora of
conventions it has signed on these topics; no matter, then, that in practice
these signatures provide zero basis on which Indonesian claimants could ever
bring a case.
Furthermore, if indeed Indonesia can be
regarded as a Monist system, the notion that law-making power rests solely with
the elected representatives of the legislative must be regarded as fiction. If
it lies within the province of the president or the foreign minister to enter
unilaterally into international agreements, and if judges can thereafter be
relied upon to apply these as direct sources of law in the absence of
legislative approval, then the executive branch holds power to alter laws in
drastic ways. Even if the Indonesian system is not exclusively Monist, the
readiness of some judges to implement certain agreements automatically—and the
lack of clear limitations on the extent of their capacity to do so—sets a
dangerous precedent for the abuse of executive power.
The trend within post-Soeharto Indonesian
jurisprudence seems to indicate that the courts are more or less practicing a
Dualist approach towards the incorporation of international law; however, the
courts seem to have been careful to avoid committing themselves to any path
that would decisively settle the Monism/Dualism debate. Although it is the
right of every state to determine the process by which it receives
international law, it should be incumbent for Indonesia to clarify the process.
The present state of affairs leaves the international community uncertain as to
whether an Indonesian signature is of any value, creates uncertainty for those
facing Indonesian courts as to what exactly constitutes the law of the land,
and arguably allows Indonesia to delay committing to genuine reform.
Sally Andrews studies Law/International
and Global Studies at the University of Sydney, and is currently on exchange at
the Law Faculty of Universitas Islam Indonesia. She was the 2016 Indo-Pacific
Fellow for Young Australians in International Affairs and a 2016 winner of the
National Australia-Indonesia Language Award.
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