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Damos Dumoli Agusman*

The recent discussion of Mr. Simanungkalit and the Professor Juwana in Jakarta Post is worth observing. Both appear to share the fundamental view that the Law No. 38 of 2008 “ratifying” the ASEAN Charter shall not be subject to judicial review by arguing that the law a form of legislation for one time action by the government (beschikking) and not a regulation (regelling). Professor Juwana however left another question: how people may exercise their right to judicial review if a certain treaties contradicts the Constitution?.  He then suggests the government should take at least three important steps. First, discussion in academic papers on constitutionality of the treaty, second, to ensure the negotiated text is compatible with the Constitution. Third, extra care when acceding to international agreements.

While agreeing with these practical suggestion, I am of the view that the real answer is not merely in the practical level but that in constitutional level. In the practical level the Law No. 10 of 2004 on Legislation (article 35) has prescribed and opened up a space for public including academic participation for the law making, including the law ratifying a treaty. The Law No. 24 of 2000 on Treaties also stipulates the extra care when entering into a treaty by taking into account not only the Constitution but also, in contradiction to the international standard, the national legislations and interests.  The existing legal frameworks seem to have embodied Professor Juwana’s suggestions and even appear to be more cautious than he suggests on the treaty makings.

Having said that, his question on how the constitutionality of the treaty could be checked and tested is not only relevant but should wake up the Indonesian constitutionalists experts. It is not a mere practical question calling for practical answers but  it is indeed an academic and constitutional question that is too big and too important for the Government alone to deal with. Before we deal with the question on constitutionality of treaties, we should first answer the legal status of treaties under Indonesian Law. In this respect Indonesian scholars have contrasting views. The legal nature of Law No. 38 of 2008 ratifying ASEAN Charter might be perceived differently. While international law experts regard it as a (beschikking), most people and scholars in Indonesia have difficulties to accept why the said Law is not a Law as they understand under the Law No. 10 of 2000 on Legislations.
The question on the domestic status of treaties (and the legal consequence to be judicially reviewed) is not a new but old issue for constitutional law. American and European countries have dealt with this question since the twentieth century. Due to its complexity they started to address the issue in the academic intercourse instead of leaving it to the state and government practices only. For Indonesia perhaps it is a new “interesting” matter simply because Indonesia is a new “rule of law” state having a newly established constitutional court for which constitutionality of a treaty becomes open.

The domestic status of treaties has been long abandoned in the academic discussion in Indonesia and so far leaves the Government to deal with it through state practices. Until recently the issue had not attracted attention of the scholars and lawmakers and did not constitute an academically controversial issue in Indonesia.  At least two main reasons are account for this. First, the constitutionalists and internationalists in Indonesia were busy in their own sphere of expertise and viewed treaties in their own term. For constitutionalists, while treaties are theoretically source of constitutional law, they are not being elaborated further into practical effects. It is hardly found that constitutionalists in Indonesia discuss about the domestic legal nature of treaties under Article 11 of UUD 1945. For internationalist, treaties are legal documents under international law but have no interest to deal with their domestic status. Second, due to the more heavy executive political setting in the new order era, practical question on treaties had never come into public debate and, if any, would be settled through political solution. Academic discourse was therefore discouraged.
Now the question has come to the mind of Indonesian public amidst the growing awareness of their constitutional rights. What is at stake here on the issue? To quote Professor Juwana’s question, how public could review the constitutionality of a treaty? It is argued that UUD 1945 is absent concerning this critical question. It is even absent in dealing with the domestic status of a treaty, let alone its constitutionality. Article 11 of UUD 1945 is too short to address this issue. In many democratic states, the problem of domestic status of treaties and where they are ranked in their hierarchical legal system have been settled in post WW II.

When turning to the constitutionality question, the problem becomes complex and various approaches have been adopted. A study by Venice Commission of Council of Europe in 1998 reveals that Constitutions of different democratic countries are varied. In some countries the courts are given the authority to rule on constitutionality of treaties (e.g. France, Portugal, Spain, Austria, Poland, Hungary, Russia, Bulgaria, Lithuania and Ukraine), while in other countries courts do not have such powers (e.g. Germany, Italy, Romania, Czech Republic, Slovakia). Constitutions also stipulate whether constitutionality of treaties is verified by the procedure of the prior review (France, Russia, Bulgaria, Lithuania, Ukraine), a posteriori only (Austria), or both (Spain, Portugal, Poland, Hungary). The Netherlands constitution put treaties superior even to its constitution. But one thing is clear, most of the democratic constitution provide the answer (explicit or implied)  to the question.

In this respect UUD 1945 unfortunately lags behind the modern constitution. The constitutional reform since 1999 indeed has touched article 11 on the treaty, but left the domestic status of treaties unanswered. The new provision (paragraph b of article 11) are unfortunately emphasizing more on the role of the Parliament instead clarifying the concept of treaty. The drafters were still concerned with the distribution of powers between executive and legislative and put the treaty out of their agenda. Therefore, it is in the absence of constitutional clarity that the Constitutional Court will deal with this question. Two problematic issues will come before the Court. First, what is it to be reviewed? The Law No. 38 of 2008 which consists only two articles, or the Asean Charter itself by means of reviewing the Law No. 38 of 2008? This question could only be answered if UUD 1945 is already clear about the legal status of the Law No. 38 of 2008 under the legal system. The Court might be induced to make interpretation to this unclear point. Second, if, having make interpretation, the Court declares the Charter unconstitutional; Indonesia is encountered with an unprecedented and dilemmatic legal situation.  Shall it respect its constitution by breaking international law, or shall it commit to Asean Charter by breaking its constitution? How the Court entertains this complex question will not only be of the interest of the applicant and the government but also will serve academic curiosity. But for sure, Indonesia needs constitutional answer rather than practical one.

*The writer was Director on Treaties at The Ministry of Foreign Affairs of Indonesia and currently Consul General of Indonesia in Frankfurt. This article is purely his academic view and not necessarily reflects the government’s view.


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