(Executive
Summary of Dissertation, Goethe University of Frankfurt, 2014)
Dr. iur. Damos
Dumoli Agusman[1]
damos_agusman@yahoo.com
http://perjanjian-internasional.blogspot.com
1. Constitutional Ambiguities concerning
Treaties under Indonesian Law
At present, the legal status of treaties
under Indonesian law is still ambiguous in nature. By using traditional
monist-dualist theories as tools of analysis and the empirical basis of
comparative research, it was revealed that the existing constitutional order of
Indonesia has not adequately addressed the legal status of treaties under its
domestic law. In practice, there are various constitutional interpretations on
their domestic status in Indonesia that are at variance with one another, and
mutually negate each another. Different interpretations have led to different
outcomes. Such various different interpretations stem from various
constitutional ambiguities that exist in the constitutional order of Indonesia.
The ambiguities are created by the following: unclear constitutional provisions,
poorly drafted statutory laws concerning treaties, no theoretically informed
basis, and inconsistent constitutional practices. The constitutional
ambiguities have resulted in legal uncertainty about the precise effect of
treaties under Indonesian law.
The remnants of the monist legal approach
of the Netherlands had occupied the legal thoughts of many Indonesian scholars
in the earlier period of independence. Many scholars viewed that once a treaty
enters into force, it binds Indonesia. Thus the question of deciding on its
domestic status was considered unnecessary. The influence of Indonesian
constitutional experts in the years to come, coupled with the emerging issues
of non-self-executing treaties in international practice, apparently affected
such monist legal thoughts, which in turn brought up a dualist legal view in
scholarly fields.
In subsequent practice, the two
conflicting theories have inadvertently influenced the observations of many
scholars in Indonesia within their respective spheres. The debate was however conducted
without any theoretically informed concept or academic guidance due to a
shortage of legal expertise and a lack of international legal references. The
domestic order was influenced by the absence of a theoretical backup. Thus the
legal construction existed without any necessary concept relevant to the
determination of the domestic status of treaties, such as the mode for granting
domestic validity, the hierarchical rank of treaties in domestic law; etc.
The strict separation of the academic
disciplines between constitutional law and international law in Indonesia also
contributed to the deficiency of the domestic order. The two academic
disciplines never collaborated and did not keep each other well-informed. The
constitutional order is understood partially, be it from the viewpoint of
constitutional law or/and international law that was never approached through a
collaborative perspective. Constitutionalists and international law experts in
Indonesia interpreted the order in an uncoordinated manner and imposed their
own terms in interpreting the constitutional provisions for their own respective
academic fields. Both groups of experts understood treaties in their isolated schools
of thought and independent perspectives. As a result, the constitutional
approach became incoherent because it ignored relevant international aspects of
domestic law. The understanding of treaties by international law experts lacked
domestic legal aspects. Such rudimentary and incomprehensive outlooks apparently
caused and exacerbated the said constitutional ambiguities.
Although the sentiment of nationalism, the
culture of resistance or indifference towards the so-called ‘colonial’
international law in Indonesia since the 1960s has been fading away, there was
still no great interest among Indonesian scholars to place treaties properly in
domestic law until recently. Policy option is still absent in the
constitutional agenda. No intensive scholarly debate has to date significantly taken
place on the matter. Various factors account for this. From the experiences of the
states under comparative examination, this kind of attitude appears to be
typical in developing countries that have no close connection to the Western
legal tradition, as evidently shown by China. The following historical facts
have contributed to the typical unenthusiastic attitude: Indonesia developed
its own legal system by disconnecting it from the legal tradition of its former
colonial states, its geo-political isolation from intensive international
interactions, and the hostile attitude of Indonesia towards international law
in the earliest phase of independence. The authoritarian government regime in
the aftermath delayed the development of the constitutional order on treaties.
The need for a clear regime of the domestic aspect of treaties arose only after
Indonesia entered into a democratic system in 1999, 54 years after gaining independence.
As Indonesia continues its transition
toward a fully democratic system, the question concerning the legal status of
treaties to which Indonesia is bound shall be adequately addressed and their validity
under domestic law shall be constitutionally determined. Their domestic
treatment can no longer rely on discretionary power. To serve this purpose, Indonesia
needs a clear basis for their domestic application as well as their
constitutional legitimacy. Such a clear basis could be achieved by optimizing
the existing legal regime.
There are at least three constitutional
ambiguities that need to be resolved with a view to optimize the existing legal
regime concerning the status of treaties under Indonesian law:
a.
The
utmost ambiguity is rooted in the existing constitutional provisions i.e.
Article 11 of the Constitution of 1945: The President, with the approval of
the DPR[2], declares war, makes
peace, and treaties with other states, which is considered too simplistic
and largely influenced by the provision from the Meiji Constitution. While in
Meiji Constitution prescribed that “the Japanese
Emperor was empowered to make treaties”), the Indonesian version was only
slightly modified through the insertion of the words ‘with the approval of the House of Representatives’. Such a formulation
has raised many legal difficulties in practice as it may be interpreted that Parliament
could be involved in all stages of the treaty-making process and that all
treaties are subject to parliamentary approval.
b.
The
second problem concerns the role of Parliament in treaty-making, in view of existing
constitutional practices which arises from the first ambiguity. The practice
distinguishes its functions in a strict manner i.e. whether it is within the
ambit of legislative function or otherwise its oversight functions. This has
created confusion and brought up a number of versions in the understanding of the
outcome of parliamentary participation in treaty-making. According to the Law
No. 24 of 2000 on Treaties, the parliamentary approval takes a form of ‘law/Act
of Parliament approving treaties’. The choice unintentionally tends to create
the said prescription that the determination of the domestic status of treaties
would correspond to the legal effect of parliamentary participation. This is in
particular when it comes to how one signifies the law approving treaties as the
outcome of such participation. On the one hand, the view that parliamentary
participation in treaty-making is within the ambit of legislative function has
tended to induce the interpretation of the law approving a treaty as a
legislative product. On the other, there also appears a view that such
participation is within the ambit of the Parliament’s oversight function, which
tends to create a strong assertion that the law approving a treaty is merely a
formal expression of parliamentary approval.
c.
The
third relates to the consequence that indirectly took place due to the second
ambiguity, which relates to the mode of granting the treaty domestic validity.
The choice has created a double interpretation with regard to the law approving
a treaty. On the one hand, the view that the law approving treaties is a
legislative product has induced the idea that it constitutes a transformation
into domestic law. The other view states that the law is merely a formal
expression of parliamentary approval and has led to an approach whereby the
treaty, upon its entry into force, is considered as adopted instead of transformed
into domestic law. The entry into force of the treaty in international law is
considered identical with its entry into domestic law.
2. Policy Options
Since neither monism nor dualism is
satisfactory, and no single constitutional order subscribes to strict monism or
dualism as well as to a stringent mode of adoption or transformation, the idea of
establishing a constitutional order on the basis of pure monism and strict
dualism is not realistic and therefore should not per se serve as policy option. However, the knowledge of the
conceptual divide between the two theories is considered as owing great
importance towards a proper understanding concerning the different attitudes of
states in giving domestic effect to treaties, and provides a clear perspective necessary
for a starting point in the formation of policy in the constitutions.
Various approaches in the actual practice
of states illustrate that, under both monism and dualism, the distinction
between the validity of treaties under international law and under domestic law
becomes inevitable. It is increasingly held in the actual practice that
international law and domestic law have their own standpoint in dealing with
the relationship between treaties and domestic law by which different outcomes
may arise. At this stage international law remains silent on how domestic law
should meet treaty obligations. This is because the nature of such obligations
is normally that of obligations of result, with the exception of human rights
treaties, which have been arguably seen as imposing obligations of conduct. It
is therefore not feasible to maintain a policy which holds that the domestic
validity of a treaty is dictated by international law, as monism suggests, or
to view that a treaty under international law is completely separated from that
of a treaty under (which is transformed into) domestic law, as dualism
suggests. Actual practice of states demonstrates that both are distinguishable
but inextricable. Policy consideration shall therefore include these converging
and diverging elements of monism and dualism.
The
experiences of the states under review reveal that a constitutional regime
regarding the domestic status of treaties is not supposed to change abruptly
from one doctrinal approach to another. Building up a legal regime on the basis
of the existing constitutional order is more appropriate for Indonesia. It is
therefore suggested that Indonesia optimizes its legal regime by reconstructing
the existing legal framework rather than creating a completely new framework.
The reconstruction should clarify the vague legal constructions and fill the
gap that exists in the current order, resulting from the lack of doctrine. For
this purpose Indonesia needs to have clearer constitutional provisions and at
the same time it has to fix the existing constitutional ambiguities arising
from the distorted practice. The legal concept available at the theoretical
level may provide helpful directions.
3. Parliamentary Participation
Indonesia is already equipped with
democratic constitutional infrastructures that may serve to build up a clearer
legal regime with regard to the question of the status of treaties in domestic
law in which parliamentary participation may be well facilitated. There exist
sufficient state organs that are basically required for a modern state, inter alia, President, Parliament, and
also the various types of judicial institutions. The treaty-making power can be
properly allocated among the state organs.
The existing constitutional arrangement
has, however, invited criticism for its ambiguity. The simple and ambiguous provision
under the Constitution as such could be widely interpreted in a manner that
Parliament is involved in all stages of the treaty-making process and gives
consent to all treaties. The clarification made by Law No. 24 of 2000 on
Treaties which technically modified the original meaning of the provision of
the Constitution, has appeared to constitute unintentionally a
quasi-constitutional amendment and given rise to the question of
constitutionality. For a coherent system, this constitutional defect must be
fixed so that all parliamentary powers should only be given effect by the Constitution.
The subsequent practices of treaty-making
of the states under review, in light of the proliferation of subject matters
that require parliamentary approval, have suggested that parliamentary
participation should not necessarily be determined on the basis of a distinction
between its legislative function and oversight function. The existing
constitutional setting, which tends to regard the law approving a treaty as
either merely a legislative product (within the ambit of legislative function)
or otherwise merely a formal expression of parliamentary approval, is not
helpful in describing the proper role of Parliament. The current democratic
system has prompted an extensive participation of Parliament in all matters
that are related to political and economic strategic interests as well as
matters that may affect the rights and obligations of individuals. In this
regard, the outcome of parliamentary approval, in the form of statutory law,
shall be attributed to the general function of Parliament without necessarily referring
to the distinction between those functions. Parliamentary participation may
embrace all matters within the ambit of legislative function, oversight
function as well as budgetary function. Therefore, all functions are equally
necessary and should be attached to parliamentary participation in treaty-making.
4. Criteria of Treaties that require
Parliamentary Participation
The criteria as set out in Law No. 24 of
2000, which are on the basis of a general description of subject matters, are no longer adequate for two main reasons.
First, the criteria should be stipulated in the Constitution instead of the
lower legislation as it stands now, since this very matter relates to the
allocation of constitutional powers which belong to the Constitution. Second,
these criteria greatly emphasize on politically-heavy matters concerning the
very existence of the state and exclude, in most parts, matters that affect the
rights and obligations of individuals which fall under the legislative domain.
As apparent from the comparative outlook, legislative power is nowadays vested
in Parliament. On the other hand, there is a growing number of treaties intended
to produce legislative effects. It is therefore compelling to include matters that
are subject to legislation in the criteria. The inclusion of matters of
legislation into the criteria will prevent the drafting out of legislation through
backroom deals without parliamentary control. Other important matters that
carry political and economic strategic interests of the state may be added to
the criteria.
The criteria on the basis of
constitutional separation of powers between Parliament and President are
apparently more feasible than making a distinction between a political and an
executive/technical nature of a treaty. The complexity and wide range of
subject matters covered by treaties under globalization have created
difficulties in drawing such distinctions in the practice. It is not always
easy to assess treaties as technically and politically important. Therefore, other
treaties which do not fall into the category of those that require
parliamentary approval shall relate to matters that are, according to the
Constitution, exclusively under the purview of government powers.
The existing legal framework raised a
problem because the subject matters that are qualified to be embodied in a
statutory law should be according to a set of criteria, determined by Treaties Law
No. 24 of 2000 and Law No. 12 of 2011 on Legislation. The former deals with
criteria of treaties that are subject to parliamentary approval in the form of
statutory law, and the latter determines what subject matters should be
embodied in statutory law. The criteria set out by the two Laws overlap and are
uncoordinated, which seemingly reflects the differences in legal thought
between experts of constitutional law and international law. They bring about
great disparities in terms of their subject matters and thus the two laws need
to be synchronized.
The criteria for having a treaty approved
in the form of a statutory law need to be revised. As suggested above, it is
preferable that the criteria shall be construed on the basis of, and therefore
covering, all parliamentary functions. The first criterion concerns treaties
that contain subjects of legislative matters. Treaties regulate matters which, according
to prevailing regulations, shall be the content of a statutory law. This must then
be submitted to Parliament for approval and acquire the order of execution in
the form of statutory law. The second criterion concerns matters that effect
strategic interests of Indonesia, over which Parliament performs the function
of oversight or monitoring control. These may be matters concerning political
and economic strategic interests, the application of which will affect the very
existence of Indonesia as an independent state. These treaties may not
necessarily affect the rights and obligations of individuals and may be outside
of legislative matters. The most frequently quoted treaties under this
criterion are, inter alia, boundary
treaties; defense and security treaties; and friendship treaties. For these
treaties, the statutory law may only grant authorization to the President to
ratify them. The third criterion concerns treaties relating to state budget.
This kind of treaty generates financial burdens for which a specific financial
plan shall be allocated in the state budget. Loan agreements or memberships to
international organizations that involve financial contribution belong to this
kind of treaty as well.
As envisaged from the
comparative analysis, the government decision determining that a treaty
according to its subject matters requires no parliamentary approval may be
subject to constitutional dispute. It may lead to the abuse of power and result
in arbitrary decisions if the discretion is entirely left to the government
unchecked. The model of the Netherlands, where the Parliament is empowered to
decide otherwise, would apparently prevent such abuse. Upon the submission of
the list of treaties under negotiation to Parliament, the government may
indicate that the treaties in question do not require parliamentary approval
but, on the contrary, Parliament may decide, on the basis of its own
interpretation according to the criteria that the treaties shall be subject to
its approval.
5. Modes by which Treaties are
incorporated into Domestic Law
The comparative analysis offers various
options concerning the modes for granting domestic validity of a treaty where all
of the options have already been interchangeably adopted in the practice and
held by scholars in Indonesia. As a former colony of a monist state, Indonesia
is not unfamiliar with the monist-adoption mode because it had practiced this
approach in its early years of independence and therefore, in terms of legal
tradition, its legal system was rooted in a monist basis. The
dualist-transformation mode has also found its expression in the legal
practices in Indonesia. Since 1974, there has been a growing tendency which
considered the law approving a treaty as constituting transformation by which
the treaty becomes valid in domestic law. Now, there exists another variant of
the transformation mode where the law approving a treaty is still regarded as a
formal expression of parliamentary approval but separate transformation
legislation is still required for granting domestic validity to the treaty.
Indonesia is also familiar with providing
reference provisions in domestic law by which a treaty may acquire domestic
status upon its entry into force. Despite the fact that the mode may
effectively give effect to a treaty in domestic law, the scope of this mode is
still limited to specific treaties and is not expected to provide a general
rule which applies for all treaties. This mode may, however, complement a
general mode, particularly in determining the special status of a given treaty
with regard to its hierarchical rank.
As a former colony of a monist state, the
monist tradition continues to occupy the mindset of policymakers at the
Ministry of Foreign Affairs. The Indonesian position towards the UN Human
Rights Body can be described as one that is aimed at carrying out its
international obligations faithfully at the domestic level, without giving due
regard to possible dualist barriers. Historical facts point out that dualism
does not belong to the Indonesian tradition - Indonesia was never influenced by
the common law dualist system and it was never persuaded by the dualist
thinking of Triepel or Anzilotti. Tendencies to portray a dualist posture in
its subsequent legal practices should not to be misunderstood as a proper
dualist attitude taken up by Indonesia. It is an expression of public sentiment
in Indonesia that international law is nothing but international morality, or that
this branch of law is not familiar to Indonesia. In this regard, a dualist
perspective is not only seen as unfamiliar to Indonesia but also as not having
a basis in its legal system.
Globalization meanwhile has given rise to
the need for protecting the legal interests of domestic law in light of the pressures
arising from democratic legitimacy. The idea of democratic legitimacy finds its
expression in the current political setting where the principle of rule of law
(Rechtsstaat), democracy, as well as
checks and balances are high on the political transformation agenda. The
political attitudes arising from the current democratic transition has induced
many policymakers to pursue a dualist preference, as has been indicated by a
number of cases brought to courts, in which a greater call for shielding
domestic law from international intrusion has been expressed. The two aspects
shall therefore play an important role in the policy options by which a radical
monist as well as a strict dualist mode becomes untenable. The best mode
Indonesia could adopt may be reached by reconciling the interest of democratic
legitimacy, on the one hand, and removing unnecessary legislative burden, on
the other.
The monist-adoption mode had been
practiced by Indonesia in the earliest period of independence but was then
gradually abandoned in the wake of nationalism and constitutionalist pressure
that arose in the subsequent period. The monist character of the first mode
might not impress constitutionalists in Indonesia at the present stage, at a
time when democratic values play an increasingly important role on the
political agenda. Constitutionalists developed a constitutional law during the
pre-reform regime in favour of nationalism by which they have been more
accustomed to domestic legislations than to treaty rules. The presence of
treaty rules in domestic law without the cover of domestic legislation as
envisaged by this mode will invite strong resistance from those legal enforcers
who are mostly unfamiliar with treaties that have not been incorporated into
legislation.
The dualist-transformation may look
compatible to the existing legal practice but it is not free from distorted
constitutional features. The first concerns the allocation of powers among constitutional
organs that are involved in the treaty- making. From the inception of the state,
treaty-making power in Indonesia was not under the exclusive competence of the
executive. Indonesia has therefore not subscribed to the constitutional
distinction between treaty-making by executive and treaty implementation by
legislature as is widely known in dualist states. The application of dualist transformation
in Indonesia will create a procedure where the same organs will conclude a
treaty and transform it into domestic legislation in a separate arrangement.
This procedure will be excessive because there will be two different statutory
laws for the same treaty i.e. the law approving the treaty for ratification and
the law transforming the treaty into domestic law. In this regard, Indonesia
should not subscribe to a mode that requires it to enact two different and
separate laws devoted respectively to the conclusion and the granting of municipal
validity of a treaty. From a procedural perspective, the mode will overburden
the legislative bodies because with the same procedure they are required to
enact two different laws for a relatively similar purpose. The two may actually
be given effect by virtue of the same and a single law. Furthermore, two
different kinds of parliamentary treatment to a treaty will create a dilemmatic
question of great constitutional importance i.e. whether Parliament, having
granted the approval to the ratification of a treaty, may reject its transformation
into domestic law through the same course of action as may occur in the South
African system.
The second problem concerns the place of
transformed treaties in the legislative structure arising from the system of Stufenbau. Indonesia subscribes to a hierarchical legislative
system based on Kelsen’s Stufenbau that,
according to the current law, is divided into eight different levels. The
complex situation of this legislative hierarchical system, if applied
consistently, will create legal difficulties in placing the transformed treaty rightly
in light of so many levels of legislation. It will bring about too many
different hierarchical ranks of treaties and give rise to a complex
relationship between them in domestic law.
From the substantive perspective, the
dualist-transformation mode will not be easily adaptable with regard to certain
treaties that are concerned with human values, such as human rights treaties,
and financial interests, such as tax treaties. These treaties possess
characters that mainly impose restrictions on the free will of the
legislatures. The experiences of strict dualist legal systems all over the
world have revealed that the dualist principles are increasingly eroded by the
intrusive character of human rights treaties in such a way that dualist states
are gradually forced to adopt remedial monist-like measures, such as consistent
interpretation (Charming Betsy
doctrine), the Australian legitimate expectation doctrine (so-called Teoh doctrine), and the British implied
incorporation.
The inconsistent views expressed by the Government
before the UN Human Rights Bodies have raised significant doubt whether
Indonesia is truly applying a dualist approach in respect to human rights
treaties. Indonesia has indeed persistently argued that human rights
conventions are not self-executing and this view appears to deny their
self-executing nature by unconsciously invoking dualist arguments rather than
the merits of the provisions. However, Article 7 (2) of Law No. 39 of 1999 on
Human Rights provides a general rule which gives effect to human rights
treaties whereby the treaties become part of Indonesian law upon their entry
into force. The argument that the Convention is not self-executing, on the one
hand, and the existence of reference domestic provisions declaring that the Convention
becomes part of domestic law, on the other, will weaken the assertion that
Indonesia applies a dualist approach to human rights treaties. In this respect,
human rights treaties may form part of Indonesian law but in the same vein this
fact should not necessarily imply that treaties have a self-executing character.
This feature is closer to the monist model of the Netherlands. However, on the
basis of the same Article, the Government in 2013 expressed a contrasting view
in favour of direct application. The inconsistent views overturned the
consolidation of either approach, and brought about the process of going
nowhere.
Having visited the existing
legal frameworks in Indonesia with respect to the relations between treaties
and domestic law, it is argued that Indonesia should embrace both elements and
seek a point of balance between the two dominating approaches. The most
suitable mode for Indonesia is the mode that attempts to reconcile the two
extreme approaches and at the same time keeps the balance between an
international law-friendly attitude, on the one hand, and democratic legitimacy
on the other. From the available options offered by the constitutional orders
examined, the doctrine of the order of execution (Vollzugslehre), one of the doctrines prevailing in Germany, would
be best suited for the Indonesian legal system. Some valid reasons may, inter alia, justify this policy option:
a.
The
current practice of Indonesia suggests a mixed approach that amalgamates two
models: the German dualist model and the monist model of the Netherlands. This
is exemplified through the double meaning given to the law approving a treaty
in Indonesian practice. The law approving a treaty was rooted in the model of
the Netherlands, which was originally intended to authorize the President to
ratify the respective treaty. In the subsequent practice, however, it has been
gradually understood by most constitutionalists as ‘transforming’ the treaty
into domestic law. The amalgamation of the two doctrines altogether will
present ambiguities and raise uncertainties pertaining to the legal status of
the given treaty in domestic law. The two prevailing models should therefore be
reconstructed in a manner that the two converge into a single coherent approach,
embracing both elements. Therefore, the precise legal character of the law
approving a treaty, which is still unclear and ambiguous, should be clarified.
In this regard, the law approving a treaty should be assigned the function of
expressing a formal approval of Parliament (as originally envisaged by the
framers of the Constitution) and at the same time it should constitute an order
of execution of the treaty in domestic law (as demanded by the subsequent
practice).
b.
The
doctrine of the order of execution has encompassed all constitutional concerns
that have occupied most Indonesian constitutionalists so far. First, the
sovereignty of the state in granting a treaty access to enter in domestic law
is well preserved, because it needs domestic authorization in the form of a
national legislation. The domestic law authority is well respected in the sense
that it is the domestic law that permits the entry of the treaty into domestic
law. Second, the role of Parliament as the popular representation in treaty-making
is secured, in which therefore, the democratic legitimacy of the treaty could
be upheld.
c.
The
doctrine could also ease the concern of international law experts because it
could bridge the gap between treaties and domestic law as expected by them.
International law experts would prefer this as having a closely connected
relation to a separated one thus the domestic and external procedures, albeit
distinguished, are interrelated and form part of an integrated process.
d.
The
doctrine does not envisage transformation and therefore does not need to equate
treaties with the complex structure of Indonesian legislation. The nature of
the legislation as required under this doctrine is only an order of execution,
instead of a transforming legislation, thus not all levels of legislation are
necessarily assigned to serve as orders of execution.
For adopting the doctrine, there are only
two fundamental features that need to be clarified under the present Indonesian
legal system. The first feature is that of the date of the entry into force of
the law approving a treaty, which is presently distinguished from the date of
the entry into force of the treaty itself, which shall be made concurrent.
Following the German model, the date of the entry into force of the law should
be dependent upon the entry into force of the treaty in Indonesia. The second
feature concerns the character of the provisions of the treaty to be applied in
domestic law. The provisions shall be linked with the international character
of the treaty. The provisions of a treaty applied under domestic law shall
retain their character as treaty provisions and consequently the interpretation
rules shall be governed by international law.
On the basis of this mode, the domestic courts
will treat treaty provisions as having the force of law and may directly apply
them in a given case before it without the aid of ordinary domestic legislation.
The direct application of such treaty provisions could be realized insofar as
the provisions are self-executing or capable to be judicially enforced. The
question of non-self-executing provisions is not unfamiliar to the Indonesian
legislative system. The Constitution and the umbrella laws normally provide
general provisions prescribing that their application shall be stipulated in
or, implemented by, the lower legislations. Pending the enactment of such implementing
legislations, these constitutional and statutory law provisions cannot be
enforced by the courts.
6. The Place of Treaties in the Legislative
Hierarchical Structure
In view of adopting a coherent
approach consistent with the idea of the order of execution mode, the
relationship between the statutory laws and the treaties concerned shall be
reconciled by balancing the two different views i.e. that treaties are
identical with the laws approving them, and that the two are distinguishable
legal instruments. Therefore in order to resolve the perplexity arising from
the constitutional practices, the relationship between the two shall be
construed according to the following premises:
a.
Treaties
remain distinct from the laws that give order to their execution; however, the
manner in which they are manifested in domestic law should be concurrent in
terms of the date they take effect.
b.
Under
this term, domestic treaty-making and lawmaking are exercised through the same
constitutional procedures except in the case of the right to submit the bill,
which should remain vested in the president.
c.
The
statutory laws ordering executions shall serve twofold functions i.e. first,
authorizing the president to ratify/accede to a treaty and, second, granting
domestic effect to the treaty upon its entry into force to the state.
d.
The
Constitutional Court may judicially review the laws ordering the execution of
treaties. However, a specific procedure should be set out in order to affirm
that the law ordering the execution has a unique character distinct from
ordinary laws.
The precise and appropriate place a
treaty should occupy in the complex structure of the Indonesian legislative
hierarchy would become a complicated question underlying the policy option and
bring about dilemmatic problems. The use of the form of law for incorporating a
treaty and its integration into the legislative structure might likely imply
that the process constitutes a transformation mode. Furthermore, the
legislative structure under the current system consists of eight levels of
legislations, and it is untenable to have all legislations available to perform
as an order of execution of treaties into Indonesian law. A general rule should
therefore be devised in order to determine what level of legislation is fitting
enough to be used as an order of execution, as well as what subject matters
should belong to each legislation.
The question of parallel treaties, commonly
known in the German system, may arise: whether or not an order of execution in
the form of a statutory order is still required for certain treaties if their
provisions have already been contained in the existing statutory law. The konkrete Theorie is preferable, thus
these treaties require parliamentary approval and a concrete order of execution.
The reason for this is simply that the exact parallel legislation hardly
exists, even if a piece of legislation provides mutatis mutandis provisions of a treaty, the language used in the
legislation differs from the original text of the treaties and may create
different interpretations. Parallel treaties thus require their own legitimacy
from Parliament.
Other treaties that, according to the
subject matters, do not require parliamentary approval should take the form of
regulations within the ambit of executive competences i.e. presidential
regulations or other administrative regulations depending on the given subject
matters and the corresponding competent authorities. Under the prevailing law,
there are three levels of executive regulations that belong exclusively within
the competence of the President as the Head of Government i.e. government
regulations, presidential regulations and ministerial regulations, or
regulations enacted by other government organs at the ministerial level.
The form of a government regulation could
not be used as an order of execution of a treaty. This kind of law according to
Law No. 12 of 2011 concerning Legislations serves only for the purpose of
implementing the provisions of a statutory law - a general nature of the provisions
of the given law needs to be elaborated or concretized in a number of detailed
provisions in the government regulations. Therefore, no government regulation
will be enacted in the absence of a clear stipulation by an existing law. A
treaty ordered by a statutory law generally does not require that the
provisions of the treaty shall be implemented by a government regulation,
because the treaty generally contains a set of autonomous provisions for which
no further domestic legislation is necessary, apart from the law ordering the
execution of the treaty. The government regulations may however be used as
implementing legislation to the law ordering the execution of a treaty, but not
within the context of granting domestic validity of such a treaty. It will be
only for rendering them as self-executing. For example, if a treaty has been
approved through a law and requires that state parties set up a national body
for the implementation of the treaty, the government regulation may be used to
set up this national body.
The only available regulations that may
serve as granting domestic validity of a treaty below statutory law level are
presidential regulations, and ministerial or equivalent regulations. It follows
that a treaty whose subject matters are only within an exclusive authority of a
ministry shall be brought to effect by a ministerial regulation, while a treaty
whose subject matters involve the participation of various ministries shall be
given effect through a presidential regulation. The given treaty will enjoy
rank corresponding to the respective legislation according to the legislative
structure.
The use of a legislative format as orders
of execution of treaties shall be construed in a manner that may fit the legal
tradition of Indonesia concerning legislations. Having inherited the legal
tradition of the Netherlands, laws and regulations in Indonesia may commonly be
identified by two characteristics i.e. the laws and regulations having
regulatory (regeling) character and those
having ruling (beschikking)
character. The former contains general provisions in an abstract manner and are
known as proper laws/regulations, while the latter contains a specific
prescription to a concrete circumstance. In respect of laws/regulations
approving treaties, they serve only as domestic orders to execute the treaty in
domestic law by which the provisions remain embodied in the treaties instead of
in the laws/regulations. This order character resembles the kind of
laws/regulations that possess a ruling (beschikking)
character under which they only contain orders and do not transform or rewrite
the provisions of the treaty into the legislation. Therefore, the
laws/regulations shall be identified as having ruling (beschikking) character instead of regulatory (regeling) character. This legal construction will ensure that the
character of the provisions remain in the form of treaty provisions, as
envisaged by the monist-adoption mode.
As the provinces and
municipalities/cities are empowered to enact their respective regulations,
these regulations might be used as orders of execution of treaties insofar as
the subject matters fall into their exclusive spheres. Nevertheless, although
the subject matters are within their exclusive powers, the central government’s
regulations may appropriately serve as the execution orders if the treaties are
intended to be applicable to the whole territory instead of specific provinces
and municipalities/cities. This is possible because these local regulations are
not exclusive and they are still subject to central government regulations. In
order to address the concern of the provinces and municipalities/cities, there
must be a mechanism allowing them to participate in the treaty-making
negotiations on matters that are exclusively under their competences.
As has been suggested above,
the laws ordering the execution of treaties are legislative products with a
distinct feature and therefore are reasonably subjected to constitutional
scrutinizing. Indonesia has a Constitutional Court which partially resembles
that of the German model. Thus the question of the constitutionality of a
treaty by virtue of the law ordering its execution may arise, as is frequently
experienced by the German Constitutional Court. The case of the judicial review
of the ASEAN Charter which was brought before the Constitutional Court in
recent times gave rise to the need to resolve this issue. Even if Indonesia
subscribes to an adoption approach which is closer to a monist perspective,
there is no democratic reason under the present democratic legal system why the
constitutionality of the law ordering the execution of a treaty cannot be
tested. On the other hand, the decision by the Constitutional Court that might
declare a treaty unconstitutional and therefore null and void will create unnecessary effects by
which Indonesia violates its international obligations. The constitutionality
test however should have been taken with a distinct procedure in a way that promotes
compliance to international law. The preferred solution for Indonesia is to
provide balance between the two premises that mutually negate each other by
allowing a treaty to be constitutionally tested without creating unnecessary
international obligations. This outcome could be attained by adopting the
German practice, and developing greater legal clarification on constitutional
procedures. Within this context, Indonesia should prescribe a constitutional
procedure, posing some restrictions by which a treaty upon the enactment of the
law ordering its execution may be submitted for judicial review to the
Constitutional Court within a specific time limit. Within that limit, the
President should not ratify the treaty as yet, pending a Constitutional Court
ruling on the case. Following the lapse of the time limit, the President may
proceed to the ratification and by then no submission of judicial review would
be constitutionally acceptable.
****
[1] The Author aqcuired its Doctoral degree on International Law from
the Goethe University of Frankfurt and currently the Secretary to Directorate General for
Legal Affairs and Treaties, Ministry of Foreign Affairs, Indonesia. This Article is entirely his own personal and
academic views.
[2] The Indonesian term DPR (Dewan Perwakilan Rakyat)
corresponds to the Indonesian House of Representatives (hereinafter ‘House of
Representatives’). The House of
Representatives is considered as the Indonesian Parliament. In this writing,
the term ‘parliament’ or ‘parliamentary’ will refer to the House of Representatives.