Wednesday, October 26, 2016

Convenient confusion: Indonesia's incorporation of international law

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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