1. law, govt and politics

JURNAL OPINIO JURIS
Vol. 17  Januari – April 2015
REVIEW BUKU
: Treaties Under Indonesian Law: A Comparative
Judul
Study
Penulis buku
: Dr. iur. Damos Dumoli Agusman
Penerbit
: PT. Remaja Rosda Karya
Bahasa
: Inggris
Jumlah halaman
: 554 Halaman
Tahun penerbitan
: Oktober 2014
Pembuat resensi
Indonesia’s
: Professor Simon Butt, B.A. LL.B., Ph.D.
legal
system
has,
since
the
declaration
of
independence in 1945, laboured under a major shortcoming: no law has
established the precise status of international law within the domestic
legal order. Over the decades, Indonesia has signed more than 4000
international agreements, yet their precise legal effect - that is, the extent
to which they bind Indonesian officials and institutions, including judges
in courts - has been uncertain. One result appears to have been
inconsistency, with some officials and courts being willing to apply and
enforce international law ‘directly’ and others refusing to do so without a
direct act of ‘transformation’ – that is, the adoption of the subject matter of
an international agreement within an Indonesian legal instrument, or at
least a declaration of ratification within such an instrument.
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Vol. 17  Januari – April 2015
For most commentators, my self included, the reason for this lack of
clarity has been somewhat of a mystery. How can the world’s fourth
largest nation, and an active participant in international affairs, provide
no clear guidance to its own institutions and citizens about the rights and
obligations that arise when Indonesian officials sign an international
agreement? Happily, this mystery has now been solved, or at least
explained, in an excellent new book: Treaties under Indonesian Law: a
Comparative Study by Dr Iur. Damos Dumoli Agusman, SH. MA.
According to Dr Agusman’s convincing explanation, before Suharto’s fall
in 1998, the role of international law within the domestic legal system had
not been considered a particularly important issue by previous
administrations. Under the ‘Old Order’ of Indonesia’s first president,
Soekarno, international law was treated with some disdain and largely
ignored. After all, it had been mostly created by western powers, many of
which had colonised the developing world, including Indonesia. Why,
then, should Indonesia submit to the rules of the West – this time by
choice? For some Indonesians, international law was also irrelevant to
their concerns to build a strong nation. Indonesia even withdrew from the
United Nations (UN) in 1965, arguing that it was ‘blatantly against our
colonial struggle’ and ‘against the lofty principles and purposes of the UN
Charter’. Nevertheless, international law was taught and studied in law
faculties across Indonesia. But it was treated as a separate discipline,
entirely divorced from the study of Indonesia’s domestic legal system. It
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emerged almost as a body of theory rather than a body of law that had
practical implications for citizens and government alike.
Indonesia’s second President, Suharto, sought deeper international
engagement
than
had
Soekarno
and,
therefore,
participated
in
international lawmaking fora. (Yet, as Dr Agusman notes, Indonesia’s
participation was sometimes directed towards bucking principles of
international law, including in the law of the sea.) However, like many
countries, Indonesia adopted areas of international law that suited its
interests and avoided those which did not. International agreements that
were in Indonesia’s interests – such as those that sought to promote trade
– were often readily endorsed by Indonesian officials without much
controversy. By contrast, Indonesia preferred not to sign up to many
human rights agreements.
In the post-Suharto era, the Indonesian government has, according to
Agusman, found itself under greater pressure, both domestic and
international, to adopt legal standards based on international norms.
Accordingly, Indonesia has signed up to a wide variety of international
agreements,
including
the
human
rights
treaties
that
previous
administrations had avoided. Many domestic Indonesian laws were then
amended or replaced to incorporate many norms of international law as
their own. Perhaps the most conspicuous adoption of international norms
was the insertion, in 2000, of an extensive Bill of Rights into Indonesia’s
Constitution, which draws heavily from the major international human
rights declarations and conventions.
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Vol. 17  Januari – April 2015
However, a fundamental question has remained: if Indonesia signs an
international treaty, does that treaty automatically come into force in
domestic law (the so-called ‘monist’ position), or does it require some
form of ‘transformation’ (the ‘dualist’ view), that is, an enactment of
domestic law to bring it into force? Applied to the Bill of Rights, for
example, if Indonesia had already ratified the International Covenant on
Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights would it need the Bill of Rights? In other
words, would the human rights norms of the two Covenants have already
formed part of Indonesian domestic law once ratified? Or was
‘transformation’ – in this case, inclusion of the rights contained in the
Convention in the Constitution or some other legal instrument –
necessary for those norms to become part of Indonesian law?
This question is still unanswered in Indonesia, which is one of the only
countries in the world that does not specify, in its Constitution or some
other law, or through judicial practice, the precise status of international
law within its domestic legal system. The result is the emergence of
various interpretations and inconsistent practices, resulting in uncertainty
about the precise effect of treaties under Indonesian law. It is quite
surprising that during the overhaul of Indonesia’s 1945 Constitution
across four amendment rounds (1999-2002), the issue was not decided, let
alone raised as an issue for serious discussion. However, uncertainties
about the precise status of international law have certainly not stopped
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Indonesia’s executive from entering into international agreements, and
Indonesia’s national Parliament from ratifying them.
The value of Treaties under Indonesian Law: a Comparative Study is not
merely, as the title suggests, its discussion of the status of treaties within
domestic Indonesian law. It also provides excellent coverage of highly
theoretical and difficult material: the various theories that have evolved to
explain the reception of international law within legal systems and the
domestic rules for the formulation of treaties. Dr Agusman discusses
monism and dualism, engaging with very sophisticated and scholarly
debates across legal traditions and long periods (Chapter II). One of the
book’s other strengths lies in its use of comparative analysis – in
particular, comparing the treaty-making powers and the status of treaties
in China, South Africa, Germany, the Netherlands and, of course,
Indonesia. Chapter III discusses treaty-making powers in these domestic
legal systems, in an effort to ascertain whether ‘there is a correlation
between the structure of a treaty-making power and the question of
domestic status of treaties’ (p. 44). Chapter IV covers the relationship
between treaties and domestic law, again using these countries as case
studies.
Chapter IV’s coverage of the inconsistencies in the domestic treatment of
international law that have emerged in Indonesia is excellent. It provides
information and analysis that was not previously available, significantly
advancing debate about whether Indonesia tends towards monism or
dualism. For example, the author discusses a draft of the Treaties Law,
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Vol. 17  Januari – April 2015
which required national legislation to implement an international treaty if
that treaty would have had the effect of amending or replacing existing
legislation or creating norms that did not previously exist under domestic
law. Agusman describes the treatment of international law in statutes and
in judicial practices (including Supreme Court and Constitutional Court),
cataloguing
many
cases,
not
discussed
in
previous
Indonesian
scholarship, in which Indonesian courts appear to have directly applied
international law without implementing legislation. As for reform, Dr
Agusman wisely argues that Indonesia should build up a legal regime to
clarify the status of international law on basis of existing constitutional
order rather than changing it abruptly. In Dr Agusman’s words, ‘The
reconstruction should clarify the vague of legal constructions and fill the
gap that exists in the current order, resulting from the lack of doctrine’.
This wonderful and timely book attempts to grapple with this
fundamental issue and many related to it. Given Indonesia’s increasing
engagement with the international community, the importance of this
work to Indonesia’s legal development cannot be overstated. Not only
does it cover an issue of critical importance, it is also a highly scholarly
work that contributes significantly to Indonesian doctrine on international
law. Although it does not – and in fact cannot – solve the problem is that
it raises, this is not through lack of analysis and scholarly rigour. In short,
this must rank as one of the best books derived from a doctoral
dissertation written by an Indonesian legal scholar. It is all the more
impressive because it is based on work produced while the author was
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simultaneously working as the consul general of the Republic of
Indonesia in Frankfurt.
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