Since its establishment in 2003, the Indonesian Constitutional Court (Mahkamah Konstitusi) has referred to international law in many of its judgments. Indeed, in some of its early jurisprudence – such as in cases involving the constitutionality of retrospective criminal laws – the Court considered international law in some detail when interpreting new Indonesian constitutional provisions for the first time. By our count, the Court has referred to an international instrument in around 10% (167 of the 1729 or so) of the constitutional review cases it decided in the 20 years between 2003 and December 2023. However, the Court has not clearly explained why it mentions international law in its decisions, let alone how it should, can or will use the international law provisions and principles that it mentions. These are curious omissions because the Court does not have any obligations to mention international law in the first place. After all, Indonesian law does not prohibit any court from reaching a decision based purely on domestic law. It does not even specify that international law (even treaties Indonesia has ratified) has any domestic legal effect.
This article aims to fill the explanatory gap that the Court itself has left by developing a typology of categories of the Court’s use of international law. We have developed this typology by, first, identifying judgments that refer to international law and, second, examining those judgments for indications about how the Court appears to have used that international law. We begin by providing some necessary context: a brief description of Indonesia’s constitutional history, an overview of Indonesia’s legal system (including its judicial system and where the Constitutional Court sits within it), and the unresolved debate about whether Indonesia is monist or dualist. We then identify the international treaties the Constitutional Court has mentioned or used before setting out our typology and provide examples of the categories we have identified.
This article can be seen as a companion to a piece published in the Asian Journal of International Law in 2024 by I Dewa Gede Palguna and Agung Wardana entitled “Pragmatic Monism: The Practice of the Indonesian Constitutional Court in Engaging with International Law”.Footnote 1 Palguna was a long-serving and well-respected Constitutional Court judge. He is now an academic (at Udayana University, Bali), as Wardana has been for many years (at the prestigious Gadjah Mada University Law Faculty). They argued that the Indonesian Constitutional Court practices “pragmatic monism”, using a limited number of instructive case studies, which are notorious for the Court’s use of international law. The present article pursues a broader endeavour – seeking more to describe how the Constitutional Court uses international law in its decision-making across a more diverse range of cases than to fit this within a theoretical framework. This leads us to the conclusion, explained below, that, if anything, the Court practices “pragmatic dualism”.Footnote 2 We hope that our different conclusions will spur much-needed debate about the place of international law in the Indonesian domestic legal system.
I. Constitutional history and legal system
Indonesia is a diverse and sprawling archipelago of more than 17,500 islands spread across over 5,000 kilometres from East to West. Located in Southeast Asia, its population is around 280 million, making it the largest Association of Southeast Asian Nations economy and the world’s fourth.Footnote 3 The nation is highly diverse – in ethnicity, religious practice and socio-economic development.
Indonesia declared its Independence on 17 August 1945, after around 350 years of Dutch colonialism.Footnote 4 Indonesia has since had four constitutions. Indonesia’s first President, Soekarno, proclaimed the new Republic’s first Constitution – the “1945 Constitution” on 18 August 1945. The second was the Constitution of the Federal Republic of Indonesia, which lasted from 27 December 1949 until 17 August 1950, when Indonesia’s third Constitution – the Interim Constitution of 1950 – was brought into force. On 5 July 1959, Soekarno unilaterally reinstated the 1945 Constitution, which remained in force unamended throughout Soeharto’s New Order (1966–1998).Footnote 5 After Soeharto’s fall, the 1945 Constitution was amended yearly from 1999 to 2002.Footnote 6 Although still entitled the “1945 Constitution”, the document is now very different from its original version. The old structural core of the document remains – including Indonesia’s five-pronged national ideology, Pancasila, in the Preamble. But features of liberal democracy replaced provisions that underlay the authoritarian regimes of Soekarno (from 1959) and Soeharto.
Indonesia’s legal system is based on the Dutch legal system in place at the time of Independence. During colonisation, the Dutch had enforced a pluralist legal order. Dutch law applied to Europeans in the colony and Indonesians lived largely under customary law.Footnote 7 The 1945 Constitution retained Dutch institutions and colonial law and applied them to the entire population, pending the creation of new institutions and national laws.Footnote 8 In this way, Indonesia also inherited the civil law tradition. The Dutch Civil Code and civil procedural codes remain largely in force in Indonesia today, as do many other Dutch-made laws.Footnote 9 However, Indonesian lawmakers have issued thousands of laws in the intervening decades.
II. Judicial institutions
The Indonesian Constitution establishes two apex courts: the Constitutional Court and the Supreme Court.Footnote 10 The Supreme Court oversees four judicial branches, each with a distinct jurisdiction. These are the military courts (pengadilan militer), religious courts (pengadilan agama), administrative courts (pengadilan tata usaha negara), and general courts (pengadilan umum). Most civil litigation and criminal prosecutions are heard at first instance in the general courts, which operate at the district (kabupaten) and city (kota) level. Within select general courts are specialised courts, including an anticorruption court, commercial court, human rights court (including an ad hoc court for historical crimes), industrial relations court, and taxation court. Although judges can sit alone in some circumstances, they generally sit in panels of three or sometimes five, led by a chairperson. Each court has a chief justice (ketua) and at least one deputy chief justice (wakil ketua).
A. The Constitutional Court
Before the Constitutional Court’s establishment, Indonesia had no tradition of constitutionalism, in the sense that the government considered itself bound by the Constitution.Footnote 11 While successive governments claimed to rule under the Constitution, there were no mechanisms by which citizens could hold the government to it, such as by challenging the constitutionality of government actions or laws. The 1945 Constitution was vague, allowing the government to interpret it at will. Even the handful of rights mentioned in it were unenforceable.Footnote 12 Constitutional review, arguably a prerequisite to constitutionalism, was not available in Indonesia until 2003, when the Constitutional Court heard its first case.
The Constitutional Court has several functions, including constitutional review.Footnote 13 This is significant, because the 2000 amendment to the Constitution inserted a catalogue of human rights that largely reproduce the rights granted in key international human rights treaties (including the International Covenant on Economic, Social and Cultural Rights [ICESCR] and the International Covenant on Civil and Political Rights [ICCPR]).Footnote 14 However, this power is limited to assessing the consistency of national statutes with the Constitution. This means that the Constitutional Court cannot formally review the constitutionality of other types of laws, such as government, ministerial and local-government regulations, or even government action.Footnote 15 The review of regulations for consistency with statutes falls to the Supreme Court, and the review of government action to the administrative courts.Footnote 16 On the whole, this jurisdictional separation is strictly maintained. In practice, this is a very significant limitation, given that most Indonesian laws take the form of regulations.Footnote 17 The Constitutional Court also has no power to determine whether the decisions of other courts are constitutional.
The Constitutional Court has nine judges. The three arms of government – the president (as head of the executive), the legislature, and the Supreme Court – are each responsible for filling three positions on the bench. If a position becomes vacant, such as through retirement or dismissal, the institution that nominated the outgoing judge fills the vacancy.Footnote 18 When the Constitutional Court was first established, its judges could serve up to two 5-year terms.Footnote 19 They elected their own chief and deputy chief justices, who held their positions for two years and six months.Footnote 20 In 2020, the Constitutional Court Law was amended to remove judicial terms. Now, judges cannot be removed until they reach the mandatory retirement age of 70, unless they meet the conditions for dismissal, such as neglect of duties or misconduct.Footnote 21 The minimum age for Constitutional Court judges was also lifted from 47 to 55.Footnote 22 Further, the amendment doubled the terms of chief and deputy chief justices from two-and-a-half years to five.Footnote 23 At the time of writing, the national parliament was considering further changes to these terms and requirements.
Over the two decades since its establishment, the Court developed a public profile and reputation in Indonesia that appeared stronger than any other Indonesian court. This was arguably the product of strong leadership (at least from its first two chief justices, Professors Jimly Asshiddiqie and Mahfud MD)Footnote 24 and its prominence as a forum for relatively free debate about important matters of state. Its decisions in those matters, some of which have been controversial, even polarising, generally contain more detailed reasoning than the decisions of other Indonesian courts. Also notable have been the Court’s overall independence and integrity, at least during its first decade or so. In recent years, these qualities have been questioned, with two of its judges (including a serving chief justice) being convicted of taking bribes.Footnote 25 Another judge was replaced by the national parliament for issuing decisions that the parliament deemed unfavourable to it.Footnote 26
Most recently, the Court came under heavy fire after it reversed a string of its own decisions refusing to reduce the statutory minimum age limit for presidential and vice presidential candidates.Footnote 27 It reversed these decisions in October 2023, in the leadup to the deadline for nomination of presidential and vice-presidential candidates for the 2024 presidential elections. This decision enabled then-serving Indonesian President Joko Widodo’s 36-year-old son, Gibran Rakabuming Raka, to be nominated as a vice-presidential candidate (a position he ultimately won as President Prabowo Subianto’s running mate). The Court’s decision appeared to be made at the behest of its then-Chief Justice, Anwar Usman, who is Raka’s uncle. The entire Court was hauled before an Ethics Council (Majelis Kehormatan). All judges were formally admonished, and Usman was removed from the chief justiceship (although he remains a judge and may yet see his position restored).Footnote 28 There are, therefore, real concerns about the Court’s impartiality and credibility and, ultimately, its future after the 2024 elections. While we regard the decisions discussed in this paper as genuine and independently-arrived-at, it is too early to say whether the Court’s future decisions will be. Political interference and corruption pose significant threats.
Despite these controversies, the Court has, through its decisions, created a body of constitutional jurisprudence that Indonesia had previously lacked.Footnote 29 These decisions have, in turn, generated a vast academic literature on the Court, both in Indonesia and elsewhere. Much of this literature has focused on the Court’s interpretation and application of Indonesia’s constitutional Bill of Rights, added to the Constitution in 2000. These cases have involved, for example, the right to life,Footnote 30 freedom of religion,Footnote 31 and indigenous rights.Footnote 32 While some of this literature has considered the Court’s treatment of international law in those cases, very little of it has focused on the role of international law in the Court’s decision-making.Footnote 33
B. Relationship between international law and domestic law
The literature on the status of international law within domestic legal systems commonly refers to countries following “monism” or “dualism” or something in between. For Kelsen, an influential proponent of monism, international and domestic law should be seen as components of a single system, with international law being “above” domestic law (even national constitutions).Footnote 34 By contrast, dualism holds that international and domestic law are different systems, with different fields of operation: international law primarily governs international relationships, while domestic law governs intranational relationships (such as between subjects or the state and its subjects).Footnote 35 On this view, for international law to be applied in a domestic legal system, it must first be transformed into rules of national law. These are mere theories.Footnote 36 While some states might be influenced by them more than others, in practice, they are of limited utility because they do not explain how states actually behave.Footnote 37 Most states have developed their own ways of giving effect to international law (if they give effect to it at all).Footnote 38
The position of international law in Indonesia’s domestic legal system is unclear. It has not been specified in any legal instrument or judicial decision. The Constitution itself mentions international agreements, but does not specify their status. Instead, it specifies merely that the president can enter into treaties, but must first seek parliamentary approval if the agreement has “broad and fundamental consequences for the lives of the Indonesian people, creates burdens on the state’s finances, and/ or requires amendments to laws or the enactment of new ones” (Article 11(2)).
This legal gap has led to much academic discussion and speculation about whether Indonesia follows “monism” (where international law automatically forms part of domestic law) or “dualism” (where international law does not form part of domestic law until it is transformed or implemented in domestic law, such as by passage of legislation or another type of regulation).Footnote 39 This discussion has primarily focused on the position of treaties, ignoring other important sources, such as customary international law.
Most Indonesian scholars conclude that Indonesia is dualist, at least regarding treaties, observing that many ratified international treaties lie dormant and unenforceable by Indonesian courts until they are transformed into domestic law by statute or regulation.Footnote 40 However, others reach the opposite conclusion: that Indonesia is monist.Footnote 41 Whatever the true position of international law within Indonesian domestic law, the result in Indonesia is significant uncertainty and confusion about whether rules in international treaties ratified by Indonesia automatically form part of Indonesian law.
This confusion is fueled by judicial inconsistency, with many Indonesian general courts ignoring arguments based on human rights arguments, and others, including the Supreme Court, directly applying it.Footnote 42 Generally speaking, however, these general Indonesian courts tend to treat international law as a source of ideas, rather than a source of legal obligations with domestic effect.Footnote 43
On our reading, the Constitutional Court addresses international law more regularly than these other Indonesian courts. We now turn to consider how it has used international law in its decisions.
III. International treaties cited by the Constitutional Court
As stated above, the Constitutional Court has mentioned an international legal instrument in around 167 of the 1729 or so constitutional review cases it decided between its establishment in 2003 and December 2023.Footnote 44 While the Court has mentioned customary international law, it has not specifically identified or applied principles of customary international law in any case we know.
The Constitutional Court has mentioned in its judgments all of the major international human rights treaties Indonesia has signed and ratified, except for the Convention on Rights of Persons with Disabilities. Table 1, based on our own searches, identifies the number of judgments in which each of these treaties appears.
Citations of major international human rights treaties.
The Court has also referred to the United Nations Declaration on the Rights of Indigenous Peoples, even though Indonesia has signed but not ratified it.Footnote 45
The Court has cited other types of international and regional agreements that Indonesia has signed and ratified, as follows in Table 2.
Cited agreements that Indonesia has ratified.
The Court has also mentioned instruments produced by organisations of which Indonesia is a member (even where the instrument itself might not be strictly binding). These include various conventions of the International Labour Organization (ILO) (seven judgments); United Nations comments, resolutions and congresses (seven judgments); World Trade Organisation agreements (five judgments); and an Organisation for Economic Co-operation and Development declaration one1 judgment).
Interestingly, the Court has referred to the Vienna Convention on the Law of Treaties (7 judgments), even though Indonesia has not signed, let alone ratified, it. Of course, the Court’s references to the Vienna Convention are not controversial. Even though the Convention is not in force, given that an insufficient number of its signatories have ratified, it is considered to represent the general international law of treaties.Footnote 46 The Court has also mentioned European conventions (four judgments) and council directives (two judgments). Of course, these are not binding on Indonesia, which is not a European country. It has also extensively considered various instruments emphasising the importance of judicial independence (five judgments), particularly the Bangalore Principles 2002.
IV. The Constitutional Court’s use of international law
As mentioned at the outset, the Constitutional Court has not clearly explained why it mentions international law or how it should, can or will use international law principles. Nevertheless, in our observation, in practice, the Court uses international law in specific ways. In this section, we describe these uses and provide case examples, offering hypotheses to explain those uses.
A. General impressions
As a preliminary matter, we note that, in some cases, the Court has declared that because Indonesia has ratified a specific treaty, Indonesia is bound by that treaty under the pacta sunt servanda principle.Footnote 47 In this context, the Court sometimes refers to the Vienna Convention, Article 38(1) of the Statute of the International Court of Justice, or even simply that as a member of the international community, Indonesia is bound to the treaties it signs.Footnote 48 To underline the point, the Court sometimes adds that, under Article 27 of the Vienna Convention, a state cannot use its national law as an excuse for failing to implement an international agreement to which it is otherwise bound.Footnote 49
Nevertheless, the Court’s affirmations that Indonesia is bound by the treaties it has ratified are occasionally accompanied by a statement asserting Indonesia’s “sovereignty”.Footnote 50 So, for example, in decision 86/PUU-XIV/2016, the Court declared that Indonesia was bound by Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) because it had ratified it, but emphasised that the Constitution allowed the state to limit, under Article 28J(2) of the Constitution, rights CEDAW might otherwise impose.Footnote 51 The Court has also pointed out that Indonesia can choose whether to be bound by international agreements and withdraw from participation if desired.Footnote 52
Given its emphasis on ratification obligations but also Indonesia’s ultimate sovereignty, it is perhaps unsurprising that the Court appears to have avoided expressing a view on whether Indonesia follows monism or dualism (which, as mentioned, is unresolved under Indonesian law). The only reference we could find to the monism/dualism debate is equivocal and is as follows:
As a result of Indonesia’s participation in an international agreement, particularly if it is a convention, and particularly if the view that Indonesia follows dualism is followed…then the participation requires national implementing legislation, that is, making international law (in this case, the Convention) a part of national law through enactment into national law so that it binds all citizens.…If international law is adopted into national law through implementing legislation…then that international law has been adopted into national law…Footnote 53 [our emphasis]
A notable case that presented an opportunity for the Court to clarify whether Indonesia was monist or dualist was Constitutional Court decision 102/PUU-XV/2017, which concerned the constitutionality of Law 9 of 2017.Footnote 54 In response to Indonesia’s signing of the Convention on Mutual Administrative Assistance in Tax Matters (the “Tax Convention”), the Indonesian government produced two legal instruments: Presidential Regulation 159 of 2014 and Law 9 of 2017. The applicants argued that only one of these instruments was necessary and that having both caused legal uncertainty (which violates Article 28D(1) of the Constitution). The Court pointed out that the applicant had mistaken the purpose of the Presidential Regulation which, according to the Court, merely conveyed Indonesia’s consent to be bound to the Tax Convention (under Article 11 of the Vienna Convention). By contrast, Law 9 of 2017 was passed to “implement” (melaksanakan) provisions of the Tax Convention.Footnote 55
What the Court meant by “implement” is unclear. The Court pointed out that Law 24 of 2000 on International Agreements requires conventions such as the Tax Convention to be endorsed by the Indonesian national parliament. The Court said that Law 9 of 2017 provided this endorsement for the Tax Convention. However, the Court did not go so far as to say that Law 9 of 2017 was intended to transform the content of the Convention into domestic law. It is quite possible that the Court merely intended that under Indonesian Law, binding Indonesia to the Tax Convention required a statute, not a mere presidential regulation. That statute did not need to carry the treaty’s substance into Indonesian law; it could merely convey Indonesia’s ratification and leave the transformation of the Convention to subsequent legislation or regulation.
In a handful of cases, the Court has described how international law has influenced the content of domestic law, or even prompted its enactment. For example, the Court has stated that changes to Indonesia’s anticorruption laws have accorded with efforts to “synchronise and harmonise national and international legal instruments”, such as the United Nations Convention against Corruption (UNCAC) (which, the Court noted, Indonesia has ratified).Footnote 56 In one employment-related case, the Court referred to a new Workplace Law being enacted to replace an old one, not just because the old law no longer accorded with the “demands and current developments”, but also to realise guarantees for the basic rights of workers that were in line with various ILO conventions.Footnote 57 However, in our view, the Court cannot be taken, in these cases, to have suggested that international law has supplanted domestic law. Rather, it has confirmed that only domestic law directly applies in Indonesia; international law may influence Indonesian law-makers but will only apply if domestically enacted.
B. Bolsters domestic principles
The Court commonly refers to international law when one of the rights or principles of international law is the same as or similar to domestic constitutional rights or principles.Footnote 58 Here, the court sometimes also observes that those rights or principles are “universal”. In particular, the Court has emphasised the universality of Indonesian constitutional principles by reference to international law in cases involving the prohibition of discriminationFootnote 59 and the presumption of innocence.Footnote 60 However, the Court’s reference to universality should not be taken to mean that the Court will use international law to interpret or apply the domestic constitutional right as a matter of course. (It certainly uses international law in this way, but only in a limited number of cases, as discussed below.) Indeed, the Court has stressed that this use of international law does not mean that the Court has used “fulfilment of international obligations…as a basis to review the constitutionality of a statutory norm”.Footnote 61
How the Court expresses the identity or similarity between the domestic and international law differs from case to case. For example, it sometimes sets out the domestic source of the right and then says “so too” (demikian juga) the international source.Footnote 62 In others, the Court says that the constitutional and international rights are “consistent” (sejalan dengan)Footnote 63 or “conform” (sesuai) with each other.Footnote 64 However, one trend is clear. The Court almost always refers to the relevant domestic legal principle before referring to its international counterpart. Exceptions are very rare.Footnote 65 In our view, this may be a deliberate textual strategy that emphasises the pre-eminence of the state’s obligations under the domestic Constitution while also implicitly justifying the content of that domestic law by reference to international standards.
The Court has taken this domestic-source-first approach in many cases, as demonstrated in Table 3.
Court cites domestic legal source before the international source.
1. Discrimination cases
In discrimination cases, the Court has often referred to Indonesian discrimination law – contained in the 1999 Human Rights LawFootnote 66 and the Constitution – and noted that it is “consistent with” (bersesuaian dengan) or “in line with” (sejajar dengan) these international treaties, notably the ICCPR and Universal Declaration of Human Rights (UDHR),Footnote 67 or that discrimination was prohibited by both Indonesian law and these treaties.Footnote 68 In other words, the Court appears to have used international law to support or confirm its decisions about discrimination based on the Constitution and domestic law.Footnote 69
Some discrimination cases have involved challenges to statutes preventing particular categories of citizens from standing for election.Footnote 70 In one famous case, former Indonesian President Abdurrahman Wahid, along with several others, challenged the constitutional validity of Article 6(1) of the 2003 Election Law,Footnote 71 which required candidates to be “spiritually and physically capable of performing the duties and responsibilities of President or Vice President”.Footnote 72 The applicants argued that this was discriminatory and thus breached several constitutional provisions, including Article 27(1) of the Constitution, which grants all citizens the right to equality before the law, a right that the provision says the government must protect “without exception”.Footnote 73 The applicants also argued that Article 6(1) breached Indonesia’s international obligations under the ICCPR, which Indonesia had ratified. Article 25 of the ICCPR states: “Every citizen shall have the right and opportunity … [t]o take part in the conduct of public affairs … and to be elected at genuine periodic elections which shall be by universal and equal suffrage”, without unreasonable restrictions.
The Court observed that the applicants should have referred to Article 2 of the ICCPR, which contains various prohibited grounds for discrimination.Footnote 74 Nevertheless, the Court found that Article 6(1) of the 2003 Election Law did not, in fact, discriminate on any of these grounds.Footnote 75 In its reasoning, the Court referred to Article 21(1) of the UDHR. Article 21(1) establishes the right to take part in the government of one’s country, either directly or through freely chosen representatives. Though the Court noted that the UDHR’s principles were internationally accepted,Footnote 76 it emphasised that Indonesian law provided the same protections:
[T]he principles mentioned in Article 21 of the Universal Declaration of Human Rights are general principles accepted by the international community …[B]ecause Indonesia is part of the international community, it implicitly recognises these principles in the Preamble, Part IV of the Constitution, and explicitly mentions them in Chapter XA, Articles 27(1) and 28D(3) of the Constitution.Footnote 77
Another example of the Court’s treatment of discrimination is Decision 028-029/PUU-IV/2006.Footnote 78 Here, the applicants argued that the statute under review was discriminatory because it only provided various protections to Indonesian workers abroad who were at least 21 years old. A majority ultimately rejected this challenge. However, when determining what constituted discrimination under the Constitution, the majority set out Article 1(3) of Indonesia’s 1999 Human Rights Law, which, the Court noted, contained a definition of discrimination similar to that of Article 2 of the ICCPR.Footnote 79 The Court then referred to a European Community Council Directive, which sets out examples of differential treatment based on age that do not constitute discrimination.Footnote 80
Also notable is the Court’s use of international treaties to bolster findings that an impugned statute is not discriminatory. It has done this in cases involving statutes that differentiate between legal subjects, but not on race, religion, gender, or social status (specified as grounds for discrimination not only in domestic law, but also in the UDHR and the ICCPR).Footnote 81 The Court has, for example, taken this approach to reject the argument that prerequisites for nomination for public office are discriminatory (observing that this applies to all candidates and their nominating parties).Footnote 82 It has also pointed to various international legal sources to show that only legal subjects, and not objects such as tobacco,Footnote 83 or modes of transportation,Footnote 84 were entitled to freedom from discrimination. Here, the Court pointed out that the ICESCR includes 10 bases for discrimination against people: race, colour, sex, language, religion, political, or other opinion; national or social origin; property, birth, or other status.Footnote 85
2. Limitation of rights
The Court has also cited various international agreements, such as the UDHR, ICCPR ICESCR, to support the argument, based on Article 28J(2) of the Indonesian Constitution, that constitutional rights can be limited in some circumstances – such as to maintain public order, or the dignity or honour of an individual.
So, for example, in some cases, the Court has set out or mentioned Article 28J(2) of the Constitution and pointed out that Article 29(2) of the UDHR and Article 19(3) of the ICCPR impose similar limitations or at least are “consistent” with Article 28J(2) of the Constitution.Footnote 86 While this might be read as using international law to justify the limitation of constitutional rights, there is little to commend this view. This is because, like in many of the discrimination cases just described, where the Court limits rights, it mentions the domestic constitutional source for the limitation before the international source. In the words of the Court, limiting rights “does not just not violate the Constitution, but also does not violate general legal principles recognised by the international community, such as … Article 29(2) of the UDHR”.Footnote 87
A classic example of rights limitation occurred in one of the Court’s first cases – the Bali Bombing case of 2003. In this case, the applicant (Abdul Kadir) had been convicted of involvement in the 2002 Bali Bombings and sentenced to 15 years imprisonment under an anti-terrorism law that was enacted after the Bombings took place.Footnote 88 Kadir pointed to a separate law that expressly purported to permit this anti-terrorism law being applied retrospectively to pursue him and other perpetrators. Kadir argued that this breached his constitutional right to freedom from prosecution under a retrospective law, provided in Article 28I(1). This provision states:
The right to life, the right to not be tortured, the right to freedom of thought and conscience, the right to religion, the right to not be enslaved, the right to be recognised as an individual before the law, and the right to not be prosecuted under a law of retrospective application are human rights that cannot be limited under any circumstances (emphasis added).
By a majority of five judges to four, the Court decided that the statute was unconstitutional. In reaching this conclusion, the majority attributed significant weight to the fact that the freedom was retrospective prosecution was included as a right that “cannot be limited under any circumstances” in Article 28I(1).Footnote 89 To support this conclusion based on a textual analysis, the majority referred to provisions of international human rights conventions that supported the prohibition on retrospectivity,Footnote 90 observing, for example, that Article 28I(1) had been “adapted” from Article 15 of the ICCPR.Footnote 91
However, the majority opinion in Bali Bombing remains an outlier in the Court’s right limitations jurisprudence. The minority in that case, and the Court (whether unanimous or by majority) in subsequent cases, has adopted a more expansive interpretation of Article 28J(2) of the Constitution that permits the limitation of rights expressed as non-derogable in Article 28I(1).Footnote 92
The Court has attempted to justify this limitation by referring to international law. In these cases, the Court argues that, because the provision limiting rights appears at the end of a section on rights in both the Indonesian Constitution and the ICCPR, they can be read to apply to all of the rights that precede them in the documents.Footnote 93
For example, the majority in a subsequent case about freedom from retrospective criminal laws took a similar view to the minority in Bali Bombing. Here, Abilio Jose Osorio Soares (former Governor of East Timor) challenged Article 43(1) of Law 26 of 2000 on the Human Rights Court.Footnote 94 Under this provision, proceedings in the Human Rights Court had been initiated against him for alleged human rights abuses in East Timor in 1999. Article 43(1) states: “[G]ross violations of human rights which occurred before this Law is enacted [can] be heard and adjudicated by the Ad Hoc Human Rights Court”.
In this case, a majority of the Court found that Article 28I(1) rights were not absolute in all circumstances. Those rights must be read alongside Article 28J(2), which allows exceptions to “satisfy just demands in accordance with moral considerations, religious norms, security and public order”. The majority decided that Article 43(1) could be applied to pursue “gross violations of human rights”, defined under Article 7 of the Human Rights Court Law as genocide and crimes against humanity.
The majority in Soares attempted to justify this decision using Articles 11(2) and 15 of the ICCPR. The judges decided that these provisions prohibit laws of retrospective operation only if the act in question was not a crime under national or international law – or the general principles of law recognised by the community of nations – at the time the act was committed. The Court also referred to Article 4 of the ICCPR, which allows the state to derogate from its obligations under the Convention during public emergencies, provided that derogation does not contravene international law or involve discrimination.Footnote 95
Another example involves the Court’s 2009 decision relating to dishonouring religion, usually referred to as “blasphemy”.Footnote 96 Here, the Court refused to disturb the prohibition on dishonouring religion because the prohibition was needed to protect various constitutional religious rights.Footnote 97 In reaching this decision, the Court distinguished Article 28J(2) from Article 18 of the ICCPR. Article 28J(2) allows religious considerations to be taken into account in the limitation of the rights of others, but the ICCPR does not. While this comparison did not result in the Court rejecting or criticising the ICCPR, it provided a point of distinction from Indonesian law, which helped the Court justify its decision.Footnote 98
Finally, we provide an example from Constitutional Court decision 78/PUU-XXI/2023. This challenge was brought by two activists, Haris Azhar and Fatiah Maulidiyanty, who were being prosecuted for allegedly spreading a hoax relating to powerful politician Luhut Binsar Pandjaitan (Coordinator Minister for Maritime and Investment in the Widodo administration). The Court upheld their challenge, but when considering whether free speech rights could be limited under Article 28J discussed the UDHR and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information.Footnote 99
C. Reliance for interpretation or justification
The Court has also used international legal principles and interpretations from international bodies to help it construe the Indonesian Constitution, the statute being reviewed in the case, or both.Footnote 100 This approach is well-expressed by one judge in a case involving employment rights: “[I]n order to understand the right to work” in the Constitution, “it is best to carefully study” various rights in international treaties.Footnote 101
So, for example, in a case concerning copyright and rebroadcasting, the applicants argued that whether “relaying” could be considered “rebroadcasting” within the meaning of one of the impugned provisions was unclear and, hence, the provision was unconstitutional (as mentioned, the Indonesian Constitution includes a legal certainty guarantee in Article 28D(1)). In response to this argument, the Court appeared to rely on international definitions, under which “rebroadcasting” encompassed “relaying”, pointing to the International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations, which is an appendix to the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement.Footnote 102
In another case, the Court was asked to rule on the constitutionality of a Truth and Reconciliation Commission, established in 2004 to hear allegations of past human rights abuses.Footnote 103 Among the applicants’ objections was that the statute that established the Commission had permitted the president to award amnesties to perpetrators who confessed in some circumstances and upon payment of compensation. The Court decided that this provision was unconstitutional. In fact, the Court invalidated the entire statute, given that amnesties were integral to it.
In reaching this decision, the Court said that international law prohibited amnesties for gross human rights violations. The Court said:
An amnesty sets aside legal protection and justice guaranteed by the Constitution. [Rejecting amnesties] is universal practice and custom as contained in the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, which stipulates that there must be adequate, effect and prompt reparation for harm suffered.…This is the interpretation used to view Articles 28A, Article 28D(1) and Article 28I(1), (4) and (5)… Footnote 104
In yet another case, the Court used Article 11(1) of the ICCPR (as ratified by Law 11 of 2005) to define “basic human needs” to include clothes, food and shelter. The impugned law only regulated food, but this did not result in unconstitutionality, given that other statutes regulated the provision of clothing and housing.Footnote 105
In some cases, the Court refers to international law in an apparent effort to justify not its decision but rather the content of national law. For example, in one case concerning the death penalty, the Court seemed to justify the apparent harshness of Indonesian narcotics laws – particularly the availability of the death penalty under them – by reference to international law. In this case, the Court referred to the United Nations Convention Against Illicit Traffic in Narcotic and Psychotropic Substances (1988) as evidence of the seriousness with which the international community viewed narcotics offences, and noted that Indonesia is a party to that convention. “Therefore, it is an international legal obligation for Indonesia to implement the rules of the Convention in good faith”, including the obligation to “maximise the effectiveness of law enforcement measures in respect of those offences, and with due regard to the need to deter the commission of such offences” (Article 3(6) of the Convention). The Court said that the imposition of harsh (keras) penalties was ‘part of the fulfilment of Indonesia’s international obligations and “can be justified as is implicitly encouraged by” the Convention. Indeed, as the Court pointed out, the Convention even permitted the imposition of even more severe measures than those provided by the Convention.Footnote 106
1. Dissents
Dissenting judges have also used international law to interpret the Constitution and relevant statutory provisions. These cases are significant because, on our reading, these judges have used international law to justify their departure from the majority reasoning. We present three examples here.
In the first case, three dissenting judges appeared to use the ICESCR requirement that states give effect to the right to health “to the maximum of their available resources” to interpret various constitutional provisions concerning the right to health, health care, and adequate health facilities.Footnote 107 Article 28H(1) guarantees provision of health care (amongst other entitlements). Article 34(3) requires the state to provide adequate health and public facilities. In light of the ICESCR, the dissenting judges held that the impugned provision (which permitted, but did not require, the state to give special recognition to those involved in overcoming a pandemic) failed to reflect the ICESCR and these constitutional provisions (interpreted in light of the ICESCR).Footnote 108
The dissents in our second example come from a 2006 case concerning the constitutionality of the minimum age requirement of 21 years for Indonesian migrant workers.Footnote 109 Here, the majority upheld the minimum age, deciding that this was a matter for the legislature to determine. However, all four dissenting judges argued that the age limit violated the right to work, using as a reference point the ILO Minimum Age Convention 1973 (No 138) (which prohibits child labour, but does not set a 21-year age limit).Footnote 110
Finally, in an important dissent, Justice I Dewa Gede Palguna refused to add “naming as a suspect” as a ground upon which a pretrial hearing (praperadilan) could be brought. These are proceedings, regulated in a handful of provisions of the Code of Criminal Procedure, at which defendants can challenge the legality of their arrest or detention, and of them being formally named as a suspect (roughly equivalent to being “charged” in other legal systems). One of the reasons Justice Palguna gave for refusing was the ICCPR, which requires only that any person be able to challenge the lawfulness of their arrest or detention. The ICCPR does not mention being named a suspect as a ground for challenge. Because not including this ground did not violate Article 9 of the ICCPR, Justice Palguna saw no reason to question its constitutionality.Footnote 111
D. Underplays or rejects international law
In some cases, the Court has openly declared that the Constitution and national statutes – and not international law – are its reference points in constitutional review cases.Footnote 112 For example, in a case about the constitutionality of affirmative action, the Court declared that the policy
has been accepted by Indonesia and derives from CEDAW, but because in the present application the Court is faced with a choice between the 1945 Constitution [which refers, in Article 28H(2), to the right to special treatment in some circumstances] and these policy imperatives based on CEDAW, what must be prioritised is the 1945 Constitution.Footnote 113
The Court has also emphasised in several cases that the UDHR only represents a “statement of ideals”, with “no direct binding legal force”,Footnote 114 and that its principles must be adjusted to the “ideology, religion, social and culture of the people in each country”.Footnote 115 Nevertheless, the Court has also accepted that many of its principles have been picked up in Indonesian legal instruments.Footnote 116
Former Justice Roestandi appeared to warn against over-reliance on international law along a similar line in several dissents. Although political and international law developments might be relevant in some cases, he emphasised that the Constitution was the highest source of validity for Indonesian statutes. As such, the Constitution trumps international law.Footnote 117 As Roestandi wrote extramurally, “[m]y task as a constitutional court judge is to review the constitutionality of a statute as against the Constitution, not to review the Constitution against international law.”Footnote 118
More rarely, the Court has explicitly rejected international norms, even though the Court appears to have been influenced by them. It is unclear to us why the Court has done this, because in these cases the Court has not used this rejection of international law to reach a conclusion inconsistent with international law. In Decision 1/PUU-VIII/2010, for example, the applicants raised several international law arguments to challenge the validity of the age of criminal culpability being eight years old for some offences.Footnote 119 In its decision, the Court lifted that age to 12, which was in line with the UN Committee on the Rights of the Child. However, the Court emphasised that in adopting this as the age of criminal responsibility, it was “not using these instruments and recommendations … [as] a gauge to assess the constitutionality of the age of responsibility for children”.Footnote 120
Another case involved a challenge to Indonesia’s marriage age (then 16 for women, 18 for men, under Indonesia’s 1974 Marriage Law). The Court observed that Indonesia had ratified CEDAW, Article 16(1) of which requires parties to eradicate discrimination against women in all areas of marriage and family relations. To this end, CEDAW recommended that the marriage age be the same for men and women. However, instead of relying on CEDAW, the Court focused on the difference between the 1974 Marriage Law (which, as mentioned, stipulated different ages for men and women) and Indonesia’s Child Protection Law, which defined a child as any person under 18 years old. The Court appeared to prefer the minimum marriage age to be 18 for both men and women, pointing out that “The lack of synchronisation will cause the violation of the rights of women and children that are clearly guaranteed by the Constitution.”Footnote 121
E. Misconstruction
In some important cases, the Court appears to have misunderstood or perhaps misconstrued the international law it used to interpret the Constitution, leading to outcomes that might perplex some international lawyers. An example of this comes from another case involving the interpretation of Article 28I(1) on rights that appear to be non-derogable, but that the Court has permitted to be limited. This case was brought by five applicants sentenced to death for drug offences.Footnote 122 They argued that the provisions of Indonesia’s Narcotics Law,Footnote 123 under which they had been convicted, violated the right to life provided in Articles 28A and 28I(1) of the Constitution, and breached Indonesia’s ICCPR obligations.
A majority of the Court rejected the challenge, making various arguments based on international law. The majority pointed to Article 46 of the Vienna Convention on the Law of Treaties which, the Court held, prohibits states from failing to comply with a treaty because the treaty breaches national law, unless the breach “concerned a rule of … internal law of fundamental importance”.Footnote 124 The Court opined that Indonesia could, therefore, contravene the ICCPR by imposing the death penalty for drug offences if this was of “fundamental importance” to Indonesia.Footnote 125
In any event, the Court reasoned that Indonesia had not breached the ICCPR, which allows the death penalty for the “most serious crimes” (Article 6(2)).Footnote 126 The Court decided that these crimes included drug offences, particularly those described in the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which Indonesia had ratified by enacting the 1997 Narcotics Law. According to the Court, both “particularly serious” crimes referred to in the Narcotics Convention and “most serious crimes” under the ICCPR affected the “economic, cultural and political foundations of society” and carried “danger[s] of incalculable gravity”. Imposing the death penalty for such crimes was, therefore, not only permissible under the ICCPR – in the Court’s view, it was in fact implicitly sanctioned by the Narcotics Convention, which encouraged member states to take strong action against drug traffickers.
The Court’s interpretation of “most serious crimes” to include drug offences appears to contradict the view of the UN Human Rights Committee (“Committee”): that the death penalty is “a quite exceptional measure” and that “most serious crimes” encompass only the most exceptional circumstances.Footnote 127 While intentional killing, infliction of grievous bodily harm or acts that create grave danger that may result in death or irreparable harm might fall within this category, the Committee seems to prefer the view that drug-related offences will generally not.Footnote 128
The Court also made a misleading reference to international law in the Abdurrahman Wahid case, discussed above in the context of discrimination. After referring to the ICCPR, the Court identified the 1975 Declaration on the Rights of Disabled Persons as the international instrument most relevant to the case at hand. Article 4 of the Declaration, which the Court sets out, states:
Disabled persons have the same civil and political rights as other human beings; paragraph 7 of the Declaration on the Rights of Mentally Retarded Persons applies to any possible limitation or suppression of those rights for mentally disabled persons.
Article 7 of the 1971 Declaration on the Rights of Mentally Retarded Persons states:
Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguard against every form of abuse (emphasis in original Court citation).
The Court’s reference to these Declarations was problematic. Quite apart from the fact that they are non-binding resolutions of the UN General Assembly, the Court did not explain why it used Article 7 of the latter Declaration, which applies to “mentally retarded persons”, to interpret the much broader phrase “spiritual and physical capability” used in Article 6(1) of the impugned law. In any event, Abdurrahman Wahid suffered from well-known physical, not mental, health problems.
V. Concluding remarks
Our reading of the cases in which the Constitutional Court mentioned international law in its judgments reveals a typology involving four categories of use: bolstering or interpreting domestic law; and misconstruing or rejecting international law. Of these four categories, two (bolstering and rejecting) appear to have no effect on the Court’s decisions, and two (interpreting and misconstruing) appear capable of bearing on the Court’s decision-making.
Most commonly, the Court uses international law to bolster Indonesian domestic law (whether the Constitution or a national statute), when the international and domestic principles are the same or similar. It may well be that this simply indicates that Indonesia’s Constitutional Court judges consider the fundamental rights they interpret and apply as universal.Footnote 129 As mentioned, the Court has no reason to do this, given that international law has no independent legal force in Indonesia, and the Court’s main functions in constitutional review cases are interpreting and applying the Constitution to national statutes. Less commonly, but also with limited potential to alter decision-making, are cases where the Court openly rejects international law in favour of domestic legal principles. In these cases, there seems no utility in the Court mentioning international law, to then expressly reject it. We suspect that one reason for this may be that parties continue to base submissions on international law and that the Court may feel the need to respond to those submissions.
The other two categories of use, while very rarely encountered in the cases, appear more like to have affected Constitutional Court decisions. These are, first, use of international law to interpret a constitutional obligation or a statute and, second, deliberate misapplication or misconstruction of international law, apparently to reach a decision that the Court thinks meets domestic expectations but defies Indonesia’s international obligations. These two categories of use have emerged most commonly in split decisions, often in dissenting judgments. This suggests to us that some judges are uncomfortable about using international law either as an interpretative tool or to reach conclusions that might be difficult to justify.
The cases we have considered to develop this typology lead us to a different conclusion to Palguna and Wardana’s. As mentioned, they argued that, based on selected case studies, the Court tends to treat international law as part of domestic law unless it contradicts the Constitution (pragmatic monism).Footnote 130 Our data suggest that the Court is inconsistent in its approach to international law, but that, if anything, it has probably adopted something resembling pragmatic dualism. In other words, it rarely gives independent authority to international law (as one might expect in a monist system) and usually cites it alongside an equivalent domestic principle (usually after it has cited that domestic principle). Nevertheless, the Court is not always consistent and occasionally, but clearly, relies on international law to help it interpret Indonesian constitutional and statutory provisions (sometimes resulting in questionable outcomes). For pragmatic reasons, then, it sometimes diverges from its general approach of dualism.
Acknowledgments
The authors would like to thank Professor Bui Ngoc Son and Maartje de Visser for involving us in this project and for their very useful feedback on our presentations and drafts of this paper.
Funding statement
None.
Competing interests
None.
Simon BUTT is Professor of Indonesian Law, University of Sydney Law School.
BISARIYADI is a researcher at the Constitutional Court of the Republic of Indonesia.
Fritz SIREGAR is Lecturer, Pancasila University.
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