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Pragmatic Monism: The Practice of the Indonesian Constitutional Court in Engaging with International Law
Published online by Cambridge University Press: 22 January 2024
Abstract
The relationship between international and domestic law in Indonesia is the subject of prolonged debate caused by the silence of the Indonesian Constitution on the choice between monism and dualism, which affects constitutional adjudication. This article discusses how the Constitutional Court engages with international law in its decisions and how the debate between monism and dualism is affected by it. It argues that the practice of the Court falls neither within the traditional scope of monism nor dualism but tends to be eclectic, which can be termed pragmatic monism. Here, the Court considers an international treaty part of domestic law upon ratification. However, its contents are only applicable if they are consistent with the Constitution, the highest law in the country. Nevertheless, such pragmatism is not without consequences where the consistency of the constitutional system as a whole is compromised for the instrumentality of its individual decisions on societal well-being.
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References
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39 The Court was the 78th constitutional court (or equivalent institution) in the world. The Austrian Constitutional Court (Der Osterreichische Verfassungsgerichtshof), founded in 1920, was considered by many experts as the first constitutional court. For further details, see, for example, SCHWARTZ, Herman, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago: University of Chicago Press, 2000) at 17Google Scholar.
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45 For instance, the late Adnan Buyung Nasution, a prominent lawyer and an outspoken rights campaigner, once said, in a televised interview commemorating the first anniversary of the Court, that the foundation of the Court had never been imagined would come into existence even in our wildest imagination. See “Sejarah Terbentuknya Mahkamah Konstitusi RI” (History of the Establishment of the Constitutional Court of the Republic of Indonesia), Mahkamah Konstitusi RI (13 Agustus 2014), online: https://www.youtube.com/watch?v=6x_Vlw29DVc.
46 According to Kelsen, a constitution's preamble contains a solemn introduction expressing political, moral, and religious ideas promulgated by the Constitution. From a preamble, we can also identify whether the state to be founded under the Constitution is designed to uphold the will of the people or simply the will of a ruler installed by the grace of God; see KELSEN, Hans, General Theory of Law and State (New York: Russell & Russell, 1961) at 260Google Scholar.
47 The Preamble states that the state built under the Constitution shall be based on the principle of popular sovereignty – or, in other words, a democratic state. Furthermore, Article 1 paragraph (2) of the Constitution stipulates that sovereignty shall be in the hands of the people and shall be exercised pursuant to the Constitution, while Article 1 paragraph (3) stipulates that Indonesia shall be based on the rule of law.
48 Saafroedin BAHAR, Risalah Sidang Badan Penyelidik Usaha-Usaha Persiapan Kemerdekaan Indonesia (BPUPKI), Panitia Persiapan Kemerdekaan Indonesia (PPKI), 29 Mei 1945–19 Agustus 1945 (Minutes of Meetings of Board of Inquiry for Independence Preparation Measures, Preparatory Committee for Indonesian Independence 29 May 1945–19 August 1945) (Jakarta: Sekretariat Negara Republik Indonesia, 1992).
49 Historically, a similar conclusion can also be drawn by meticulously tracing back the debate during the drafting of the Constitution by the nation's founding figures in 1945; see further, A.B. KUSUMA, Lahirnya Undang-Undang Dasar 1945 (The Birth of the 1945 Constitution) (Jakarta: Faculty of Law, University of Indonesia, 2004) at 35.
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52 Insofar as the dissolution of political parties is concerned, the government is the only party with standing to file a petition on the issue. A political party may be dissolved if its ideology, principles, goals, programmes, or activities contradict the Constitution. Hence, the petitioner (i.e., the government) must clearly describe why the petition is filed. The Court shall decide the case within 60 days. If the petition is granted, the government shall follow up the Court's decision by annulling the registration of the political party concerned.
53 The Court's jurisdiction to adjudicate cases concerning disputes on the results of general elections is stipulated in Article 22E paragraph (2) of the Constitution. The article states that general elections shall be organized to elect members of the House of Representatives, the Regional Representative Council, the President, the Vice President, and the Regional House of Representatives.
54 Pursuant to Article 7A of the Constitution, the President and/or Vice President may only be impeached during their tenure by the People's Consultative Assembly based on the recommendation of the House of Representatives if it considers that the President and/or Vice President committed acts of treason, corruption, bribery, other high crimes, committed deplorable acts, or no longer meet(s) the qualifications as a President and/or Vice President. However, according to Article 7B of the Constitution, before the People's Consultative Assembly makes such a motion of impeachment, the House of Representatives must first submit a petition to the Court asking for the Court's ruling. If the Court rules that the opinion of the House of Representatives proves justified. In that case, the House of Representatives will ask the People's Consultative Assembly to hold a plenary session to impeach the President and/or Vice President. The Court shall hand down its decision on the issue within 90 days from the day of the petition registration at the Court's register.
55 CC Law, Article 51, paragraph (1).
56 CC Law, Article 56 paragraphs (2), (3) in conjunction with Article 57 paragraph (1).
57 CC Law, Article 51 paragraph (2)(a).
58 CC Law, Article 56 paragraph (4) in conjunction with Article 57 paragraph (2).
59 CC Law, Article 61 paragraph (1).
60 CC Law, Article 61 paragraph (2).
61 CC Law, Article 63.
62 CC Law, Article 64, paragraphs (2) and (3).
63 Constitutional Court of the Republic of Indonesia, “Lembaga Pengawal Konstitusi” (The Guardian of the Constitution) (10 October 2022), online: MKRI https://www.mkri.id/index.php?page=web.Perkara2&menu=4.
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65 Gerrit BETLEM and Andre NOLLKAEMPER, “Giving Effect to Public International Law and European Community Law before Domestic Courts: A Comparative Analysis of the Practice of Consistent Interpretation” (2003) 14 European Journal of International Law 569.
66 Butt, supra note 9 at 15–16.
67 Betlem and Nollakaemper, supra note 66 at 571.
68 Case Concerning Discrimination against Women [2016] Decision of the Constitutional Court No. 88/PUU-XIV/2016.
69 Ibid.
70 Ibid., at 309–11.
71 Case Concerning Censorship in Law Number 8 of 1992 on Film [2007] Decision of the Constitutional Court No. 29/PUU-V/2007.
72 Ibid., at 223.
73 Ibid., at 232–7.
74 Case Concerning Censorship, supra note 72 at 223.
75 Case Concerning Terrorism Law [2003] Decision of the Constitutional Court No. 013/PUU-I/2003.
76 The International Covenant on Civil and Political Rights was finally ratified in 2005, and both terrorism-related conventions were also ratified by Indonesia in 2006, following the Second Bali Bombing in October 2005.
77 Case Concerning Terrorism Law, supra note 76 at 43–4.
78 Case Concerning Terrorism Law, supra note 76 at 44.
79 Case Concerning Terrorism Law, supra note 76 at 40.
80 Ibid., at 36.
81 Ibid., at 58.
82 Article 7 of Human Rights Law stipulates that: “(1) everyone has the right to use all national legal remedies and international forums for all violations of human rights guaranteed by Indonesian law and international human rights law that the Republic of Indonesia has accepted; (2) the provisions of international law that have been accepted by the Republic of Indonesia concerning human rights are primarily the responsibility of the government”.
83 See Agusman, Damos, Hukum Perjanjian Internasional: Kajian Teori dan Praktik Indonesia (Bandung: Refika Aditama)Google Scholar.
84 Butt, supra note 9 at 8.
85 Elucidation of Article 7 of Human Rights Law states that “this Article is intended to mean that those who wish to uphold their human rights and fundamental freedoms are obliged to exhaust all such remedies at the national level first (exhaustion of local remedies) before resorting to forums at either the regional or international level, except when resorting to either regional or international forums, unless there is there is no response from the national legal forum”.
86 See Cançado TRINDADE, “Exhaustion of Local Remedies in International Law and the Role of National Courts” (1978) 17 Archiv des Völkerrechts 333, at 350–5, where he discusses the X and Y v. Belgium (1963) and the X v. Federal Republic of Germany (1963) cases to demonstrate the use of the rule of exhaustion of local remedies in monist countries; see Kate EASTMAN, “Human Rights Remedies: A Guide” (1992) 17 Alternative Law Journal 169; Brenda GUNN, “Remedies for Violations of Indigenous Peoples’ Human Rights” (2019) 69 University of Toronto Law Journal 150. Both authors touch on the rule of exhaustion of local remedies in the context of human rights violations in dualist states, namely Australia and Canada, respectively.
87 Indeed, the reason behind this is hard to identify, but it can be assumed that it is perhaps due to the equal position of the Human Rights Law and the law being constitutionally examined in the hierarchy of laws; hence, the use of Article 7 as an instrument to examine the validity of an equal norm will be problematic.
88 Case Concerning the Ratification of ASEAN Charter [2011] Decision of the Constitutional Court No. 33/PUU-IX/2011.
89 Ibid., at 22.
90 Ibid., at 96.
91 Ibid., at 97.
92 Ibid., at 181.
93 Ibid., at 194–6.
94 Case concerning Law of International Agreements [2018] Decision of the Indonesian Constitutional Court's Decision No. 13/PUU-XVI/2018 at 146.
95 Ibid.
96 Ibid., at 148.
97 Ibid., at 256.
98 See Case Concerning the Customary Forest Estate [2012] Decision of the Constitutional Court No. 35/PUU-X/2012.
99 Niels PETERSEN, “The Reception of International Law by Constitutional Courts through the Prism of Legitimacy” (2009) Preprints of the Max Planck Institute for Research on Collective Goods, No. 2009/39 at 23–4.
100 Dworkin, supra note 31 at 167.
101 The only two justices who obtained master's degrees in international law were the late Justice A.S. Natabaya (from Indiana University School of Law, Bloomington, USA) and I Dewa Gede Palguna (from the Post Graduate Programme, Padjadjaran University Faculty of Law, Bandung, Indonesia).