REVIEW BUKU Judul : Treaties Under Indonesian Law: A Comparative 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 : Professor Simon Butt, B.A. LL.B., Ph.D. Indonesia s 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. 52
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 53
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. 54
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 55
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, 56
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 57
simultaneously working as the consul general of the Republic of Indonesia in Frankfurt. 58