Hostname: page-component-848d4c4894-hfldf Total loading time: 0 Render date: 2024-05-28T19:20:42.664Z Has data issue: false hasContentIssue false

Pragmatic Monism: The Practice of the Indonesian Constitutional Court in Engaging with International Law

Published online by Cambridge University Press:  22 January 2024

I Dewa Gede PALGUNA*
Affiliation:
Faculty of Law, Udayana University, Bali, Indonesia, and Justice of the Indonesian Constitutional Court (2015–2020)
Agung WARDANA
Affiliation:
Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia
*
Corresponding author: I Dewa Gede PALGUNA; Email: dewa_palguna@unud.ac.id

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.

Type
Article
Copyright
Copyright © The Author(s), 2024. Published by Cambridge University Press on behalf of the Asian Society of International Law

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 BROWNLIE, Ian, Principles of Public International Law, 2nd ed. (Oxford: Clarendon Press, 1973) at 36Google Scholar; HILLIER, Timothy, Principles of Public International Law (New York: Cavendish Publishing, 1999) at 2–5Google Scholar; see also HENKIN, Louis et al., International Law: Cases and Materials (Eagan, Minnesota: West Publishing Company, 1987) at 1Google Scholar; See also Nicole ROUGHAN, “Mind the Gaps: Authority and Legality in International Law” (2016) 27 European Journal of International Law 329 at 334; SPAAK, Torben, “Kelsen on Monism and Dualism” in Marko Novakovic, ed., Basic Concepts of Public International Law: Monism & Dualism (Belgrade: University of Belgrade, 2013), 322Google Scholar; Jorge NUNEZ, “Cosmopolitanism and Universal Law” (9 September 2021), online: SSRN https://ssrn.com/abstract=3920273 at 2, 3, and 14.

2 Although, until recently, various subjects have been universally accepted as subjects of international law besides the states (i.e., international organizations, the International Committee of the Red Cross, belligerents, insurgents in a conflict, and even – to some limited extent – individuals), states remain the main actors in the exercise of international relations under international law. As an additional note, the fact that binding international law is primarily based on the consensus of its subjects (in this case, states) and its lack of a lawmaking body and law enforcement institutions are among other reasons why John Austin, a prominent 19th-century English legal theorist, persistently declined to consider international law as law because – based on his analytical jurisprudence approach and his thinking as a legal positivism theorist – it does not match the “nature” of law as a command. According to Austin, “international law” is nothing but a collection of “rules of positive morality”. For further details, see Austin, John, The Province of Jurisprudence Determined (Cambridge: Cambridge University Press, 2001) at 7Google Scholar.

3 Diane ZHANG, “The Use and Misuse of Foreign Materials by the Indonesian Constitutional Court: A Study of Constitutional Court Decisions 2003–2008”, Department of Law, University of Melbourne, Thesis, 2010 at 7.

4 The late Justice Antonin Scalia, for example, said that using foreign legal materials “can never be relevant to an interpretation of – to the meaning of – the U.S. Constitution”. See SCALIA, Antonin, “Keynote Address: Foreign Legal Authority in the Federal Courts” (2004) 98 Proceedings of the ASIL Annual Meeting 305CrossRefGoogle Scholar.

5 Melissa A. WATERS, “Justice Scalia on the Use of Foreign Law in Constitutional Interpretation: Unidirectional Monologue or Co-Constitutive Dialogue” (2004) 12 Tulsa Journal of Comparative and International Law 149.

6 Zhang, supra note 3 at 8.

7 Ibid.

8 See BRYANT, Tannetje and JESSUP, Brad, “Fragmented Pragmatism: The Conclusion and Adoption of International Treaties in Vietnam” in John GILLESPIE and Pip NICHOLSON, eds., Asian Socialism & Legal Change: The Dynamics of Vietnamese and Chinese Reform (Canberra: ANU Press, 2005), 288Google Scholar.

9 BUTT, Simon, “The Position of International Law within the Indonesian Legal System” (2014) 28 Emory International Law Review 1Google Scholar; see also KUSUMAATMADJA, Mochtar and AGOES, Etty R., Pengantar Hukum Internasional, 2nd ed. (Banding: Penerbit Alumni, 2021) at 94Google Scholar.

10 Butt, ibid.

11 AGUSMAN, Damos, “The Dynamic Development on Indonesia's Attitude Toward International Law” (2015) 13 Indonesian Journal of International Law 3CrossRefGoogle Scholar.

12 Mohammad Hatta, as cited in the Indonesian Constitutional Court's Decision No. 13/PUU-XVI/2018 at 147.

13 BIJL, Paul, “Human Rights and Anticolonial Nationalism in Shajrir's Indonesian Contemplations” (2017) 29 Law & Literature 247CrossRefGoogle Scholar.

14 The case concerned a landslide in Mandalawangi, West Java, in which the victims filed a class action against the Perhutani, a state-owned company that managed the production forest estate in the area, and the government on the basis that the defendants had failed to manage the forest sustainably which then led to the landslide causing losses for the victims. In this case, the plaintiffs used the precautionary principle, a principle in international environmental law, as the basis of their claims against the defendants. See WIBISANA, Andri, “The Development of the Precautionary Principle in International and Indonesian Environmental Law” (2011) 14 Asia Pacific Journal of Environmental Law 169Google Scholar.

15 Decision of the Supreme Court No. 1794K/Pdt/2004 concerning Perhutani and others v. Dedi and others at 84.

16 See Butt, supra note 9. In this article, he traces the doctrinal aspect of the monism/dualism discourse in Indonesia and the courts’ practice in this regard. He concludes that uncertainty remains the main feature of the Indonesian attitude toward international law. See also Kusumaatmadja and Agoes, supra note 9; Agusman, supra note 11; John LUMBANTOBING, “The 1958 New York Convention in Indonesia: History and Commentaries Beyond Monism-Dualism” (2019) 9 Indonesia Law Review 222.

17 SHAW, Malcolm, International Law, 8th ed. (Cambridge: Cambridge University Press, 2017) at 98CrossRefGoogle Scholar.

18 STARKE, Joseph G., “Monism and Dualism in the Theory of International Law” in Stanley PAULSON and Bonnie LITSCHEWSKI-PAULSON, eds., Normativity and Norms: Critical Perspectives on Kelsenian Themes (Oxford: Oxford University Press, 1999), 537 at 547Google Scholar.

19 Gerald FITZMURICE, “The General Principles of International Law Considered from the Standpoint of the Rule of Law” (1957) 92 Recueil de Cours 1; Jeffrey DUNOFF et al., International Law: Norms, Actors, Process (Boston: Aspen Publishing, 2020) at 210.

20 Shaw, supra note 17 at 105.

21 Bryant and Jessup, supra note 8 at 300.

22 BALKIN, Rosalie, “International Law and Domestic Law” in Sam BLAY, Ryszard PIOTROWICZ, and Martin TSAMENYI, eds., Public International Law: An Australian Perspective (Melbourne: Oxford University Press, 1997), 119Google Scholar.

23 Article 27 of the Convention says, “A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to Article 46.”

24 Armin VON BOGDANDY, “Pluralism, Direct Effect, and the Ultimate Say: On the Relationship between International and Domestic Constitutional Law” (2008) 3 International Journal of Constitutional Law 398.

25 Massimo LANDO, “Intimations of Unconstitutionality: The Supremacy of International Law and Judgement 238/2014 of the Italian Constitutional Court” (2015) 78 Modern Law Review 1036.

26 See Brian E. BUTLER, “Legal Pragmatism” (14 October 2022), online: Internet Encyclopaedia of Philosophy https://iep.utm.edu/leglprag/; Suman ACHARYA Formalism vs. Pragmatism in Legal Philosophy (26 March 2020) online: SSRN https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3423036#:~:text=Abstract,implementation%20of%20doctrine%20and%20principles at 8–9; Caroline Bermeo NEWCOMBE, “Textualism: Definition, and 20 Reasons Why Textualism is Preferable to Other Methods of Statutory Interpretation” (2022) 87 Missouri Law Review 142 at 189–90.

27 ASSHIDDIQIE, Jimly, Pokok-Pokok Hukum Tata Negara Indonesia Pasca Reformasi (The Basics of Constitutional Law in the Post-Reform Era of Indonesia) (Jakarta: Bhuana Ilmu Populer, 2007) at 604Google Scholar.

28 WHEARE, Kenneth, Modern Constitutions, 2nd ed. (Oxford: Oxford University Press, 1966) at 67Google Scholar.

29 A similar point is made by Jed Rubenfeld when he asks of the U.S. Constitution: “How can a two-hundred-year-old legal text, enacted by a series of majority votes under conditions very distant from our own, exert legitimate authority in the present? How can it possibly bind a majority today? A constitution of this sort is a scandal. It is an offense against reason, against democracy – against nature itself.” See Jed RUBENFELD, “Legitimacy and Interpretation” in Larry ALEXANDER, ed., Constitutionalism: Philosophical Foundations (Cambridge: Cambridge University Press, 1998), 194.

30 Richard POSNER, “Pragmatic Adjudication” (1996) 18 Cardozo Law Review 4.

31 DWORKIN, Ronald, Law's Empire (Cambridge: The Belknap Press of Harvard University Press, 1986) at 161Google Scholar.

32 See further, Anthony MASON, “The Interpretation of a Constitution in a Modern Liberal Democracy” in Charles SAMPFORD and Kim PRESTON, eds., Interpreting Constitutions: Theories, Principles, and Institutions (Alexandria, NSW: Federation Press, 1996) 13 at 14.

33 WHITTINGTON, Keith E., Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Kansas: University Press of Kansas, 1999) at 2–5Google Scholar.

34 Butler, supra note 26.

35 See Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 133Google Scholar.

36 Ibid.

37 Dworkin, Ronald, Freedom's Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996) at 12Google Scholar; For further elaboration on the interpretation of the Constitution, see Dewa Palguna, Pengaduan Konstitusional: Upaya Hukum Terhadap Pelanggaran Hak-Hak Konstitusional Warga Negara (Constitutional Complaint: Legal Remedy for Violation of Citizen's Constitutional Rights) (Jakarta: Sinar Grafika, 2013) at 280.

38 Brian TAMANAHA, “Pragmatism in U.S. Legal Theory: Its Application to Normative Jurisprudence, Sociolegal Studies, and the Fact-Value Distinction” (1996) 41 American Journal of Jurisprudence 321.

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.

40 CAPPELLETTI, Mauro, The Judicial Process in Comparative Perspective (New York: Oxford University Press, 1989) at 136Google Scholar.

41 GINSBURG, Tom, Judicial Review in New Democracies: Constitutional Courts in Asian Cases (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar.

42 John FEREJOHN and Pasquale PASQUINO, “Rule of Democracy and Rule of Law” in José María MARAVALL and Adam PRZEWORSKI, eds., Democracy and the Rule of Law (Cambridge: Cambridge University Press, 2003), 242.

43 HAUSMANINGER, Herbert and EWALD, John A., The Austrian Legal System (Vienna: Manz Verlag Wien, 1998)Google Scholar.

44 For further comparisons, see Trevor L. BROWN and Charles R. WISE, “Constitutional Courts and Legislative-Executive Relations: The Case of Ukraine” (2004) 119 Political Science Quarterly 143.

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.

50 KOOPMANS, Tim, Courts and Political Institutions: A Comparative View (Cambridge: Cambridge University Press, 2003)CrossRefGoogle Scholar.

51 As to reasons why establishing a special court (i.e., the Constitutional Court), whose primary function is to be the guardian of the Constitution, is more suitable in civil law countries instead of giving such a function to an already established court as practised in the US, see Hans Kelsen, “Judicial Review of Legislation: A Comparative Study of the Austrian and the American Constitution” (1942) 4 Journal of Politics 183.

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.

64 Zhang, supra note 3.

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).