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Judicial preview of international treaties
When the president of Indonesia or his official delegates agree upon and sign a treaty with another nation, then that agreement is settled, and binding to Indonesia externally – there is no undoing it. The Vienna Convention Law of Treaties has found, as a matter of international law, that treaties accepted by a nation cannot be retroactively canceled merely because they are later found to have been in violation of that nation's internal law.
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When the president of Indonesia or his official delegates agree upon and sign a treaty with another nation, then that agreement is settled, and binding to Indonesia externally – there is no undoing it. (Shutterstock/-)
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concept familiar to most people is that of judicial review of legislation. This process, found in the governments of many countries around the world besides Indonesia, is based on the principle that the nation's constitution is the ultimate law of the land to which all – even the government itself – must be subject. When any individual's rights under the constitution are threatened by the enacting or enforcing of a given law, they can call suit and have the nation's judiciary look over the legislation and determine in their reasoned opinion whether it is harmful to their constitutional rights. Laws that are found to be in violation of the constitution are then dismissed, while those found to be reasonable are upheld.
Indonesia follows this enlightened philosophy. New laws are drafted and passed by the parliament and the president, respectively, on the understanding that they will do nothing to offend the nation's constitutional principles. But when someone feels that they have failed and that their rights are being trampled, they ask the judiciary to perform its duties of judicial review, and rule on the legislation. The judiciary's decision on the matter is then final.
Good, so far. But this process, though generally wise and founded in justice, ignores the fact that a bad law can cause irreparable harm merely by being passed – harm that cannot be reversed by the simple act of repealing the law. A prime example of this is international treaties.
When the president of Indonesia or his official delegates agree upon and sign a treaty with another nation, then that agreement is settled, and binding to Indonesia externally – there is no undoing it. The Vienna Convention Law of Treaties has found, as a matter of international law, that treaties accepted by a nation cannot be retroactively canceled merely because they are later found to have been in violation of that nation's internal law. Although there are debates in determining the definition of the internal law, that might means that while the Indonesian judiciary is free to review the act that implements the treaties into national law, they are essentially powerless to act. If they find that a treaty contrary to Indonesian constitutional principles was agreed to, they cannot help the nation or its people. Indonesia externally remains bound to the bad treaty – its constitution be damned.
One solution to this problem is an evolution of judicial review: judicial preview. Under this system, the nation's courts would not have to wait until a law were called into question in order to rule upon it. Instead, part of their duties would be to review such laws before they were even passed, and render their judgment on constitutionality. Their hands would therefore not be tied; unconstitutional laws would be struck down not after they had already caused injury, but before they even became law, and this before they had a chance to do harm.
But there is a downside to this system. One of the most important elements of Indonesian government, as in many nations, is the separation of powers to prevent undue accumulation of authority. If the judiciary has final veto power over any law proposed by the legislature, then the courts could effectively usurp the legislators’ power. Those drafting and signing the laws power would be diminished, and the judicial reviewers (previewers) vastly strengthened. Potentially, the courts could rise to the level of legislative “dictators”, preemptively deciding what is law by their own fiat, with the supposed “lawmakers” powerless against their will. If the legislature found itself unable to obtain judicial approval of their proposals, they could pass nothing into law.
One possible solution to this problem would be a reduction of the power of judicial preview. In this version of the system, the court would not be empowered to strike down laws before they are enacted, but rather to render a recommendation of a proposed law's constitutionality. That is, legislators would still submit their draft to the judiciary, who would then review, but even the court's most strenuous objection would not automatically kill the law. Legislators would be free to take it under advisement and either heed the court's objection, or ignore it.
Even this idea carries some risks, however. We could see a situation in which the court's gentle recommendations against a law become angry warnings, demands that the legislature not act as suggested lest the law they pass be promptly struck down by the judiciary. Fearing this, legislators would then alter their proposed legislation, cowing to the court and effectively empowering it – the very problem we had hoped to avoid.
The problem of a judicial review's limited scope is a real one. Indonesia cannot tolerate being bound to international treaties that are in clear violation of its most basic constitutional protections. Yet the idea of enacting judicial preview, in which courts are essentially granted veto power over any proposed laws and become the de facto legislators themselves, is almost frightening in its potential implications for the nation's balance of power amongst its government. Limited judicial preview may be the answer, allowing courts to rule in a non-binding manner on a given law's adherence to the constitution, but carries its own dangers and again risks turning the court into a legislative tyrant.
Care must be taken in addressing this issue and devising a workable solution. Indonesia deserves no less.
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Anthony Winza Probowo is currently a Master of Laws (LL.M) student at Georgetown University, Washington, DC.
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