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rnesto Simanungkalit wrote an interesting article titled Judicial review of ASEAN Charter?

His article is written in the backdrop of a petition applied to the Constitutional Court by the Alliance of Global Justice. The Constitutional Court was asked to nullify Law No. 38/2008 as the instrument of ratification of the ASEAN Charter.

While agreeing with Simanungkalit that the instrument of ratification is a form of legislation for one time action by the government (beschikking) and not a regulation (regelling), the question is how may people exercise their right to judicial review if a certain international agreement contradicts the Constitution?

The discussion by Simanungkalit only touches on ways to negate judicial review procedurally, but not substantively.

Substantively international agreement has the potential to contradict the Constitution. This is because the substance of international agreement can be of a law making treaty, as opposed to treaty contract.

A law making treaty is a treaty that has the consequence of introducing new norms or amending the existing norms of a certain country. The International Covenant of Civil and Political Rights is an example of a law making treaty.

On the other hand a border agreement between States can be categorized as a treaty contract.

Under Law No. 10/2004 on the Formulation of Laws and Regulations it is provided that the Constitution is the basic written law and the ultimate source of all laws and regulations in Indonesia.

This means that any provisions of international agreement that Indonesia accedes to must be in accordance with the Constitution. If not and the government transforms those provisions to domestic legislations, what guarantee will there be that the domestic legislations are not nullified by the Constitutional Court or Supreme Court?

If the Constitutional or Supreme Court nullifies the legislation, this will create a situation in which Indonesia is acceding to international agreement, but not performing its obligation. Moreover, can Indonesia withdraw from the international agreement due the decision of an internal court?

The government is facing dilemma arising from the interplay between international law and national law.

In Indonesia, one thing is for sure: When the government accedes to an international agreement, in particular a law making treaty, the government never ascertained the consistency between provisions of international agreement with the Constitution.

This of course negates the fact that the Constitution is the highest legislation in the country. This practice may lead to a situation where an international agreement is de facto the highest legislation.

Furthermore, in the absence of a process to ascertain the consistency with the Constitution, it negates the fact that an international agreement is frequently used as a political instrument by one State against another. In turn, the sovereignty to legislate by a country may be encroached by international agreements.

This will have negative repercussions for the government. The public will question who the government is working for: Another government or its constituency?

To take an example, when Indonesia amended and introduced many of its intellectual property rights laws, was such action due to the obligation imposed by the World Trade Organization agreement, or a response to the Indonesian societal need?

Learning from this experience, the government must take at least three important steps.

First, in the process of acceding to certain international agreements there should be discussion in academic papers on the consistency of the provisions of the international agreement and the Constitution.

Second, when negotiating drafts of international agreements, the government must make sure that the negotiated text does not contravene in any way with Indonesia’s Constitution.

Third, extra care must be taken by the government when acceding to international agreements. The government may opt to adopt certain international agreement provisions rather than accede to the international agreement.

By doing this, the government has the freedom to adopt a provision that is in accordance with the Constitution and make sure there are no provisions of international agreements that the government is unable to perform due to contradictions with the Constitution.

The writer is a professor of international law at the University of Indonesia.