2011 May 15
May 15, 2011

Judicial review of ASEAN Charter?

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On May 5, 2011, two days before the ASEAN Summit, the Alliance on Global Justice, which consists of representatives from civil society organizations and NGOs, reportedly filed for a judicial review with the Constitutional Court against Law No. 38/2008 on the Ratification of the Charter of the Association of Southeast Asian Nations (ASEAN Charter).

The plaintiff is of the view that the ASEAN Charter ratification contradicts the 1945 Constitution, particularly Article 33 paragraphs (1), (2) and (3). The alliance considers Article 1 paragraph (5) and Article 2 paragraph (2) of the ASEAN Charter a blatant breach of the Constitution that suggests that the country’s economy should not be trusted to market mechanisms.

The judicial review is undoubtedly an interesting issue that can be analyzed through many perspectives. However, my concern is neither about the substance of the ASEAN Charter that adopts a single market principle, nor about the timing of the filing of the motion.

In my opinion, the main question concerns what the Constitutional Court will review as it is clear that Law No. 38/2008 only consists of two articles. The first article stipulates the House of Representatives’ endorsement of the ASEAN Charter, while the other article pertains to enforcement of the law.

Article 11 of the Constitution says that (1) the President, with the House’s approval, has the power to declare war, conclude peace and make treaties with other countries. Paragraph (2) states that treaties that have wide and fundamental consequences for the livelihood of the Indonesian people, i.e. relating to state finances and/or the modification or creation of a law, must be approved by the House.

Based on the article we can conclude that the initiative and authority to make a treaty is solely a presidential prerogative in his/her capacity as the head of government and head of state.

Nevertheless, in order to balance such power, the House is awarded the role to approve the treaty-making process.

Several problems may arise from these vague rules. First, with regard to the timing of House’s approval, does it come before or after a treaty has been concluded by the government?

Second, with regard to the conclusion of a treaty, Article 11 does not firmly state that the House’s approval must take the form of a law.

In law schools, students are taught about the distinction between legal documents that have regeling and beschikking characters. In short, a regulation is deemed regeling because it contains normative provisions that govern the material/substance of a certain issue (e.g.: the Bankruptcy Law, the Oil and Gas Law).

Beschikking means a regulation is not normative but rather sets out certain rules that determine a specific matter.

Furthermore, such regulations will automatically be terminated after their implementation (einmalig) (e.g.: the State Budget Law that is passed every year).

Just for the record, a judicial review motion against the State Budget Law that has an einmalig character was once rejected by the Constitutional Court. Which category does Law No. 38/2008 belong to?

Indonesia is the ninth country that ratified the ASEAN Charter before the Charter came into force on Dec. 15, 2008. The ceremony was held at the ASEAN Secretariat and attended by all ASEAN foreign ministers and the ASEAN secretary-general to signify a historical moment with regard to the establishment of a “new” ASEAN that is rule-based, people oriented and fully committed to prosperity, peace and stability in the form of the ASEAN community.

Law No. 38/2008 ratified the ASEAN Charter and guided the 10 ASEAN member states to implement the principles and objectives of ASEAN as an international organization.

If the Court agrees to review the Charter, a possible implication that will arise is a contradiction between authority and competence, considering the fact that the ASEAN Charter is subject to the norms of international law rather than the Constitution of the Republic of Indonesia.

All these queries and confusion actually originates from the uncertainty of Indonesia’s legal system in determining the status of international agreements (treaties) within the national legal system. This issue is not new to practitioners and academics in the field of international law.

It is interesting to examine the opinion of Damos Dumoli Agusman, currently the Consul General of Indonesia in Frankfurt, in his book Law of Treaties: A Study in Theory and Practice of Indonesia.

He indicates that a law that ratifies a treaty based on Indonesia’s state law is not a material law, but only a form of House approval as required by Article 11 of the 1945 Constitution to enable the President to ratify a treaty. If it is the case, then what material should the Court review?

As a judicial institution, it is difficult to imagine how the Constitutional Court through its decision changes the content of an international treaty that binds Indonesia both at the international level and in a national legal system like the ASEAN Charter.

If the Court grants this judicial review motion, I can imagine the errors of law that may emerge. On one hand, according to international law (Vienna Convention 1969), Indonesia is not allowed to use the excuse of national law (a Constitutional Court decision) as a basis to disregard its obligation in the ASEAN Charter. On the other hand, Indonesia is also not allowed to violate its own Constitutional Law.

The choice is in the hands of Constitutional Court Chief Mahfud MD and the rest of the judges.

The writer is the head of the human rights affairs section at the Directorate General for ASEAN Cooperation at the Foreign Affairs Ministry. The opinions expressed are his own. –Ernesto Simanungkalit, The Jakarta Post, Jakarta