Henry David Oliver as attorney of the Petitioners during a media interview after the material judicial review hearing of the Treaty Law on Tuesday (6/3) at the Constitutional Court. Photo by Humas MK/Ifa.

The role of the House of Representatives (DPR) in approving the drafting of an international treaty as stated in Law No. 24/2000 on Treaties is challenged at the Constitutional Court (MK). A number of NGOs and individuals are registered as Petitioners for case No. 13/PUU-XVI/2018. The Petitioners are Indonesia For Global Justice (IGJ), Indonesia Human Rights Committee for Social Justice, Farmers Union, Bina Desa Sadajiwa Foundation (Bina Desa), Aliansi Petani Indonesia (API),  Solidaritas Perempuan (SP), Perkumpulan Koalisi Rakyat untuk Keadilan Perikanan (KIARA), Farmer Initiatives for Ecological Livelihood and Democracy (FIELD), Serikat Petani Kelapa Sawit (SPKS), and four individual petitioners.

In their petition, the Petitioners considered Article 2, Article 9 paragraph (2), Article 10, and Article 11 paragraph (1) of the International Treaty Law impair their constitutional rights, which are guaranteed by the 1945 Constitution. The three norms regulate the role of the House of Representatives in making and approving treaties. The Petitioners claim that all of the provisions are against the 1945 Constitution, especially Article 11 paragraph (2) of the 1945 Constitution that reads, "The President in making other international agreements that will produce an extensive and fundamental impact on the lives of the people which is linked to the state financial burden, and/or that will requires an amendment to or the enactment of a law, shall obtain the approval of the DPR."

The House role to approve a treaty is deemed to be reduced by the enactment of Article 2 of the Treaty Law. This is because the a quo article has replaced the phrase "with the approval of the House of Representatives" with the phrase "upon the consultation with the House of Representatives in matters relating to public interest." Furthermore, in their petition the Petitioners, represented by Henry David Oliver Sitorus, stated that House approval in treaty making is very important because making a treaty means that the state has given part of its sovereignty, especially related to treaties that have broad and fundamental consequences for the people\'s lives. 

"Therefore, the approval by the House of Representatives as a manifestation of the sovereignty of the people becomes very important, especially related to treaties that have broad and fundamental consequences for the people\'s lives. The word "approval" reduces the word "consultation" with the House so that it puts the House at the end of the treaty drafting process by only acting in the ratification of the itreaty made by the Government of Indonesia. As such, Article 9 paragraph (2) of the a quo law is contradictory to Article 11 paragraph (2) of the 1945 Constitution," Oliver explained in the hearing held on Monday (5/3).

In addition, the Petitioners also consider Article 10 of the Treaty Law providing limitation on the types of treaties that must be ratified by a law. Thus, the material of a treaty other than the provision of Article 10 of the a quo law must be ratified by the provisions of legislation under the law (presidential decree). Oliver continued, related to Article 11 paragraph (1) of the Treaty Law along with the elucidation are an inseparable unity of Article 10 of the a quo law. Thus, the a quo article is also judged contrary to the Constitution.

Clarify the Legal Status

Responding to the petition, Constitutional Court Justice Wahiduddin Adams requested that the legal standing of the Petitioners be clarified as individual petitioners or NGOs. "Are the Petitioners who are these NGOs currently doing advocacy and assistance to the individual Petitioners in the context of the salt trade, for example. Or is there a broader context that the procedure of treaty ratification is [deemed] problematic?" he asked.

Meanwhile, Constitutional Justice Saldi Isra asked the Petitioners to clarify the reasons for filing the petition. He also asked the Petitioners to clarify the constitutional impairment they suffered. (ARS/LA/Yuniar Widiastuti)