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Irfan R. Hutagalung as Petitioners’ Expert delivering his expertise in the judicial review hearing of the Treaty Law on Monday (30/4) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The House of Representatives (DPR) has an important role in the process of forming an international economic agreement. This was conveyed by Cenuk Widiyastrisna Sayekti as the Petitioners\' Expert responding to the provision of Article 9 paragraph (2) of Law No. 24/2000 on Treaties (Treaty Law) along the phrase "conducted by way of law or a presidential decree" in the follow-up hearing of the Treaty Law, Monday (30/4) afternoon. 

Cenuk exemplified several cases in a number of countries showing changes in the direction of foreign trade policy, after treaties are passed without involving the legislators at pre-negotiation until the signing of the agreement. 

"In general, the authority to engage in international relations including making and binding on international treaties is the right of the President or the executive. As long as the President is mandated by the country\'s Constitution to make international agreements with foreign parties, any agreement made is lawful under the Constitution," Cenuk said as an international economic law expert. 

Cenuk added that in the process of making a treaty until its implementation, no agreement applies in the same way to each country. This, she added, is common because treaties implementation is subject to the Constitution of each of the countries. 

"The fundamental thing that becomes the parameter and mutual agreement of the countries in the world is Article 26 of The Vienna Convention on The Law of Treaties, in which binding states are obliged to implement treaties in good faith," she said. 

Not in the Laws

Meanwhile, Irfan R. Hutagalung as another Petitioners’ Expert, said that House approval was not realized in the form of laws. "Some may say that laws in this context should be read as formal laws. This view is also not accurate because normatively and in practice, the process of making the laws is the same as the process of making a material law," explained Irfan as lecturer of International Law at the Faculty of Social and Political Sciences of UIN Jakarta. 

If read carefully, Irfan added, Article 9 paragraph (2) of the a quo law actually regulates the way of binding on treaties because the article regulates the "ratification of treaties." The word "ratification," according to Article 1 paragraph 2 of the a quo law means "a legal action to bind oneself to a treaty in the form of ratification, accession, acceptance, and approval.”

"So Article 9 paragraph (2) of the Treaty Law is about the statement of binding oneself to a treaty, not a request for government approval to the House. However, the binding statement is formulated incorrectly because it confuses internal processes that are subject to the national laws with external processes subject to international laws," Irfan explained about the case No. 13/PUU-XVI/2018. 

Indonesia for Global Justice (IGJ) along with 13 other Petitioners had reviewed Article 9 paragraph (2) and a number of other articles of the Treaty Law. According to the Petitioners, Article 9 paragraph (2) of the Treaty Law along the phrase "conducted by way of law or a presidential decree" is contradictory to Article 11 paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution. 

The Petitioners believe that Article 9 paragraph (2) of the Treaty Law has provided restrictions on the ratification of treaties to implement only with laws and or a presidential decree. Based on Article 11 paragraph (2) of the 1945 Constitution, what is required in a treaty is the approval of the House. The a quo law supersedes the phrase "approval of the House of Representatives of RI" with "ratification with the law." This means the ratification only involves the House in the final part of the drafting of treaty. 

In addition, according to the Petitioners, the word "ratification" reduced the word "approval" with the House of Representatives put the House at the end of the treaty arrangement by only playing the role of ratifying treaties that has been made by the Government of Indonesia. So, Article 9 paragraph (2) of the Treaty Law is contradictory to Article 11 paragraph (2) of the 1945 Constitution. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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