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University of Indonesia law professor Hikmahanto Juwana presented by the Government to deliver his statement in the judicial review hearing of Article 4 paragraph (2) letter d of Law No. 7 of 2014 on Trade, Monday (22/4) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—University of Indonesia law professor Hikmahanto Juwana asserted that the Government does not ignore their responsibilities for the national education although it is a service that can be traded. This was conveyed by Hikmahanto as the Government Expert in the follow-up hearing of Article 4 paragraph (2) letter d of Law Number 7 of 2014 on Trade held by the Constitutional Court (MK) on Monday (22/4/2019) in the Plenary Courtroom of the Constitutional Court.

The Petition No. 16/PUU-XVII/2019 was filed by Reza Aldo Agusta, a semester 4 student of Unika Atmajaya Yogyakarta. He challenged Article 4 paragraph (2) letter d of the Trade Law that reads, “In addition to the scope of the arrangements referred to in paragraph (1), also regulated tradable services including: d. Educational services.” He claimed constitutional harm due to the norm, which allows the increase of education costs. When educational services are seen as commodity, it leads to the increase of education costs, as the objective of education shifts from educating to profit-making. According to the Petitioner, the purpose of education in Indonesia was to educate the nation, as stated in the fourth paragraph of the Preamble of the 1945 Constitution.

Hikmahanto stressed that the need for regulation of the trade of educational services is because education is a service that within state obligations. On the other hand, education services have long been commercialized in the community.

In fact, commercial education services are also in demand by foreigners. Therefore, Hikmahanto explained, in various international agreements, education services are included in services that must be opened for entrepreneurs. Of course if education services are opened for foreign entrepreneurs, they must be regulated by the Government.

"Here, in my opinion, is the important meaning of Article 4 paragraph (2) letter d, where the availability of education services for foreign entrepreneurs does not mean that they can enter work in the education services in Indonesia at will. The Government certainly has the authority to regulate foreign entrepreneurs who want to work in education services in Indonesia," he said.

In that context, Hikmahanto interpreted the phrase "In addition to the scope of the arrangements" as a regulation. “The phrase ‘In addition to the scope of the arrangements’ as referred to in paragraph (1) also regulates tradable services, including education services. So, education services must be regulated, not opened freely," he said.

Next, Hikmahanto said, the education sector is one sector dealt with in various treaties. In this global era, the international community has agreed on free trade. As described, free trade is based on bilateral, regional, and multilateral agreements. In relation to this, the commodities traded are in the form of goods, services, and things related to intellectual property.

"In the services sector, many countries [agree on open markets in a country], one of them being education services. Educational services in this case are certainly not educational services that must be provided by the state, [but] are educational services that, in my opinion, are commercial in various levels," he explained.

The Effect of Revocation

Hikmahanto also mentioned the legal consequences if Article 4 paragraph (2) of the Trade Law was revoked. For example, if the Constitutional Court revoked ratification, in consequence, Indonesia would have to get out of a treaty that it was already following.

"In fact, to get out of a treaty is not easy, […] because some treaties do not regulate resignation [from the treaties], such as the UN Charter," he said.

Second, Hikmahanto added, if the Constitutional Court revoked an article from a statutory regulation that was the result of the transformation of a treaty, consequently Indonesia would be deemed not to have carried out its obligations by other countries following that treaty. If this happens, there will be potential disputes with other member countries.

"I would like to remind you that there are provisions in Article 27 of the 1969 Vienna Convention on the Law of Treaties. Even though Indonesia has not ratified it, it has been used as a customary law. It states that a party may not invoke provisions of internal law (a country may not use provisions in its domestic law as a basis to not implement or carry out its obligations in the treaty)," he said. (Arif Satriantoro/LA/Yuniar Widiastuti)

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