The rules and practices surrounding the incorporation of international law into the Indonesian legal system have long been mired in a state of convenient confusion. Although Indonesia complies with international agreements on a number of issues, the path by which these obligations could ever acquire the force of law in the Indonesian judicial space has been carefully left unclear. Indonesia`s role in international and regional affairs has increased considerably since the fall of Suharto in 1998. For example, it has signed many international treaties. However, Indonesian law is silent on the place of international law, whether treaty or customary, in the Indonesian legal system. This has led to considerable unresolved legal debate over whether Indonesia follows monism or dualism. This article argues that although Indonesia appears dualistic in practice, there is evidence of monism, particularly in the decisions of Indonesian constitutional courts and supreme courts. Quite apart from that, uncertainty had allowed the Government of Indonesia, on the one hand, to make the international community believe that ratified treaties were automatically applicable, but on the other hand, to deny citizens the rights that those international treaties were supposed to confer and to claim that treaties had no national application until they were incorporated into an Indonesian legal instrument. The second school of dualism criticizes automatic incorporation because of the way it undermines the role of the legislator. Instead of preserving legislative power as the domain of elected representatives, monism allows the executive to radically change national laws simply by unilaterally signing a convention.
To resist this erosion of legislative power, dualism requires a “hard transformation” approach in which the principles of international law can only become part of national law if they are adopted as national law, like any other law. If Indonesia can indeed be considered a monist system, the idea that legislative power belongs solely to the elected representatives of the legislature must be seen as a fiction. If it is incumbent upon the President or Secretary of State to enter into international agreements unilaterally, and judges can be relied upon to use them as direct sources of law in the absence of legislative approval, then the executive branch has the power to radically change laws. While Indonesia`s system is not exclusively monistic, the willingness of some judges to automatically implement certain agreements – and the absence of clear restrictions on the scope of their ability to do so – sets a dangerous precedent for abuse of executive power. The problem with Indonesia is that it lies somewhere between monism and dualism. Moreover, the process of absorption of international law has remained unclear since independence in 1945. In a single-tier system, signing a particular convention means that a country is now legally bound to respect its principles. In a two-tier system, it is understood that the signature and ratification of an international agreement is meaningless until Parliament is able to implement the accompanying national legislation formally adhering to the content of the Convention.
The trend in post-Suharto Indonesian jurisprudence suggests that courts are more or less practicing a dualistic approach to the incorporation of international law; However, the courts seem to have been careful not to go down a path that would decisively settle the monism/dualism debate. While each State has the right to determine the process by which it receives international law, it should be up to Indonesia to clarify the process. The current state of affairs leaves the international community in uncertainty as to whether an Indonesian signature has value, creates uncertainty for those facing Indonesian courts as to what exactly constitutes the law of the land, and arguably allows Indonesia to delay meaningful reform.