Constitutional Review of an International Custom Clause: MK 263/PUU-XXIV/2026

On 12 August 2026 the Constitutional Court of Indonesia (Mahkamah Konstitusi) disposed of Decision 263/PUU-XXIV/2026, a petition by Donaldy Christian Langgar seeking material review of Law No. 37 of 1999 on Foreign Relations against the 1945 Constitution. The petition targeted Article 18 paragraph (2) of that Law, which places statutory provisions and international custom on the same footing when the treatment of Indonesian nationals abroad is at issue. The petitioner argued that the pairing of those two sources produced ambiguity that harmed his position as a person seeking to prove a cross-border employment agreement. The Court declared the petition inadmissible without ruling on the constitutionality of the provision.

Legal Reasoning

The reasoning recorded in the decision document is largely the case the petitioner put to the Court, organised along the standard headings for legal standing and grounds. The constitutional benchmarks invoked were Article 28D paragraph (1) of the 1945 Constitution, on recognition, guarantee, protection and legal certainty before the law, and Article 28J paragraph (1), on the duty to respect the human rights of others. The petitioner also relied on Article 4 paragraph (2) of Law No. 48 of 2009 on Judicial Power, which directs courts to assist justice seekers and to overcome obstacles to simple, swift and low-cost proceedings.

The core objection concerned the phrase equating statutory provisions with international custom in Article 18 paragraph (2). The petitioner's position was that a rule of custom becomes binding domestically only once it has been ratified, whereas a statutory provision binds directly, and that treating the two as equivalent leaves law enforcers and private parties without a settled test of which source governs a given dispute. He contrasted this with the treatment of electronic evidence, pointing to Constitutional Court Decision 20/PUU-XIV/2016 and to Article 5 of Law No. 11 of 2008 as amended by Law No. 1 of 2024, where the legal status of an electronic document is stated in terms he described as complete rather than supplementary.

The factual setting was cross-border labour. The petitioner described agreements concluded by workers travelling independently before the enactment of the 2017 migrant worker law, the role of the passport and the electronic visa introduced into immigration practice from 2011 and used in its present form from 2020, and the difficulty of proving an unwritten agreement made in another jurisdiction. He noted that Indonesia and Bahrain have not concluded a specific understanding on worker protection since 2017, and that closed arrangements continue in practice, with the passport and the written agreement retained by the party providing the placement. On that record he asserted a constitutional injury: an ambiguous provision, he argued, weakens the equal protection guarantee and leaves the party with the weaker bargaining position unable to establish rights in court. Questions about the proof and enforcement of employment entitlements have reached the Court in other forms, including the review of mandatory termination compensation.

The Ruling

The operative part reads: Menyatakan permohonan Pemohon tidak dapat diterima — the petitioner's application is declared inadmissible. The Court did not proceed to assess whether Article 18 paragraph (2) of Law 37/1999 conflicts with Article 28D paragraph (1) or Article 28J paragraph (1) of the 1945 Constitution. An inadmissibility ruling of this kind disposes of the petition as filed rather than the norm it targets, and the same threshold treatment appears in other decisions delivered in this period, including the review of the two-creditor requirement in bankruptcy and the petition on filing requirements in criminal procedure.

Two consequences follow from the form of the disposal. First, Article 18 paragraph (2) of Law No. 37 of 1999 stands unchanged, and the relationship it establishes between statutory provisions and international custom continues to apply as written. Second, because the Court gave no view on the merits, the constitutional argument itself is not foreclosed; the question of how a court should rank a ratified rule of custom against a domestic statutory provision in a dispute over a cross-border employment agreement remains open for a petition that satisfies the Court's admissibility conditions. The decision was pronounced in open plenary session on 12 August 2026 at 14.28 WIB. No dissenting opinion was recorded in the decision document.

Read the full decision in the official record.

Methodology: This memo summarises the official decision text and is not legal advice; report corrections to contact@crpg.info.

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