Understanding 2 Concepts of Public Order in Private International Law and Their Relation to Vested Rights

You will find an explanation of how public order becomes the basis for judges and judicial institutions to override foreign law in a Private International Law case, taking into account social, cultural, and societal developments. In addition, this article also explains the relationship between the concept of public order and the concept of Vested Rights (acquired legal rights and obligations) and how this relates to the recognition of foreign law in the context of lex fori (the law applicable in a particular jurisdiction). In this article, you will understand how this concept can affect same-sex marriage and the recognition of foreign law in Indonesia. By: Dedon Dianta 

I. Public Order in Private International Law

Public order (public order) is a concept in Private Law International which is a reason or basis for a judge or judicial institution to be able to override foreign legal systems, legal rights and obligations, and foreign legal rules. The foundation of public order in the context of Private Law International, its starting point stems from the idea that judicial institutions are one of the state structures that have sovereignty. Therefore, judicial institutions have the right to choose which law will apply to all cases resolved in the judicial institution. This becomes a problem if the case being resolved involves foreign elements, or there are obligations and/or rights obtained through foreign legal provisions so that foreign jurisdiction is involved. In this case, it certainly raises questions about the extent to which judicial institutions have an obligation to involve foreign law in its jurisdiction? Stated in Article 23 of Algemene Bepalingen (AB), it is written that "door gene handelingen of overeenkomsten kan aan de wetten, die op de publieke orde of de goedezeden betrekking hebben, hare kracht ontonomen worde" All rules in Private International Law basically only regulate in broad terms that are too general in nature. The concept of public order in Private International Law is an unwritten value that is developing in society. Some experts argue that the concept of public order is a concept that depends on the development of society in the context of changing times and circumstances, so that the concept of public order cannot be agreed upon or formulated. In this context, the acceptance of the concept of public order in a country depends on the time and circumstances of that country. Based on this theory, if there is a legal system of a country that conflicts with foreign law, then foreign law can be ignored. The judiciary, in considering the applicability of a foreign law that should be the lex causae in its jurisdiction, has things that cause foreign law to be ignored, one of which is the concept of public order. The socio-cultural conditions in society, of course, are aspects that greatly influence the concept of public order. Changes and developments in interaction patterns, values believed in society, advances in science and technology are factors that influence the concept of public order in a country. The world's problems that have recently been highlighted concern the legalization and The rejection in several countries regarding same-sex marriage. The connection to human rights is the reason many countries recognize the legality of same-sex marriage, thus the state has no right to prohibit it. Likewise, with the acceptance of society in their country. If we associate it with the concept of public order, it can be said that countries that reject same-sex marriage do so because of the rejection from the majority of society in that country. The concept of public order contains peace and comfort in society that cannot be touched, growing and developing in the midst of society in a country that is also influenced by economic, social, cultural, and religious values. As an example, Indonesia can reject the legal recognition of same-sex marriage. The reason underlying this is also because it is contrary to the concept of public order, even if the marriage receives legal recognition in other countries. The concept of public order in Private International Law also has a positive impact in supporting the interests of the lex fori, but it has a negative impact if used excessively. This becomes an obstacle in international relations, slows down the lex fori, or even causes injustice. The concept of public order in Private International Law has 2 functions, including:

1) Positive Function of the Public Order Concept in Private International Law

Ensuring the applicability of certain arrangements of the lex fori (not overridden) as a result of the enactment of foreign law in a country through the Private International Law approach or Private International Law rules. Regardless of what legal issues should apply or whatever the content of the relevant lex fori rules/principles

2) Negative Function of the Public Order Concept in Private International Law

Avoiding the applicability of foreign legal rules, if such applicability causes a violation of the basic concept of the lex fori From the above discussion, we can see that the concept of public order in Private International Law forms the basis for judges/judicial institutions to override foreign legal principles that should be the lex causae in a Private International Law case. This is because these legal principles conflict with the concept of public order that exists in the community within the lex fori territory.

II. Relationship of the Public Order concept with Vested Rights

Vested Rights are the legal rights and obligations of a person acquired from a legal relationship that applies foreign law. The problem with vested rights is whether these rights and obligations should also be recognized by the lex fori? Basically, the rights inherent in a person must be respected and recognized by others as long as they do not cause conflicting problems with public order within the territory of the *lex fori*. An example of the issue is that of a foreigner who marries an Indonesian citizen (WNI), with the marriage taking place abroad. A foreign marriage is considered valid in Indonesia if it does not conflict with the concept of public order, and both parties must register their marriage with the marriage registry office. Thus, all rights and obligations of the couple who marry under foreign law can obtain legal recognition in Indonesia. Another example of a problem is when a marriage under foreign law involves an element of religious difference. This is often done by couples who wish to marry but cannot do so in Indonesia. As stated in Article 2 (1) of Law 1/1974, which is reinforced by SEMA 2/2023, marriage can only be performed according to the laws of each person's religion and belief, and cannot be performed if there is a difference in religion. In practice, any interfaith marriage under foreign law can be recognized and registered in Indonesia. So, what about the rights and obligations of the marriage? The state should set aside a person's legal rights and obligations if they conflict with legislation. Furthermore, same-sex marriage has no chance of gaining legal recognition in Indonesia. The recognition of a marriage by a country means that there is legal recognition of the rights and obligations of a person who marries under foreign law.