The Petitioners and their counsels at the petition revision hearing of the judicial review of Law No. 23 of 2019 on the National Resource Management for State Defense, Wednesday (4/8/2021). Photo by Humas MK/Bayu.
Wednesday, August 4, 2021 | 21:49 WIB
JAKARTA, Public Relations—Another judicial review hearing of the Law No. 23 of 2019 on the National Resource Management for State Defense (PSDN Law) was held in the Constitutional Court (MK) on Wednesday afternoon, August 4, 2021. The hearing for case No. 27/PUU-XIX/2021 had been scheduled for the petition revision.
At the second hearing, chaired by Constitutional Justice Daniel Yusmic P. Foekh, counsel Muhammad Busyrol Fuad conveyed the petition revisions. He explained in relation to legal standing that the Petitioners were those that could represent the legal entity according to its statute/bylaws.
He also mentioned a revision to the code of evidence in point 25. “It was in part D and has been moved to the part above part A. On page 12, there is now a point on Article 28, which we missed. It is one of the articles that we petition for review, which we missed previously in this table, and has now been added,” Busyrol explained virtually.
He also mentioned the elaboration of the state of emergency in points 71, 72, and 73, which is related to the petitum at the end of the petition. “Next, on the [request for a provisional decision], Your Honor. It was recommended that the Petitioners’ arguments be elaborated, so in this petition we request for [a provisional decision]. We have included various arguments,” he added.
The next revision on the petitum, Busyrol said, is based on the arguments that the Petitioners are trying to build. The Petitioners requested that Articles 4 paragraphs (2) and (3) and Article 29 be declared conditionally unconstitutional, as mentioned in petitum 3. They also requested that the Court declare Articles 4 paragraphs (2) and (3) and Article 28 of the PSDN Law in violation of Article 1 paragraph (3), Article 28D paragraph (1), and Article 30 paragraph (2) of the 1945 Constitution insofar as not be interpreted as ‘military threat in a state of war emergency.’
“Actually, petitum 4 is the same, but the context is not legally binding. The next petitum on the [ruling of] conditionally unconstitutional is for Article 17, Article 28, Article 66 paragraph (2), Article 79, Article 81, and Article 82 of the Law on the National Resource Management for State Defense [to be declare] in violation of Article 30 paragraph (2), Article 28G paragraph (1), and Article 28H paragraph (4) of the 1945 Constitution insofar as not be interpreted as ‘citizens and/or human resource reserve component,” Busyrol explained.
The Petitioners are four civil service organizations (CSOs) and three individual citizens. The CSOs are the human rights group Inisiatif Masyarakat Partisipatif untuk Transisi Berkeadilan (IMPARSIAL), the Commission for Missing Persons and Victims of Violence (Kontras), Kebajikan Publik Indonesia Foundation, the Indonesian Legal Aid and Human Rights Association (PBHI). They challenge Article 4 paragraphs (2) and (3), Article 17, Article 18, Article 20 paragraph (1) letter a, Article 28, Article 29, Article 46, Article 66 paragraphs (1) and (2), Article 75, Article 77, Article 78, Article 79, Article 81, and Article 82 of the PSDN Law.
At the preliminary hearing on Thursday morning, July 22, 2021, the Petitioners through counsel Muhammad Busyrol Fuad said Article 4 paragraphs (2) and (3) and Article 29 of the PSDN Law had created legal uncertainty, thus violating Article 1 paragraph (3), Article 28D paragraph (1), and Article 30 paragraph (2) of the 1945 Constitution. The legal uncertainty due to these articles mutatis mutandis has also led to the ambiguity of Article 29 of the PSDN Law, which regulates the mobilization of reserve component against military and hybrid threats.
“In fact, Article 7 paragraph (2) of Law No. 3 of 2002 on State Defense, has explicitly provided limitations of reserve component and supporting components that can only be mobilized against military threats,” Busyrol said.
The Petitioners also believe Article 17, Article 28, Article 66 paragraph (2), Article 79, Article 81, and Article 82 of the PSDN Law violate Article 28G paragraph (1), Article 28H paragraph (4), and Article 30 paragraph (2) of the 1945 Constitution.
Busyrol further said that the mention of natural resources, artificial resources, as well as national facilities and infrastructure as supporting components and reserve component in those articles had obscured the meaning of the main power and supporting power as referred to in Article 30 paragraph (2) of the 1945 Constitution, when the article’s norm is limiting in nature.
“The drafters of the Constitution have explicitly stated ‘the Indonesian National Armed Forces and the National Police of the Republic of Indonesia, as the main power, and the people, as the supporting power.’ [They] did not even once mention non-human elements (natural resources, artificial resources, as well as national facilities and infrastructure) as part of either the main or supporting powers of state defense,” he said virtually.
In the petition, the Petitioners also state that Article 18, Article 66 paragraph (1), Article 77, Article 78, and Article 79 of the PSDN Law in violation of Article 28E paragraph (2) and Article 30 paragraph (2) of the 1945 Constitution in relation conscientious objection. In addition, Article 18 and Article 66 paragraph (1) of the PSDN Law violate the principle of conscientious objection (the people’s right to refuse on the grounds of moral or religious principles), which are cardinal principles in the involvement of civilians in state defense, which is acknowledged by many countries and the international communities, as well as part of the international human rights law.
Article 20 paragraph (1) letter a of the PSDN Law is seen to be in violation of Article 28D paragraph (1) of the 1945 Constitution as it has led to legal uncertainty. The article, which stipulates that members of the National Police are part of the supporting components, also violates Article 30 paragraph (2), which stipulates that TNI (the military) and the National Police are the main power in state defense.
The Petitioners also claim that Article 46 of the PSDN Law is against Article 27 paragraph (1) and 28D paragraph (1) of the 1945 Constitution as it is against the principle of equality before law. It stipulates that military laws will be imposed on reserve component during active duty, which is a contrario to the statement that military laws will not be imposed on reserve component during inactive duty.
The inequal treatment of reserve component during active and inactive duty actually starts with the ambiguity of civilians’ status as reserve component, which has led to the ambiguity on the stage to which the people can be involved in state defense and on which power they belong to, main or supporting.
In addition, Article 75 of the PSDN Law, which determines that the funding for natural resource management for state defense may also come from the regional budget (APBD), is contrary to the separation of authority between the central and regional governments, thus in violation of Article 18 paragraph (5) of the 1945 Constitution and creating legal uncertainty, which is against Article 28D paragraph (1) of the 1945 Constitution.
Therefore, in order to prevent any violation to the Petitioners’ constitutional rights due to the enactment of the PSDN Law, the Petitioners requested that the Court issue an interlocutory decision that declares that the enactment of the law, especially on the recruitment of the reserve component, is delayed until the judicial review in the Court is completed.
Writer : Utami Argawati
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/5/2021 07:13 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.