House Commission III member Habiburokhman and Government representative Bambang Eko testifying virtually at the material judicial review hearing of Law No. 23 of 2019 on the National Resource Management for State Defense, Wednesday (9/22/2021). Photo by Humas MK/Panji.
Wednesday, September 22, 2021 | 20:00 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of the Law No. 23 of 2019 on the National Resource Management for State Defense (PSDN Law) on Wednesday morning, September 22, 2021. The hearing for case No. 27/PUU-XIX/2021 had been scheduled to hear the House of Representatives (DPR) and the president.
At the hearing chaired by Chief Justice Anwar Usman, House Commission III member Habiburokhman said on behalf of the House that the Petitioners have argued that Article 4 paragraph (2) of the a quo law, which defines the types of threat as referred to in Article 4 paragraph (1) of the a quo law, is in conflict with Article 7 of Law No. 3 of 2002 on State Defense, which does not identify hybrid threats.
The House holds that the State Defense Law not only limits threats as military and nonmilitary ones as argued by the Petitioners, which is reflected by Article 4, but also defines a broader scope of threats than what the Petitioners have argued. In fact, it also mentions multidimensional treats that can stem from ideological, political, economic, social, cultural, and security issues related to international crimes, including illegal immigration, narcotics, and so on.
Therefore, he added, the House maintains that the Petitioners’ argument that the State Defense Law only defines military and nonmilitary threats is false. “The falseness is because the Petitioners did not fully understand the substance of the State Defense Law as they only compare the threats included in the a quo Law without careful consideration,” he said virtually.
Habiburokhman further said that Article 7 paragraphs (2) and (3) of the State Defense Law cannot necessarily be interpreted as only limiting threats to military and nonmilitary ones because it does not explicitly do so, but instead regulates the state defense system to deal with military and nonmilitary threats.
He also explained the provision on hybrid threats, which he believes does not lead to legal uncertainty, but completes the scope of threats referred to in the State Defense Law, which has not defined threats that are a combination of military and nonmilitary ones.
He added that the effort to build state defense is impossible to do without the support of natural resources, artificial resources, as well as national facilities and infrastructure. “How is it possible to maintain or protect Indonesia’s vast territorial waters without using fuel or natural resources, ships, airplanes, communication equipment, maritime navigation devices or infrastructure? If the use of natural resources, artificial resources, and national infrastructure as supporting components is not regulated in the a quo law, it can actually weaken Indonesia’s national defense,” he explained.
He also said that Article 30 paragraph (5) of the 1945 Constitution stipulates that other matters related to national defense and security and security are regulated in a law, which were then realized in the State Defense Law and the a quo law. Articles 17 and 28 of the a quo law are in line with Article 1 of the State Defense Law.
The management of national resources by sole reliance on human resources will result in a setback because thanks to technological advances national defense is not only fulfilled by human resources, but also other resources such as natural resources, artificial resources, and national facilities and infrastructure. Thus, the Petitioners’ petition will actually weaken the national defense system and is not in line with the ideals of the Indonesian nation to protect all Indonesian people and the entire land of Indonesia as contained in the fourth paragraph of the Preamble to the 1945 Constitution.
At the same hearing, Bambang Eko said on behalf of the Government that the national goal is to protect all Indonesian people and the entire land of Indonesia from all threats. The 1945 Constitution doesn’t specifically define the threats. Their definition in Article 4 of the a quo law is an open legal policy—the legislature’s authority to regulate certain provisions in articles of a law—that does not conflict with the Petitioners’s request.
Article 7 paragraph (2) letter c of the a quo law does not lead to legal uncertainty, but in fact completes the scope of threats referred to in Law No. 3 of 2002 on the State Defense, which has not defined threats that are a combination of military and nonmilitary ones, or hybrid threats.
The Government maintains that the conditions when the State Defense Law had been passed were different from those when the a quo law was passed in 2019. As such, Article 4 paragraphs (2) and (3) and Article 29 of the a quo law have in fact created legal certainty, so not conflict with Article 1 paragraph (3), Article 28D paragraph (1), and Article 30 paragraph (2) of the 1945 Constitution.
The Government holds that Article 17, Article 28, Article 66 paragraph (2), Article 79, Article 81, and Article 82 of the a quo law on the use of natural resources, artificial resources, as well as national facilities and infrastructure as supporting components for mobilization do not conflict with Article 30 paragraph (2), Article 28G paragraph (1), and Article 28H paragraph (4) of the 1945 Constitution.
Bambang also relayed that the general provisions of the a quo law are relatively particularistic, in which human rights issues, in addition to being universal issues, are national issues. Thus, international provisions must be harmonized, balanced, and instilled in the culture of the nation.
The Government believes, the Petitioners only conveyed their argument based on Article 18 paragraphs (1) and (2) of the ICCPR on freedom, belief, and religion whereas Article 18 paragraph (3) of the ICCPR stipulates that the freedom to manifest one’s religion or belief can only be limited by provisions based on law and if necessary, in order to protect public security, order, health or morality, or other national rights and freedoms. This means that the conscientious objection is not absolute, but can be limited by legal provisions, both national and international, taking into account the principles of human rights and democracy.
The a quo law is a requirement for limiting human rights issues, especially regarding conscientious objection to protect security. Thus, the Government is of the opinion that Article 18, Article 66 paragraph (1), Article 77, Article 78, and Article 79 of the a quo law do not conflict with Article 30 paragraph (2) and Article 28E paragraph (2) of the 1945 Constitution as well as the principle of conscientious objection.
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 : Andhini S.F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/23/2021 11:52 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.