Constitutional law expert Aan Eko Widianto testifying virtually at the material judicial review hearing of Law No. 23 of 2019 on the National Resource Management for State Defense, Monday (10/25/2021). Photo by Humas MK/Hendy.
Monday, October 25, 2021 | 23:47 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another material judicial review hearing of the Law No. 23 of 2019 on the National Resource Management for State Defense (PSDN Law) on Monday, October 25, 2021 both onsite and virtually from the plenary courtroom. The hearing for case No. 27/PUU-XIX/2021 had been scheduled to hear the Petitioners’ expert.
At the hearing chaired by Chief Justice Anwar Usman, constitutional law expert Aan Eko Widianto said Article 30 paragraph (2) of the 1945 Constitution contains two norms. First, state defense and security is carried out through the whole people defense and security system. Second, state defense and security is carried out by one main power consisting of the National Armed Forces (TNI) and the Indonesian National Police (Polri). The nomenclature or terms used in the 1945 Constitution are the main power and the supporting power.
“So the main power is TNI/Polri and the supporting power is the people. The main and supporting powers are not mixed; both are separate with separate components,” Aan said.
Based on its components, TNI/Polri are the main power in state defense and security, while the people are the supporting power, following Article 30 paragraph (2) of the 1945 Constitution. The provision is regulated in Article 7 paragraphs (2) and (3) of Law No. 3 of 2002 on State Defense, which reads, “(2) The state defense system in the face of military threats places the Indonesian Armed Forces as the main component, supported by the reserve component and the supporting component; (3) The state defense system in the face of nonmilitary threats places government institutions outside of the defense field as the main component in accordance with the form and nature of the threats faced, with support by other elements of the nation’s power.”
“Thus, the role of TNI as the main component to deal with military threats is clear, while in a systematic interpretation of Article 30 paragraph (2) of the Constitution, Polri as a government institution outside the defense sector is not the main component to deal with nonmilitary threats,” Aan explained.
Aan believes the PSDN Law has negated Article 30 paragraph (2) of the Constitution, which stipulates that TNI and Polri are the main power in defense and security, by mixing the main and supporting powers. All provision on the reserve component (komcad) in the PSDN Law, he said, violates Article 30 paragraph (2) of the Constitution.
This reserve component—consisting of citizens, natural resources, artificial resources, national infrastructure and facilities as referred to in Article 28 paragraph (1) of the PSDN Law—has led to the uncertainty of the citizens’ position as one of the reserve component, as they are also the main and supporting power. Article 29 of the PSDN Law stipulates that citizens, who are neither TNI nor Polri (civilians), are prepared as a reserve component to be mobilized to reinforce the main component (komput) in facing military and hybrid threats.
This, Aan said, makes their status ambiguous. In addition, there are active and inactive reserve components in Article 43 of the PSDN Law.
“Citizens should remain a supporting power that is ready to be mobilized at any time. They should not be positioned as a reserve component whose position is not clear, whether as a main power or not. In such a condition, it will further result in the loss of guarantee of protection and fair legal certainty as referred to in Article 28D paragraph (1) of the 1945 Constitution,” he explained.
Aan also said that Article 20 paragraph (1) of the PSDN Law stipulates that members of Polri are part of the supporting component (komduk). This provision, he believes, violates Article 30 paragraph (2) of the PSDN Law.
“Thus, the PSDN Law, which regulates the reserve component and Polri as a supporting component, contradicts Article 30 paragraph (2) of the 1945 Constitution, which regulates defense and security. In addition, placing members of Polri as a supporting component on par with trained citizens would also be very wrong,” he stressed.
Aan also emphasized that the stipulation of nonhuman resources—in this case natural resources, artificial resources, national facilities and infrastructure—as supporting and reserve components also contradicts Article 30 paragraph (2) of the 1945 Constitution. It has led to ambiguity of the meaning of main and supporting powers as well as legal uncertainty. It has also violated the principle of informed consent for the owners or administrators of those nonhuman resources, especially when they are mobilized for state defense.
Article 30 paragraph (2) of the 1945 Constitution is a limiting norm. The supporting and reserve components, Aan added, should be limited to human resources and exclude those nonhuman resources.
Aan also said Article 75 of the PSDN Law stipulates that the budget for the management of national resources for state defense can come from the state budget (APBN), regional budget (APBD), or other legitimate sources. However, Article 25 of the Defense Law and Article 66 of the TNI Law stipulate that the budget for state defense only comes from the state budget.
Law No. 23 of 2019 disregards centralistic budgeting. However, Article 75 letters b and c of the PSDN Law stipulates that the state defense budget from the regional budget and other legitimate sources aside from the state budget violates the absolutism principle of the central government.
International Humanitarian Law
Another expert for the Petitioners, Bhatara Ibnu Reza, said the PSDN Law does not determine TNI members as a reserve component explicitly, but they are prepared to be mobilized to reinforce the main component in facing military and hybrid threats, as per Article 29 of the PSDN Law. Bhatara referred to a fundamental distinction principle in the international humanitarian law between civilians and combatants.
The reserve component, he said, is not combatants, and can be further categorized as ‘illegitimate combatants.’ This of course will lead to loss for citizens because when they join a battle, they will be regarded as enemies.
Article 46 paragraph (1) of the PSDN Law reads, “For reserve components during active duty as referred to in Article 44 paragraph (1), military law is applied.”
The international humanitarian law demands clear status and no grey area in the distinction principle.
There is ambiguity of whether the reserve component is categorized as civilians or combatants in relation to their active duty or inactivity. In addition, the PSDN Law doesn’t expressly state that the reserve component is part of TNI.
Considering this, Bhatara believes the reserve component is civilians and cannot be categorized as members of any group, ministry, agency, or equivalent, or the same as TNI soldiers, which is not in the jurisdiction of Law No. 31 of 1997 on Military Justice.
The ambiguity of the reserve component will also harm their members in obtaining protection, either as civilians or as combatants, who have privileges. This also leads to constitutional losses, in particular in relation to Article 27 paragraph (1) in conjunction with Article 28D paragraph (1) of the 1945 Constitution, as well as the principle of equality before the law.
In the event of international armed conflicts, the status and main duties of members of TNI and Polri are clear. Police are not trained to be combatants and cannot be used as legitimate targets during such conflicts to become combatants and cannot be used as legitimate targets. International humanitarian law guarantees the protection of Polri members in accordance with Article 1 paragraph (1) of Additional Protocol I and II of 1977, even when the country has been occupied by the enemy, Article 54 of the Geneva Convention of 1949.
On the other hand, in non-international armed conflicts, the combatant status doesn’t apply. In Indonesia, this can occur when the president announces a state of emergency of all or some territories, as referred to in Government Regulation in Lieu of Law (Perppu) No. 23 of 1959.
“Based on this explanation, [I] believe that placing Polri members as a supporting component as referred to in Article 30 paragraph (1) of the PSDN Law is inappropriate and contradicts Article 30 paragraph (2) of the 1945 Constitution,” Bhatara said.
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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 unequal 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 10/26/2021 13:30 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.