The Petitioners’ expert, Muhammad Najib Azca, testifying virtually at the material judicial review hearing of Law No. 23 of 2019 on the National Resource Management for State Defense, Tuesday (11/23/2021). Photo by Humas MK/Ifa.
Tuesday, November 23, 2021 | 16:41 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 Tuesday morning, November 23, 2021 to hear experts’ testimonies.
At the hearing for case No. 27/PUU-XIX/2021 chaired by Chief Justice Anwar Usman, Muhammad Najib Azca, an expert for the Petitioners, said the reserve component (komcad) are national resources prepared to be deployed in order to strengthen the capabilities of the main component (komut).
He added that the law stipulates that national defense is all efforts to defend the sovereignty of the state, the territorial integrity of the Unitary State of the Republic of Indonesia and the safety of the entire nation from all threats and disturbances to the integrity of the nation and state.
Also read: State Defense Reserve Component in PSDN Law Challenged
Najib also said that state defense is aimed at dealing with military and non-military threats. The National Armed Forces (TNI) as the main component deals with military threats with the support of the reserve component and the supporting component (komduk). Meanwhile, the PSDN Law make government institutions outside the defense sector as the main element to deal with non-military threats.
Within the framework of national defense, efforts by the Ministry of Defense to establish a reserve component should be directed to assisting and strengthening the main component of national defense, i.e. TNI, in facing military threats or potential wars.
“Therefore, the Ministry of Defense’s step and policy to form a supporting component in facing threats other than military or non-military threats is inappropriate,” Najib said. This is because, pursuant to Article 7 of the State Defense Law, the main component in dealing with threats other than military threats are institutions outside the defense sector.
“I think this initial construct is important to remember and review when we talk about the reserve component in relation to national defense,” he added.
Following the construct, he added, in the constitutional politics framework, the steps and policies for the formation of reserve components to deal with non-military threats violate the constitutional political construct in a democracy that places the military as a tool of war. So, in a number of countries, the main duty of reserve components is to face military threats from other countries or to be deployed in the war.
Also read: Petitioners Revise Petition on Management of Human Resources for State Defense
Human Rights Violations
The Petitioners’ next expert, Jaka Triyana, said the a quo law potentially causes human rights violations as the reserve and supporting components are the weakness in its implementation.
He said that human rights must be understood as the standard of treatment for citizens during normal and abnormal situations. As such, punishments based on the equality of motivation, authority, and resources must be accompanied by the citizen’s sufficient knowledge.
He believes the PSDN Law must clearly stipulates when and where citizens should be involved in the reserve and supporting components against real threats. In addition, he believes the law does not stipulate risks that might arise.
Another expert, Eva Achjani Zulfa, said that the PSDN serves to regulate state defense. She believes it to only be an administrative law that contain provisions on criminal law.
“There is the term administrative penal law. This law is an administrative law that contains criminal sanctions,” she said.
Therefore, in criminal law, the capacity to declare a criminal provision necessary is inferior to the administrative law.
Also read: House: State Defense Law Not Only Concerns Military and Non-military Threats
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.
Also read: Experts' Views on Main, Reserve, Supporting Components in State Defense Law
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 11/24/2021 10:17 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.