The Petitioners’ counsels explaining the merit of the case virtually at the preliminary hearing of the material judicial review of Law No. 34 of 2004 on Indonesian National Armed Forces, Tuesday (11/30/2021). Photo by Humas MK/Ifa.

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Tuesday, November 30, 2021 | 20:20 WIB

JAKARTA, Public Relations—A provision on the retirement age limit of members of the Indonesian National Armed Forces (TNI) in Article 53 and Article 71 letter a of Law No. 34 of 2004 on Indonesian National Armed Forces (TNI Law) is being challenged. Euis Kurniasih, an army veteran and ex-member of the Women’s Army Corps (Kowad), and three other individuals petitioned the case No. 62/PUU-XIX/2021.

Article 53 of the TNI Law reads, “Officers shall carry out military service until a maximum age of 58 (fifty-eight) years for officers, and 53 (fifty-three) years for enlisted and non-commissioned officers.”

Article 71 letter a of the TNI Law reads, “At the time this law enters into force, the provision regarding the retirement age as referred to in Article 33 are regulated as follows: a. The maximum retirement age is 58 (fifty-eight) years for officers and 53 (fifty-three) years for enlisted and non-commissioned officers, only applies to TNI soldiers who, as of the date this law is enacted, have not been declared retired from the TNI service.”

In the petition, the Petitioners argued that the retirement age among TNI officers in the a quo articles are different from that among police officers. They believe that the retirement age of police officers at 58 years applies to all, not differentiated based on rank, said Kurniawan, another counsel, at the hearing on Tuesday, November 30, 2021.

“Police officers who possess special expertise and are highly required in Polri’s duties can be maintained until the age of 60, while bintara [(enlisted)] and tamtama [(non-commissioned)] TNI officers must retire at the age of 53 and perwira [(officers)] must retire at 58, and [their tenure] may not be extended,” he said to the justice panel chaired by Constitutional Justice Arief Hidayat.

The Petitioners believe that TNI officers also have special expertise and may fill certain needs of the army. There are special forces within TNI, such as the Special Operations Command (Koopssus), who executes special operations missions and activities to support those missions that requires speed and high success for national interest within and outside of the republic to support the main duties of the TNI.

Special expertise is something inherent in TNI officers, but it has not been specifically regulated in the TNI Law. The Petitioners also argued that the extension of retirement age for TNI officers used to be based on ranks in Law No. 2 of 1988. TNI officers in certain ranks must have special expertise, without which they would not occupy those ranks.

“It is clear that Article 53 and Article 71 letter a of the TNI Law has created different treatments towards TNI officers and police officers, who are similarly state apparatuses that carry out state security and defense, and have really given different treatments to things that are the same, thus essentially violates Article 27 paragraph (1) of the 1945 Constitution and at the same time violates the principle of fair legal certainty as referred to in Article 28D paragraph (1) of the 1945 Constitution,” Kurniawan stressed.

Therefore, in the petitum, the Petitioners requested that Article 53 and Article 71 letter a of the TNI Law be declared in violation of Article 27 paragraphs (1) and (2) and Article 28D paragraph (1) of the 1945 Constitution.

“… and [be declared] not legally binding insofar as not interpreted to mean ‘the provision on retirement age for officers of the Indonesian National Armed Forces is equated to the provision on retirement age for members of the Indonesian National Police and Indonesian National Armed Forces officers in certain ranks and who are still needed on duty, the retirement age may be extended to a maximum of the same as that for members of the Indonesian National Police who have special expertise and are highly needed,’” Kurniawan stressed.

Justices’ Advice

In response to the Petitioners’ arguments, Constitutional Justice Manahan M. P. Sitompul said that the petition had followed the standard format. “However, I saw that the relation between the authorizer and the authorized in the petition similar to that in general courts. This [power of attorney] was signed by Euis. Is it accurate that Euis signed the petition? The format is usually ‘[I], the undersigned, has received power of attorney from…,’” he said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners to elaborate on the authorities of TNI and the police. “TNI has authorities in the defense aspect, while the police in the security aspect. These are different, so please elaborate in the posita to strengthen the arguments, because the Petitioners is comparing TNI and the police, when the keywords are in the 1945 Constitution and TAP MPR,” he said.

Next, Constitutional Justice Arief Hidayat advised the Petitioners in terms of the retirement age, “Please find cases that the Court has ruled where age [limits] were changed. This [petition] requested a change to retirement age. Please read the legal considerations in the Court decisions where the Court changed such age [limits], when it exercise caution to do so. The Court holds a principle that changing and determining age [limits] is the policy by the legislatures; the Court cannot change [such a policy].”

The Petitioners were given 14 workdays to revise the petition and submit it to the Registrar’s Office by Monday, December 13, 2021. Next, the Court will hear the revisions to the petition.

Writer    : Nano Tresna Arfana
Editor   : Lulu Anjarsari P.
PR        : M. Halim
Translator : Yuniar Widiastuti (NL)

Translation uploaded on 12/8/2021 15:54 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.

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