I Gde Panjta Astawa testified before the Court for the Government at the material judicial review hearing of Law No. 23 of 2019 on the National Resource Management for State Defense, Tuesday (1/18/2022). Photo by Humas MK/Ifa.
Tuesday, January 18, 2022 | 23:27 WIB
JAKARTA, Public Relations—The police force (POLRI) is not a defense force, pursuant to Article 5 paragraph (1) of Law No. 2 of 2002 on the National Police of the Republic of Indonesia, which reads, “The National Police of the Republic of Indonesia is a state instrument that plays a role in maintaining public security and order, enforcing the law and providing protection, security, and services to the community in the context of maintaining domestic security.”
This was said by Padjajaran University (Unpad) professor I Gde Panjta Astawa virtually at the material judicial review hearing of Law No. 23 of 2019 on the National Resource Management for State Defense (PSDN Law) on Tuesday, January 18, 2022. The hearing for case No. 27/PUU-XIX/2021 was chaired by Chief Justice Anwar Usman.
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Astawa, as an expert presented by the Government, said that during mobilization, the National Police, which normally serves as a supporting component (komduk) in the national defense system, is upgraded to the reserve component (komcad), to reinforce and strengthen the main component (komut).
“However, not all members of the National Police are upgraded to the reserve component. Only those who meet the physical and psychological requirements are,” he said.
He revealed that the National Police’s deployment as a main component is based on Article 41 paragraph (2) of the National Police Law, which reads, “In a state of military emergency and a state of war, the National Police of the Republic of Indonesia provides assistance to the Indonesian National Army in accordance with statutory regulations.”
“The National Police’s position as a supporting component is in line with Article 48 of the additional protocol of the Geneva Convention of August 12, 1949,” he added.
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Astawa asserted that in order to guarantee legal certainty, harmony was created between the PSDN Law and the National Police Law, the Defense Law and the TNI Law, all of which exercise the mandate of Article 30 paragraph (5) of the 1945 Constitution. They are also in line with international law, which regulates distinction and protection of civilians from armed conflicts.
He also said that the expansion of the definition of threat and is scope and types in the PSDN Law is inevitable because it was promulgated in 2002. In 2002 until the promulgation of the PSDN Law, there were relatively many changes or developments in the nature of threats.
“As such there is a possibility of merging the current and future types of threats, [which are currently categorized into] military threats, non-military threats, and hybrid threats, as regulated in the PSDN Law,” he added.
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Meanwhile, state defense observer Andi Widjajanto said that the PSDN Law along with the National Police Law and the TNI Law serve to improve the quality of democratic control which, in Huntingtonianism is called objective civilian control. It is done to prevent the use of the TNI from entering the political realm, which in Huntingtonianism is called subjective civilian control.
He believes subjective civilian control during the New Order, in which ABRI (Indonesian Military) was ordered to reinforce the Golkar (Golongan Karya) Party through one of the channels within the article. Meanwhile, during the Reform Era, Indonesia was committed to Article 30 of the 1945 Constitution in preventing the subjective civilian control from reinforcing the objective civilian control, or exercising political control.
“So, this political control made the so-called defense policy very tight and layered,” he explained.
Andi further explained that in drafting this law, the Government and the House of Representatives (DPR) deliberately distinguished between the use of the terminology ‘component’ and ‘force.’ The TNI is referred to as the main component while the people or citizens who voluntarily enlist as the reserve component do receive military training but are not in the main component.
“Enlisting citizens, who then receive military training as the reserve component, will not be part of the main component,” Andi stressed.
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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.
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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.
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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 01/19/2022 15:41 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.