The constitutional justices entering the courtroom for the judicial review hearing of Law No. 34 of 2004 on Indonesian National Armed Forces to hear the House of Representatives and the Commander of the Indonesian National Armed Forces, Tuesday (2/8/2022). Photo by Humas MK/Ilham W. M.
Tuesday, February 8, 2022 | 19:38 WIB
JAKARTA, Public Relations—Another judicial review hearing of Law No. 34 of 2004 on Indonesian National Armed Forces (TNI Law) for case No. 62/PUU-XIX/2021 was held by the Constitutional Court (MK) on Tuesday, February 8, 2022. The justices heard testimonies of the House of Representatives (DPR), the President, as well as the Commander of the Indonesian National Armed Forces (TNI) Andika Perkasa (Relevant Party) virtually.
“Regarding the change of retirement age, at the moment the Government and the House will discuss the TNI Bill, which is in the national legislative program,” Andika said before the plenary hearing chaired by Chief Justice Anwar Usman.
“Respectfully, I request permission not to read out [a response to the Petitioners’ arguments] because [the TNI] is still discussing [the TNI Bill]. If [I] laid it out here, it would later change,” he added.
Last, he appealed to the constitutional justices who examine, adjudicate, and rule on the case to hand down the wisest, fairest decision.
Also read: Gap in Retirement Age Between TNI and Police Questioned
Retirement Age Determined by Legislatures
Meanwhile, the President requested to delay his testimony on the case. Then, House member Arteria Dahlan gave a testimony on behalf of the House. The House asserted that the Petitioners must prove their constitutional impairment due to the enactment of the a quo articles.
“The Petitioners must also prove chronologically the causal relationship between their constitutional impairment that they suffered and the enactment of the a quo articles petitioned for review,” he said.
The House fully submitted to the panel of justices to consider and assess whether the Petitioners have legal standing pursuant to Article 51 paragraph (1) of the Constitutional Court Law and the Constitutional Court Decisions No. 06/PUU-III/2005 and No. 011/PUU-V/2007 on the parameter of constitutional impairment.
Commenting on the merit of the case, the House believes that the national reform, which was driven by the spirit of the Indonesian people to organize the life of the Indonesian nation for the better, has resulted in fundamental changes in the state and state administration system. These changes have been followed up, among others, by carrying out institutional arrangements in accordance with environmental developments and the demands of the future.
The House emphasized that changes to the state administration system also had implications on the TNI, including the separation of the TNI and the national police (Polri), leading to the need for the realignment of their respective roles and functions. The MPR (People’s Consultative Assembly) Decrees No. 6/MPR/2000 on the Separation of the TNI and Polri and Decree No. 7/MPR/2000 on the Roles of the TNI and the Roles of the Police were juridical references in developing a law that regulates the TNI.
Next, the House asserted that the retirement ages for TNI and police officers as well as their career levels and skills required for the positions are determined by their respective institutions. This is reflective of Article 30 of the 1945 Constitution, which stipulates that the state apparatuses for defense and security, consisting of the TNI and the Police, have their respective duties, functions, and authorities in accordance with the law.
“Therefore, the retirement ages are determined by the legislatures based on the needs of each of these institutions according to their duties and authorities. The determination of the retirement ages must, of course, be based on the needs of personnel and expertise based on job analysis, both in the Police and the TNI,” Arteria stressed.
Also read: Petitioners of TNI Law Convey Revisions
Euis Kurniasih and four other petitioners requested the material judicial review of Article 53 and Article 71 letter a of Law No. 34 of 2004 on Indonesian National Armed Forces (TNI Law).
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.”
The articles concern the retirement age limit of members of the Indonesian National Armed Forces (TNI). In the petition, the Petitioners argue 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.
They believe 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. 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.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/9/2022 08:39 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.
Tuesday, February 08, 2022 | 19:38 WIB 293