Constitutional Justices Enny Nurbaningsih and Suhartoyo discussing the Constitutional Court’s legal considerations, Monday (10/31/2022). Photo by MKRI/Bayu.

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JAKARTA (MKRI)—The determination of the reserve component (komcad) in the form of natural and man-made resources as well as national facilities and infrastructure did not ignore the principle of volunteerism because it has gone through a series of stages by the Ministry of Defense and continue to provide recognition and protection of property rights, which are part of human rights. Thus, the reserve component does lead to legal uncertainty and does not violate the principle of conscientious objection for the owner or manager of natural resources, man-made resources, and other facilities and infrastructure. This was the Court’s legal considerations for Decision No. 27/PUU-XIX/2021 read out by Constitutional Justice Enny Nurbaningsih on Monday, October 31, 2022.

“Thus, the reserve component is one of the media for citizen participation and as part of national facilities and infrastructure in national defense by the government while implementing a democratic, fair, and just national defense governance system that respects human rights and abide by laws and regulations,” she said alongside Chief Justice Anwar Usman and the other constitutional justices.

The petition was filed by four civil service organizations (CSOs) and three individual citizens. The CSOs are 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 Law No. 23 of 2019 on the National Resource Management for State Defense (PSDN Law).

Criminal Provisions

Justice Enny further stated that it was related to the criminal provisions in Articles 79-83 of the PSDN Law, which the Petitioners disputed and deemed to have violated the principle of conscientious objection because the provisions were not rigid enough. The Court affirmed that the criminal norm belongs to the administrative penal law or is legislation on state administration that contains criminal punishments. The provision of obligation in Article 66 of the PSDN Law is accompanied by criminal provisions to protect the nation and state because the obligation of the owner and/or manager to hand over the utilization of natural resources, man-made resources, and national facilities and infrastructure should be part of the reserve component.

“Therefore, the threat of criminal sanctions is a logical consequence to avoid denial and deception. The Court believes that clear criminal sanctions will accelerate rehabilitation and demobilization. Moreover, the determination of the reserve component follows a strict procedure with the president’s statement to mobilize if all or part of the territory of the Republic of Indonesia is in a state of military emergency and this must first be approved by the DPR and the state of military emergency can occur when the country faces military or hybrid threats,” she explained.

Hybrid Threats

The Court believes legislators need to immediately regulate in more detail and comprehensively hybrid threats that warrant mobilization by harmonizing and synchronizing it with other laws, including Law No. 3 of 2002 and Law No. 34 of 2004. This comprehensive change, Justice Enny said, needs to be done immediately considering the distinction between military, non-military, and hybrid threats in Article 4 paragraph (3) of the PSDN Law. Moreover, the Elucidation to Article 4 paragraph (2) letter c of the PSDN Law explains that hybrid threats are a mix between military and non-military threats.

“Therefore, based on these legal considerations, the Court believes the Petitioners’ arguments against the constitutionality of Article 17, Article 28, Article 66 paragraph (2), Article 81, and Article 82 of Law No. 23 of 2019 were legally groundless,” she added.

Therefore, in the verdict read out by Chief Justice Anwar Usman, the Court decided to reject the Petitioners’ provisional petition in its entirety. “[The Court] declares the Petitioners’ petition against Article 75 and Article 79 of Law No. 23 of 2019 on the National Resource Management for State Defense inadmissible; to reject the Petitioners’ petition for the rest and the remainder,” he said.

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The Petitioners asserted that 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. Meanwhile, 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.

As such, 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.

They also believe that 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 Petitioners also argued 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 (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.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : M. Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/3/2022 15:32 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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