Air vice-marshal Bambang Eko Suhariyanto testifying on behalf of the president at a material judicial review hearing of the TNI Law, Thursday (11/23/2023). Photo by MKRI/Fauzan.

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JAKARTA (MKRI) — Another material judicial review of Law No. 34 of 2004 on Indonesian Armed Forces (TNI Law) against the 1945 Constitution was held on Thursday, November 23, 2023. The petition No. 97/PUU-XXI/2023 was filed by seven TNI officers. The agenda of the hearing was to hear testimonies from the House of Representatives (DPR), the President, and the TNI Commander.

Open Legal Policy

Member of House Commission III Taufik Basari, familiarly called Tobas, said that the norms argued by the Petitioners on the regulation of the age limit for TNI retirees—especially officers, non-commissioned, officers, and enlisted officers—is the legislators’ open legal policy. In addition, the petition is clearly an issue related to the implementation of the norms of the TNI Law. They can convey their inputs and aspirations regarding arrangements in the TNI Law, especially with regard to the age limit for TNI retirement, to the Government and the House as the legislatures.

“The Petitioners’ concerns about the lack of discussion on the revision of the TNI Law are better addressed to legislatures, specifically the House and the President, or submit studies and rationales that can strengthen the need to extend the retirement age of TNI soldiers as well as other state servants,” Tobas said, delivering the House’s statement before Chief Justice Suhartoyo and seven other constitutional justices.

Tobas further said that the Petitioners argued that Article 53 of the TNI Law, which regulates the retirement age of TNI soldiers, are very incompatible and far from the provisions of the retirement age of other civil servants (Police, ASNs, prosecutors, teachers/lecturers/judges), resulting in disparities in treatment that harm sense of justice. In response to this, the House believes that because the retirement age is an open legal policy, it is set in accordance with the demands and conditions of each institution, as well as the burden of obligations and responsibilities.

“In this case, the TNI as a national defense has different characteristics and responsibilities from other professions (Police, ASNs, prosecutors, teachers/lecturers/judges) even though these professions are classified as civil servants,” Tobas stressed.

Meanwhile, the Government, represented by rear marshal (Ret.) Bambang Eko, special staff of the Ministry of Defense for institutional cooperation, stated that the loss caused by the difference in the retirement ages of military personnel and the Police is a constitutional complaint that cannot be utilized to justify the Petitioners’ loss. Furthermore, they were unable to articulate their constitutional losses.

The Government asserted that the retirement age limit would be professionally regulated by the legislatures based on the needs of each institution, in accordance with the duties and responsibility. The provisions on the retirement age limit should pay attention to the national defense, plan for personnel needs, and expertise needed based on the analysis of existing positions in TNI institutions.

The end of the military service is required for the institution to be regenerated with new personnel. The legislatures’ open legal policy regulates the determination of the retirement age. This is a lawmaking authority that are not forbidden and do not contradict the 1945 Constitution of the Republic of Indonesia. As a result of the Constitutional Court’s legal deliberations, the age limit is obviously an open legal policy with complete legislative authority.

Different Treatments

The TNI Commander, represented by Lt. Gen. Bambang Ismawan (TNI chief of staff) said that different regulations on retirement of age limit for civil servants (TNI, Police, ASNs, prosecutors, teachers/lecturers/judges) is clearly a difference in treatment that violates the sense of justice (unfairness) because it has resulted in different treatments to things that should be treated equally, and has differentiated the rights of everyone (in this case TNI soldiers) to obtain equal opportunities in government.

Bambang explained that based on the House’s decree No. 11/DPR/II/2022-2023 on national legislation program for the priority bill draft for 2023, the proposal to amend the TNI Law is not included in the list of national legislation program for the priority bill draft for 2023. Therefore, he hoped the Constitutional Court can provide fair legal certainty over the constitutionality of Article 53 of the TNI Law.

Also read:

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The Petitioners are active and retired TNI officers: rear admiral Kresno Buntoro, Law Corps colonel Sumaryo, staff sergeant Suwardi, retired naval captain Lasman Nahampun, retired Law Corps colonel Eko Haryanto, and retired Special Corps second lieutenant Sumanto, and military judge Marwan Suliandi (Petitioners I-VII).

They challenge Article 53 of the TNI Law, which 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.”

At the preliminary hearing on Thursday, September 7, legal counsel Viktor Santoso Tandiasa although the retirement age of TNI officers has been ruled by the Court in Decision No. 62/PUU-XIX/2021, in which it ordered lawmakers to revise the a quo norm, no change had been made.  

Retirement Age of 60 Years

Tandiasa also asserted that the retirement ages for civil servants in Indonesia should be made equal because many legislations regulating their professions (Police, state civil apparatus/ASN, prosecutors, teachers/lecturers, judges) set the retirement age at 60 years, even 70 years at the highest.

The adjustment to the retirement age of TNI officers to up to 60 years would also show the state’s appreciation for TNI officers’ service while they were in productive age group and would guarantee their welfare for longer or at least on part with members of the Police force, state civil apparatuses, prosecutors, teachers/lecturers, and judges.

Therefore, the Petitioners request a provisional decision, before the Court hands down a final decision, to postpone the enforcement of Article 53 of the TNI Law.

They also request that the Court declare Article 53 of the TNI Law conditionally unconstitutional and not legally binding if not interpreted as “Officers shall carry out military service until a maximum age of 60 (sixty) years for officers, and 58 (fifty-three) years for enlisted and non-commissioned officers.”

Author         : Utami Argawati
Editor          : Nur R.
PR               : Andhini S.F.
Translator     : Nyi Mas Laras Nur Inten Kemalasari/Yuniar Widiastuti (NL)

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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