The preliminary hearing for the material judicial review of Law No. 34 of 2004 on the Indonesian Armed Forces, Tuesday (5/27/2025). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the material judicial review of the Elucidation to Article 2 letter d of Law No. 34 of 2004 on the Indonesian Armed Forces (TNI/Army Law) on Tuesday, May 27, 2025. The case No. 85/PUU-XXIII/2025 was filed by Ahmad Soffan Aly.

The Elucidation to Article 2 letter d of the TNI Law reads, “Civil supremacy shall be the political power that belongs to or is attached to the state leaders elected by the people through general elections in accordance with the principles of democracy. Civil supremacy in relation to TNI means that TNI is subject to every policy and political decision made by the President through the constitutional mechanism process.”

Before Deputy Chief Justice Saldi Isra and members of the panel, the Petitioner through legal counsel Ferdian Zakiy Ferdian said civilian supremacy in the TNI Law has not fully reflected the democratic principles embodied in the 1945 Constitution, particularly in in the event of simultaneous vacancies of the office of president and vice president.

The Petitioner explained that the Reform has brought about fundamental changes in civil-military relations, by abolishing ABRI’s (Armed Forces) dual function and emphasizing the role of civilians in strategic decision-making. Therefore, the military should be fully under the control of the civilian authority, i.e. the president as the directly elected head of state.

However, the Petitioner argued, the Elucidation to Article 2 letter d of the TNI Law does not anticipate emergency conditions such as the simultaneous vacancies of the office of president and vice president. In such a situation, the Government will be run by the acting president, i.e. the Minister of Foreign Affairs, the Minister of Home Affairs, and the Minister of Defense collectively, as stipulated under Article 8 paragraph (3) of the 1945 Constitution.

“The Elucidation to the TNI Law only mentions the president as a leader directly elected by the people. In fact, in an emergency, executive power is delegated to the acting president, who is not the result of direct elections,” Ferdian explained before the panel of justices.

The Petitioner is concerned that the norm’s vagueness could make way for the TNI commander’s disobedience to the acting president, especially in situations of national crisis. This, he argued, could lead to the weakening of civilian supremacy and potential military insubordination that would threaten state stability.

“In such a vacuum, national leadership is run collectively, whereas the military requires a quick and single command. This risks ineffectiveness and even insubordination,” Ferdian continued.

The Petitioner argued that the legal uncertainty in this provision is contrary to Article 28D paragraph (1) of the 1945 Constitution on the guarantee of fair legal certainty. Therefore, he asked the Court to declare that the Elucidation to Article 2 letter d of the TNI Law unconstitutional and not legally binding, or at least to provide a constitutional interpretation so that civilian supremacy still applies in two government situations: normal and emergency.

Responding to the petition, Constitutional Justice Ridwan Mansyur advised him to explain the five parameters of legal standing in the Court’s previous decision. “Do observe it, so that you can show what your loss is. Not only mention the loss of constitutional rights, but explained it. You also contrast the article that you challenge with the constitutional basis. Explain that one by one,” he said.

At the end of the session, the panel gave the Petitioner 14 days to revise the petition and submit it by Tuesday, June 10, 2025.

Author       : Utami Argawati
Editor        : N. Rosi
PR            : Fauzan F.
Translator  : 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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