74 Years of the TNI: The Stagnation of Military Reform

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On October 5th, 2019, the Indonesian National Army (TNI) will commemorate its 74th Birthday. Regarding this momentum, IMPARSIAL first of all wishes to congratulate and at the same time appreciate all TNI soldiers for their role so far in maintaining the defense of the Indonesian state. At this age, there is great hope for the TNI in the future to become a defense actor who is stronger, more professional, and able to carry out their duties in an accountable manner, respecting the democratic state system and upholding human rights.

IMPARSIAL views that the momentum of the 74 years of the TNI's journey is not enough to be commemorated only through ceremonial activities such as through ceremonies or other symbolic activities. It is much more important and substantial if the TNI's Anniversary is also used as a momentum for the TNI to improve itself considering that there are still many problems and challenges faced by the TNI in the future. One of the most important is pushing back the TNI reform process.

The TNI reform process, which has been implemented since 1998, has indeed resulted in a number of positive achievements, such as the removal of the TNI's socio-political role, the removal of the National Soldier/Police from parliament, the abolition of TNI businesses and so on. However, all the achievements achieved in the early years of Indonesia's transitional politics do not indicate that the TNI reform process can be completed. What happened was the opposite where the TNI reform process not only stagnated but in a number of aspects it could be said that it was actually experiencing a setback.

The following are Imparsial's seven notes related to the TNI reform agenda which are homework that the government must encourage and carry out in the future, including:

First, The expanding military presence in the civilian sphere. One of the TNI reform agendas in 1998 was to limit the scope for military involvement in the civilian sphere and internal security. The TNI as a state defense actor is focused on dealing with external military threats as regulated in the Defense Law and the TNI Law. However, in recent years there have been developments where the military has begun to be actively involved or involved outside the domain of its main functions as a state defense actor, starting from involvement in handling internal security such as dealing with terrorism, under the pretext of assisting civilian government tasks, to the placement of officers. active military in civilian positions.

 The various MoUs between the TNI and several ministries and agencies that have recently been formed and are often used as a basis for military involvement in the civil and domestic security spheres are wrong steps and clearly contradict the TNI Law no. 34 of 2004 concerning the TNI. Based on Imparsial's records, there are at least 30 MoUs between the TNI and other ministries and agencies that have been established within the framework of implementing the TNI's assistance tasks (military operations other than war). The various MoUs contradict Article 7 paragraph (3) of the TNI Law which states that military operations other than war can only be carried out if there is a state political decision, in this case a presidential decision.

The spread of various MoUs has led to the strengthening of militarism. It is little by little and step by step has the potential to place security governance as in the New Order era, which opens up space for the presence of a broad military role in domestic security and the civilian sphere. These developments are not in line with the direction of reform of the security sector and the life of a democratic state.

Second, the presence of draft regulations and security policies that threaten democracy and human rights. One of them that was recently passed by the DPR is the Law on National Resource Management (UU PSDN) for National Defense. The formation of this law is not only not urgent, but substantially also has a number of problematic arrangements, such as not fully adopting human rights principles in the formation of Reserve Components, potentially being misused to control natural resources, including those owned and managed by individuals and the private sector, contrary to the principle of budget centralism, strengthening the existence of civilian militias in society, and so on.

Another regulation is the revision of the Terrorism Law which has been passed into Law no. 5 of 2018 also hampered TNI reform, which was related to TNI involvement in handling terrorism. The involvement of the TNI in dealing with terrorism is not really necessary because law enforcement institutions are still capable of dealing with existing acts of terrorism. The involvement of the TNI can only be done when the threat conditions are critical and law enforcement institutions are no longer able to handle them. Moreover, the involvement of the TNI in the new terrorism law has the potential to shift the policy of handling terrorism to be excessive and out of the criminal justice system's corridor.

In the framework of increasing cooperation between defense and security actors, especially cooperation between the TNI and Polri in dealing with gray areas and in dealing with urgent contingencies, the government should establish regulations regarding the assistance task of the TNI (TNI Assistance Bill) and revise Emergency Law No. 23 /1959 instead of submitting the National Security Bill in the Prolegnas and forcing its discussion in parliament.

Third, the reformation the military justice system. Another TNI reform agenda that has not yet been implemented is the reform of the military justice system through amendments to Law no. 31 of 1997 concerning Military Courts. In fact, this agenda is one of the hearts of TNI reform. As long as the reform of the military justice has not been carried out, it can be said that the reform of the TNI has not been completed. With this law, the TNI has its own legal regime in which TNI members who commit general crimes are tried in military courts. In practice, military justice is a means of impunity for members of the military who commit crimes. Even if there are punishments for members of the military who commit crimes, the sanctions are sometimes not optimal.

Military justice reform is actually the mandate of Law no. 34/2004 on the TNI. Article 65 Paragraph (2) of the Military Bill states that "soldiers are subject to the power of military courts in terms of violations of military criminal law and are subject to the power of general courts in terms of violations of general criminal law regulated by law".

In addition, efforts to realize military justice reform are a constitutional obligation that must be carried out by the government and parliament. Efforts to change the military judiciary is a constitutional step to consistently apply the principle of equality before the law {Article 27 Paragraph (1) in conjunction with Article 28 Letter d Paragraph (1) of the 1945 Constitution}. The consequence of the application of these legal principles is that members of the military who commit general crimes need to be tried in the same court as other citizens who commit general crimes, namely through the general justice mechanism.

Fourth, Restructuring the Territorial Command (Koter). The restructuring of the Koter was one of the TNI reform agendas promoted by the student and other democratic movements at the beginning of the 1998 reform. This agenda was voiced in a package with the agenda of eliminating the socio-political role of ABRI—now TNI—which was known as the dual function of ABRI. Along the way, although the political role of ABRI/TNI has been removed, the Koter structure has not yet been restructured and is still being maintained. In fact, the existence of Koter is growing in line with the expansion or formation of new provinces and regencies in Indonesia. The latest expansion can be seen from the formation of a new Military Regional Command (Kodam) in West Papua which will of course be followed by the formation of subordinate territorial structures, such as the Military Resort Command (Korem) and the Military District Command (Kodim).

The existence of Koter during the New Order era was closely related to the dual function of ABRI. The Koter, which was formed to resemble a hierarchy and structure of civil administration, from the center to the regions to the sub-district level, became an instrument for ABRI to carry out its socio-political role. Koter also became an instrument of control over society, such as being used to repress democratic groups opposed to the Suharto regime.

The character and character of the use of the Koter has also not changed after the political change from authoritarianism to democracy since 1998. Koter is sometimes used as a political instrument, especially during the electoral period and also as a tool of repression against society.

This restructuring has actually been mandated by Law no. 34 of 2004 concerning the TNI which requires political authorities to restructure the Koter whose deployment does not always follow the administrative structure of the government. The Koter restructuring also aims to ensure that the TNI's strength title can support the TNI's role as a means of national defense. As a consequence of the Koter restructuring and taking into account the strategic environment as well as the dynamics of the latest threats, it is necessary to immediately think about and form a TNI Posture model that emphasizes the development of an integrated and more integrated tri-dimensional force unit.

Fifth, build transparency and accountability in the procurement of defense equipment. The development of defense equipment as part of efforts to modernize and strengthen Indonesia's defense is indeed very important and necessary. However, this modernization effort must be carried out in a transparent and accountable manner. In practice so far, the procurement of national defense equipment not only deviates from the policy of developing a defense posture, but is also full of allegations of mark-ups in the procurement of the defense equipments.

In a number of procurements, for example, some defense equipments purchased by the Indonesian government are below standard and sometimes do not match what is needed. In addition, procurement through the purchase of used defense equipment is also a problem. In fact, it is clear that there is a tendency that the procurement of used defense equipment always has a greater potential for problems. Not only burdening the budget for maintenance, but also at risk of accidents that threaten the safety and security of soldiers.

In addition, the procurement of defense equipment is often colored by the involvement of third parties (brokers). In some cases, their involvement sometimes has implications for alleged mark-ups in the procurement of defense equipment. Therefore, the procurement of defense equipment in the future should not involve third parties, but should be carried out directly in a government to government mechanism.

Transparency International released a survey titled Government Defense Anti-Corruption Index 2015 which shows the risk of corruption in the military/defense sector. The survey stated that the risk of corruption in the military/defense sector in Indonesia is still relatively high (Indonesia gets a D). The issue of transparency and accountability in the procurement of defense equipment is indeed a serious problem. The absence of the role and authority of an independent institution such as the Corruption Eradication Commission (KPK) which also monitors and oversees the procurement of defense equipment makes the procurement process prone to irregularities. As a result, transparency and accountability in the procurement of defense equipment becomes problematic. In fact, spending on defense equipment in Indonesia uses large funds.

In an effort to encourage transparency and accountability in the procurement of Alutsista, the government should encourage the role of independent supervisory institutions such as the Corruption Eradication Commission (KPK) to supervise and investigate the use of the defense budget, or more specifically in the procurement of Alutsista. One of the efforts to promote the role of the KPK, the first step that must be encouraged by the government and parliament is to reform the military judiciary through the revision of Law No. 31/1997. Even without waiting for the revision of the law, the KPK can be involved in monitoring and investigating allegations of irregularities in the procurement of defense equipment on the basis of the lex specialis derogat lex generalis principle.

Sixth, TNI violence against civilians and human rights defenders. Until now, violence perpetrated by members of the TNI against them still occurs in various regions. These cases of violence show that TNI reform has not yet been completed, especially in an effort to break the militaristic culture inherited from the authoritarian New Order regime. The motives for the acts of violence perpetrated by these members varied, ranging from motives for personal problems, forms of solidarity with the wrong corps, land disputes with civilians, involvement in evictions, and violence against journalists and human rights defenders.

Seventh, improving the welfare of TNI soldiers. As a means of national defense, the TNI has the main task of guarding the Indonesian defense area. This is not an easy job. To carry out its main task, the TNI requires the completeness of the main weapon system (defense equipment) that is adequate and the capacity of professional human resources.

With such a heavy and sacred task, it is only natural that the professionalism of the TNI is supported by increasing the welfare of the soldiers. So far, the strengthening of human resources related to the welfare of TNI soldiers is still minimal. The limited number of official residences for members of the TNI is an example of a soldier's welfare problem.

In some cases, the welfare problems of TNI members have led them to seek other sources of income apart from their salaries. Although strengthening defense equipment is a necessity, providing welfare guarantees for soldiers is an obligation that must be fulfilled by the state, as emphasized in Article 49 in conjunction with Article 50 of Law No. 34/2004.

Based on some of the notes above, IMPARSIAL is urging:

1. The government must evaluate a number of problematic security regulations and policies, such as the PSDN Law which was recently ratified by the National Board of Civilian Representatives (DPR), various MoUs of the TNI with other ministries and agencies;
2. The government and the DPR will immediately discuss the revision of Law no. 31/1997 on Military Courts;
3. The government and the DPR will soon enact a law on co-administration tasks as the legal basis for military involvement in OMSP;
4. The government and the DPR need to improve the welfare of soldiers;
5. The government and the DPR need to modernize the defense equipment in a transparent and accountable manner;
6. Resolve all cases of violence through a fair trial mechanism;
7. Urge the new DPR to further improve the quality of effective supervision of the TNI in order to strengthen the professionalism of the TNI;
8. Restructuring the Koter as part of the TNI's legal mandate related to the TNI's posture and the title of TNI's strength.

Jakarta, October 4th, 2019

Al Araf

Director