This is an Expert's View of the National Resources Control (PSDN) Law Test

One of them, according to the expert, is that all provisions governing the reserve components (komcad) in the National Resources Control Law Law are contrary to Article 30 paragraph (2) of the 1945 Constitution.

By: Aida Mardatillah

HUKUMONLINE. COM-The Constitutional Court (MK) held a follow-up hearing to examine a number of articles in Law No.23 of 2019 on the Management of National Resources for National Defense (UU PSDN) offline and online, Monday (25/10/2021) in the Plenary Session Room MK building. The agenda for the hearing was to hear expert testimony from the Petitioners.

In the trial, Constitutional Law expert Aan Eko Widianto stated that Article 30 paragraph (2) of the 1945 Constitution contained two norms. First, national defense and security efforts are carried out through the universal people's defense and security system. Second, national defense and security efforts are carried out by one main force consisting of the National Armed Forces and the Indonesian National Police (Polri).

“The nomenclature or terms used in the 1945 Constitution are main power and supporting power. So, the national soldier/police are the main power and the citizens are the supporting. There is no mixing of the main and supporting forces here. The two are separated and the components are also different,” said Aan as quoted on the MK page.

This arrangement is then consistently regulated in Article 7 paragraphs (2) and (3) on National Defense. In Article 7 paragraph (2) of the National Defense Law it is stated, "The state defense system in the face of military threats places the TNI as the main component, supported by reserve components and supporting components. Then Article 7 paragraph (3) of the National Defense Law states, "The state defense system in the face of non-military threats places government institutions outside the defense sector as the main element, in accordance with the form and nature of the threats faced, supported by other elements of the nation's power. ”

"Thus, the role of the national armed forces (TNI) is clear as the main component to deal with military threats," explained Aan. 

However, according to Aan, the TNI and Polri which are the main forces in defense and security efforts according to Article 30 paragraph (2) of the 1945 Constitution have been negated (set aside, ed) by the PSDN Law which mixes main forces with supporting forces. For him, all provisions governing the reserve component (komcad) in the PSDN Law are contrary to Article 30 paragraph (2) of the 1945 Constitution.

He assessed that the existence of The Reserve Component, which consists of citizens, natural resources, artificial resources, and national infrastructure as stipulated in Article 28 paragraph (1) of the PSDN Law, has resulted in the unclear position of this citizen as one of the Komcad. The citizens of the country are the main force or the supporting force?  

According to Article 29 of the PSDN Law, these citizens as Komcad are prepared to be deployed through mobilization in order to enlarge and strengthen the strengths and capabilities of the main components (computing) to face military threats and hybrid threats. The citizen in Article 29 of the PSDN Law is not a member of the TNI or Polri. 

Thus, according to him, if citizens are mobilized through mobilization to enlarge and strengthen the power and capabilities of computers in the face of military threats and hybrid threats, they will experience confusion in status. Is this citizen a civil citizen or a citizen who is a member of the TNI/Polri?. This ambiguity is compounded by the existence of two periods of service for citizens as Komcad as regulated in Article 43 of the PSDN Law, namely active and inactive.

“The status of citizens should remain a supporting force that is ready to be mobilized at any time. Citizens are not positioned as a reserve component whose position is not clear as the main force or not. In such conditions, it will further result in the loss of guarantees for the recognition of guarantees of protection and fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution," explained Aan.

Next, Aan explained Article 20 paragraph (1) of the PSDN Law which determines that members of the National Police are part of the supporting component (komduk). According to Aan, this provision contradicts Article 30 paragraph (2) of the 1945 Constitution. Thus, the PSDN Law which regulates the reserve component and the National Police as a supporting component, contradicts Article 30 paragraph (2) of the 1945 Constitution, which regulates defense and security efforts.

"In addition, placing members of the National Police as a supporting component on a par with trained citizens, is also very wrong," said Aan.

Aan also emphasized that non-human arrangements, in this case natural resources, artificial resources, national facilities and infrastructure as komduk, as komcad, also contradicts Article 30 paragraph (2) of the 1945 Constitution. The mention of natural resources, artificial resources, and National facilities and infrastructure as elements of Komduk and Komcad, have caused the blurring of the meaning of main force and supporting power as stipulated in Article 30 paragraph (2) of the 1945 Constitution.

"In fact, the formulation of the norms of Article 30 paragraph (2) of the 1945 Constitution is limited," he said.  

What should be meant by komcad and komduk, said Aan, should only be limited to human resources that are part of the Indonesian people and do not include natural resources, artificial resources and other facilities and infrastructure. Regulations on natural resources, artificial resources and so on in the komduk create legal uncertainty and violate the principle of informed consent either for owners or managers of natural resources, artificial resources and facilities and infrastructure. Especially when it will be mobilized for reasons of national defense.

Regarding the use of the state revenue and expenditure budget (APBN), Aan said Article 75 of the PSDN Law regulates that the budget allocation for the management of national resources for national defense can be sourced from the APBN, APBD, and other legitimate sources. Whereas according to Article 25 of the National Defense Law and Article 66 of the TNI Law, the source of the defense budget is only through the State Budget. 

"Thus, Law Number 23 of 2019 concerning PSDN ignores the use of a centralized budget." 

Applications for judicial review of the PSDN Law were submitted by a number of non-governmental organizations (NGOs) and three citizens, namely Ikhsan Yosarie, Gustika Fardani Jusuf, and Leon Alvinda Putra. and Victims of Violence (Kontras), Indonesian Public Virtue Foundation, Indonesian Legal Aid and Human Rights Association (PBHI).

The petitioners request a review of Article 4 paragraphs (2) and (3), Article 17, Article 18, Article 20 paragraph (1) letter a, Article 28, Article 29, Article 46, Article 66 paragraph (1) and paragraph (2) , Article 75, Article 77, Article 78, Article 79, Article 81 and Article 82 of the PSDN Law. For example, the provisions of Article 4 paragraph (2) and paragraph (3) as well as Article 29 of the PSDN Law have created a situation of legal uncertainty, so that it is contrary to Article 1 paragraph (3) and Article 28D paragraph (1) as well as Article 30 paragraph (2) of the 1945 Constitution. 1945.

The situation of legal uncertainty due to the formulation of Article 4 paragraph (2) and paragraph (3) of Law 23/2019 which mutatis mutandis also has an impact on the ambiguity of the formulation of the norms of Article 29 of Law 23/2019, which regulates the mobilization of reserve components for face military threats and hybrid threats.

"In fact, in the regulation of Article 7 paragraph (2) of Law 3/2002 on National Defense, which has explicitly and provided limitations regarding the deployment of reserve components and supporting components that can only be mobilized to deal with military threats," said the lawyers for the parties. the applicant, Muhammad Busyrol Fuad in the previous trial, last Thursday (22/7/2021).   

According to him, the formulation of Article 17, Article 28, Article 66 paragraph (2), Article 79, Article 81 and Article 82 of the PSDN Law contradicts Article 30 Paragraph (2), Article 28G Paragraph (1), and Article 28H Paragraph (4) of the Constitution. 1945. Furthermore, he said that the mention of Natural Resources, Artificial Resources, and National Facilities and Infrastructure as elements of supporting components and reserve components in those articles has caused the meaning of main power and supporting power to be blurred as stipulated in Article 30 paragraph ( 2) the 1945 Constitution. In fact, the formulation of norms in Article 30 paragraph (2) of the 1945 Constitution is limitative.

“Strictly speaking, the constitution makers have explicitly stated, …the Indonesian National Army and the Indonesian National Police of the Republic of Indonesia, as the main force, and the people, as the supporting force. The constitution's makers have never once mentioned non-human elements (Natural Resources, Artificial Resources, and National Facilities and Infrastructure) as part of the main forces and supporting forces for national defense," said Busyrol. 

The petitioners also stated that the formulation of Article 18, Article 66 paragraph (1), Article 77, Article 78, and Article 79 of the PSDN Law contradicts Article 30 paragraph (2) of the 1945 Constitution, as well as Article 28E paragraph (2) of the 1945 Constitution relating to the Principles of Conscientious Objections. Furthermore, the provisions of Article 18 and Article 66 paragraph (1) of the PSDN Law, apart from being contrary to Article 30 paragraph (2) of the 1945 Constitution, are also contrary to the principles of conscientious objection (the right to refuse citizens based on their beliefs), which is a cardinal principle in involving civilians in defense efforts that have been recognized by various countries and the international community, and become part of international human rights law.

The formulation of Article 20 paragraph (1) letter a of the PSDN Law contradicts Article 30 paragraph (2) of the 1945 Constitution, also contradicts Article 28D Paragraph (1) of the 1945 Constitution because it creates a situation of legal uncertainty. The provision of Article 20 paragraph (1) of the PSDN Law which determines members of the National Police as part of the supporting components is contrary to Article 30 paragraph (2) of the 1945 Constitution, which clearly states that the TNI and Polri are the main forces in state defense and security. 

Then the formulation of Article 46 of the PSDN Law contradicts Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution because it is contrary to the principle of equality before the law. This is because Article 46 of the PSDN Law states that military law will apply to them reserve components during their active period, which also has a contrario meaning against them, military law does not apply military law during their inactive period.

The difference in the status of legal subjects between the reserve component in the active period and the inactive period actually stems from the confusion of the status of citizens who are the reserve component which has implications for the obscurity to what stage the people can be involved in state defense efforts. Next is the extent to which the legal status of those who join as a reserve component, as the main force or not. 

In addition, the formulation of Article 75 of the PSDN Law contradicts the principle of the division of authority affairs between the Central Government and Regional Governments, so that it is contrary to Article 18 paragraph (5) of the 1945 Constitution, has also created a situation of legal uncertainty which is contrary to Article 28D paragraph (1) of the 1945 Constitution. The provisions of Article 75 of the PSDN Law that determine funding for the management of National Resources for National Defense, one of which is sourced from the APBD, is contrary to the principle of division of authority between the central government and regional governments as regulated in Article 18 paragraph (5) of the 1945 Constitution and has created a situation of uncertainty. law that is contrary to Article 28D paragraph (1) of the 1945 Constitution. 

Therefore, in order to prevent violations of the constitutional rights of the Petitioners as a result of the enactment of the PSDN Law, the Petitioners ask the Constitutional Court to grant all requests by canceling a number of articles in the PSDN Law because they have the potential to conflict with human rights in the 1945 Constitution, harming the constitutional rights of the applicants.

In addition, the PSDN Law is considered destructive of democratic principles and security sector reform because it contradicts a number of other laws, such as the National Defense Law and the TNI Law. To prevent violations of the constitutional rights of the petitioners, requesting the MK Assembly to issue an Interlocutory Decision stating that the implementation of the PSDN Law, particularly related to the recruitment of reserve components, will be postponed as long as this Law is still in the process of being tested in the Constitutional Court.

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