Being Sued to the Court, The Reserve Component (Komcad) Rules are Considered an Interference with The Rights and Confusion of Citizens' Status

Wednesday, October 27th, 2021 12:03

Reporter : Bachtiarudin Alam –  The Constitutional Court (MK) held a judicial review session of Law Number 23 of 2019 concerning Management of National Resources for National Defense (UU PSDN), which became the basis for the creation of the Reserve Command otherwise known as Komcad.

The judicial review session registered in case Number 27/PUU-XIX/2021 was chaired by Chief Justice Anwar Usman on Monday (25/10) yesterday. The trial is scheduled to hear experts from the applicant's side.

In his presentation, Imparsial's senior researcher, Bhatara Ibnu Reza, as an expert assessed that the presence of Komcad has the potential to confuse the rights and status of civilians. According to him, the existence of the PSDN Law has the potential to violate the provisions of the 1949 Geneva conference (KJ 49) which regulates principles in international humanitarian law or international humanitarian law.

Ibnu explained that the results of KJ 49 which regulates related to international armed conflicts (KBI) and Non-International Armed Conflicts) also developed and were equipped with two additional protocols (PT) 1977, the first PT rules related to the protection of victims of the KBI war while the second PT regulates the victims of the KBNI war.

“Until now, Indonesia has not ratified the two protocols, however, they must be adhered to. This is due in part to the substance of the two protocols that have been recognized as international humanitarian law standards," said Ibnu, in a hearing quoted from the Constitutional Court's website, Wednesday (27/10).

However, Ibnu said, the presence of the PSDN Law which became the basis for the formation of Komcad, has the potential to eliminate the rights of the civilian population when an armed conflict occurs. Because according to him, if residents enter Komcad their status as civilians has the potential to disappear.

Because, according to Ibnu, a reserve component status can be considered as a combatant. Whereas international humanitarian law is the principle of difference between civilians and combatants, it has been regulated by KJ 49, in article 48, 51 paragraph 2, 52 paragraph 2, the first PT. As well as Article 13 paragraph 2 of the Second PT which specifically emphasizes the protection of the civilian population in the KBNI.

"This principle at the same time provides an explanation of which parties may and may not participate in hostilities and which ones should not become targets or objects of violence," he said.

As for the civilian population, continued Ibnu, in Article 50 paragraph 1 and the second PT KJ 1949 cannot be included in the category of combatants, because they are non-conflict parties.

As a result, civilians are not legitimate targets for attack. And must get protection from the parties involved in the armed conflict as regulated in the KJ 1949 and PP 1977.

“This means that they enjoy immunity from direct attacks by the parties to the conflict. However, if the person or the civilian population actively participates in hostilities, they will lose legal protection, so they are not entitled to the status of prisoners of war in international armed conflicts," Ibnu said.

"From the explanation of the differences that are regulated in the principles of differences that are regulated in this case, international humanitarian law and the interpretation of the international courts are affirmations for countries in the world to respect the principles (the results of the Geneva Conference)," he added.

Civilian Status Confusion

On the same occasion, constitutional law expert Aan Eko Widarto argued that the presence of Komcad had the potential to conflict with the 30 verses of 1945 Constitution regarding the main strength of Indonesia's defense. Military and Police. While citizens are a supporting force.

However, the presence of Article 29 of the PSDN Law regarding Komcad which is prepared to be deployed through mobilization in order to enlarge and strengthen the strengths and capabilities of the Main Components in dealing with military threats and hybrid threats has created confusion.

"Citizens in the provisions of Article 29 of the PSDN Law are not members of the Military or Police. Thus, when mobilized to strengthen the strength of the main components in the face of military threats and liquidity threats, there will be confusion in status," he explained.

"This citizen has the status as a civilian citizen or a citizen who is a member of the Indonesian National Police and Military" continued this Lecturer of Legislation from the Faculty of Law in Universitas Brawijaya.

In addition, Aan also highlighted the second ambiguity regarding the existence of two terms of service as Komcad as regulated in Article 43 of the PSDN Law which is divided into active and inactive.

“As long as Komcad is active, military law is enforced as stated in Article 46 (PSDN Law). Because it is not explicitly regulated in the PSDN Law as long as the reserve component is not active, military law is not enforced," he said.

So, Aan assessed that this could be another confusion regarding the status of citizens who become Komcad. Because they do not have benchmarks, the people can participate as Komcad which is ready to be mobilized at any time. However, it is not clear whether the position is 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 legal certainty which are known as guaranteed by Article 28 D paragraph 1 of the 1945 Constitution," he said.

Furthermore, the petition for judicial review was submitted by four legal entities and three individuals who are members of the Advocacy Team for Security Sector Reform in the aftermath of the pros and cons of the recruitment of Reserve Components or Komcad.

The disputers consist of Imparsial, KontraS, Public Virtue Foundation Jakarta, PBHI, and three individuals namely Ikhsan Yosarie, Gustika Fardani Jusuf, and Leon Alvinda Putra.

The Petitioners tested 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 Bill. [gil]

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