The government is currently finalizing a draft Presidential Regulation on Military Involvement in Overcoming Terrorism Actions. Based on the draft that is circulating in the public, the draft Presidential Regulation has a number of serious problems, which if the government enforces its ratification, it will endanger the life of democracy, human rights, and the law enforcement system.
Imparsial views that the maintenance of a number of problematic provisions for the involvement of the military in the draft Presidential Regulation shows that the government does not seem to heed various critical notes and inputs both developed in the public and from the board of representatives (DPR). The government should take critical notes from the public and the DPR as important inputs that must be accommodated in the regulatory framework for the involvement of the military in overcoming acts of terrorism. Thus, the involvement remains in line with the mandate of their own Law and does not create new problems in dealing with acts of terrorism.
Imparsial assessed, based on the draft that was circulated to the public, the draft Presidential Regulation involving the TNI had many problematic articles. First, the deployment of military troops in dealing with terrorism can be carried out simply on the basis of a presidential order (Article 8 paragraph (2) of the draft Perpres) without any consideration from the DPR. This article clearly contradicts Article 7 paragraphs (2) and (3) of the Military Law that the deployment in overcoming terrorism must be based on state political decisions. Meanwhile, what is meant by a State Political Decision is a presidential decision in consultation with the DPR (explanation of Article 5 of the said Law).
Second, Article 14 of the draft Presidential Regulation states that the budget for dealing with terrorism can be sourced from the regional budget (APBD) and other sources outside the Indonesia's State Revenue and Expenditure Budget (APBN). This provision clearly contradicts Article 66 of the military Law, where the budget must be centralized and sourced from the latter. If this provision is implemented, it has the potential to cause accountability problems and has the potential to burden APBD which has been used to develop their respective regions. In addition, this provision is also not in line with the functions of the military which are centralized and not decentralized.
Third, the draft Presidential Regulation on the involvement of the military gives too broad and excessive authority by carrying out the functions of deterrence, prosecution and recovery (Article 2 of the draft Perpres) so that there is the potential for human rights violations to occur. In the midst of the government's failure to revise the Law on Military Courts, the TNI's duties that are too broad and excessive have the potential to create problems of impunity and accountability, considering that the military has its own judicial system and is not subject to the general justice system.
The provisions for the deterrence function in the draft Presidential Regulation are also "rubber" or have multiple interpretations. In Article 3 of the draft Presidential Regulation, what is meant by the function of deterring intelligence operations, territorial operations, information operations and other operations. Meanwhile, there was no more detailed explanation related to the "other operation". The loose interpretation of “other operations” creates the potential for irregularities and misuse to carry out operations that violate human rights under the pretext of countering the threat of terrorism.
Fourth, the breadth of regulation of the role of the military in overcoming acts of terrorism has the potential to cause overlapping tasks and authorities between them and other security institutions, namely the Police, the State Intelligence Agency of the Republic of Indonesia (BIN) and The Indonesian National Counter Terrorism Agency (BNPT). This creates a chaotic cross-handling of terrorism which in the end makes efforts to deal with terrorism ineffective.
Furthermore, Imparsial believes that if the government is to involve the military in dealing with acts of terrorism, the military must first submit to the general justice system. In this context, the government should reform the military justice system first because this is a 1998 reform mandate as stated in TAP MPR No. VII/MPR/2000 and also the mandate of the Military Law itself (Article 65 paragraph 2).
Based on the above, our Impartial urges:
- The government does not force the ratification of the draft Presidential Regulation on TNI's Involvement in Overcoming Terrorism Actions considering that if enforced it will endanger the order of democratic life, threaten human rights and damage the law enforcement system;
- The government must accommodate various critical notes and input from the DPR and the public regarding a number of problematic arrangements for involving the military in the President Rule Structure.
Jakarta, March 3rd, 2021