Civil Society Coalition Press Release
President Joko Widodo has signed Government Regulation (PP) Number 3 of 2021 concerning the Implementation of Law Number 23 of 2019 concerning Management of National Resources for National Defense. As reported, on the basis of the Government Regulation (PP), the Ministry of Defense (Kemhan) will immediately begin the process of recruiting and training the National Defense Reserve Components.
We view the formation of the National Defense Reserve Component as a hasty step considering that not only is the urgency of its formation being questioned, but the regulatory framework in the National Resource Management (PSDN) Bill also has some quite fundamental problems because it threatens the constitutional rights of citizens and interferes with democratic life.
If the plan is still enforced, the existence of reserve components will not strengthen national defense, but on the contrary will create new problems. In this context, the government should seriously look at various criticisms and public objections related to the plan to form a National Defense Reserve Component.
The establishment of the Reserve Components has indeed become an inseparable part in the development of the national defense force. However, the formation of this component should be carried out by considering the priority scale of the security sector reform agenda, especially the development of the Military as its main component which still leaves homework, such as the modernization of the defense equipment system which is limping due to a limited budget, the lack of welfare of soldiers and a quite few of their reform agendas that have not yet been properly implemented. The government should focus on building the military as a whole, not spending a budget for the formation of the Reserve Components whose urgency remains being questioned.
We also consider that the regulatory framework for Reserve Components in the Source Management Bill also has many serious problems. First, the broad scope of threats regulated in the said bill. Article 4 Paragraph (2) states that threats consist of military threats, non-military threats and hybrids. The extent of the threat poses its own problems, where the Reserve Components that have been prepared and formed by the government can be used to deal with domestic security threats such as pretexts to deal with the threat of communism, terrorism, and domestic conflicts that have the potential to cause horizontal conflicts in society. In fact, the formation and use of reserve components should be oriented to support the main component of national defense, namely the military in terms of dealing with external military threats.
Second, the narrative of defending the country built by the government is inconsistent. The bill explicitly states that military service is a form of state defense and the reserve components that are formed are prepared for this purpose. In fact, defending the country can be done in various ways and it does not always have a military dimension. Article 6 Paragraph (2) states that basic military training is mandatory to be one of four forms of citizen participation in efforts to defend the country. This approach tends to be militaristic, so it is unavoidable that there will be attempts to militarize civilians through the state defense program. Not to mention that the concept of the state defense program offered is also not clear enough.
Third, the existence of unclear reserve components – whether military or civilian – raises the potential for violations of international humanitarian law, especially the distinction principle. This principle clearly distinguishes two categories of people in situations of international armed conflict, namely combatants and civilians. Even though Law no. 3 of 2002 concerning National Defense also adopts the concept of oneness, we should make corrections to practices that are contrary to the principle of distinction which is an important and inseparable part of Indonesia's international obligations as a party to the 1949 Geneva Conventions.
The use of Military Law for Reserve Components during the active period as regulated in Article 46 of the Source Management Bill is a fatal mistake. At a time when military reform was stalled due to the unresolved cases of past human rights violations, as well as the military's non-subordination to the general justice system, the bill actually obliges the reserve component to comply with military law. Whereas the obligation to submit to the general justice system for military members is the order of Article 3 Paragraph (4) TAP MPR VII/2000 and Article 65 Paragraph (2) of Law no. 34 of 2004. This non-compliance with the general judiciary has the potential to perpetuate impunity and hinder military justice reform.
Fourth, the bill does not fully adopt human rights principles and norms. Article 51-56 regulates that the registration of reserve components by citizens is voluntary, but this provision is different for non-human reserve components, namely natural resources (SDA) and artificial resources (SDB), which do not recognize the principle of voluntarism. Moreover, the rules of the game for determining SDA and SDB as The Reserve Component isn't exactly rigid, so that it has the potential to violate human rights, especially related to property rights (right to property).
The principle of volunteerism must be viewed broadly, not only limited to absolute choices in this case when citizens register voluntarily and are bound forever without any opportunity to change their choices. This principle also provides an opportunity for citizens who have registered voluntarily to change their options if they are mobilized based on their beliefs (conscientious objection).
On the other hand, this law threatens with criminal sanctions against members of the reserve component for refusing a summons to mobilize even if it is based on their beliefs and beliefs (Article 77 paragraph (1)). The absence of an article that provides for exceptions for those who refuse military service because it is contrary to their beliefs is a violation of Article 18 of the International Covenant on Civil and Political Rights which protects the right to freedom of thought, belief and religion. This has been emphasized by the United Nations Human Rights Commission in its General Comment No. 22 and other comments made in response to petition procedures and reports on the application of the Covenant submitted by States parties. As a state party to the Covenant, Indonesia is obliged to ensure that there are articles that regulate these exceptions.
Fifth, the financing mechanism in the bill is problematic because it contradicts the principle of centralization of the defense budget. In Article 75 letters b and c it is stated that the financing of national resource management through the Regional Revenue and Expenditure Budget (APBD) and other legal and non-binding sources apart from the National Revenue and Expenditure Budget (APBN), has violated the centralism principle of financing national defense budget. Article 25 paragraph (1) of Law no. 3/2002 on National Defense affirms "State defense is financed from the State Budget". Meanwhile, Article 25 paragraph (2) states "The financing of state defense is aimed at building, maintaining, developing, and using the Indonesian National Army and other defense components".
The field of state defense is one of the areas of central government whose management authority remains in the hands of the central government as stated in the constitution (UUD 1945), the Law for National Defense (Article 13 paragraph 1), the Military and the Regional Government. The centralization of the implementation of the national defense sector is in line with the division of authority between the central and regional governments as confirmed in Article 9 and Article 10 of Law no. 23/2014 concerning Regional Government which states that the defense sector is an absolute central government affair. Moreover, budget centralization is a control mechanism for the security sector, not only to monitor the effectiveness of budget use but also to control the military. Defense financing accommodation from the APBD and other sources clearly has the potential to cause serious problems because the contribution of budget assistance is difficult to control. In addition, this will also complicate the accountability process so as to open up opportunities for misuse and irregularities.
Based on the above reading, we urge:
- The government was misguided and clearly militarized by accelerating implementation through Presidential Decree no. 3 of 2021 concerning The Resource Management. The President should have carried out a legislative review of this bill before it was implemented;
- The government to focus on strengthening its main components, which is the military in terms of strengthening the defense equipment system, increasing their professional capacity, and increasing the welfare of soldiers in the midst of a limited defense budget;
- If it is to be encouraged, the formation of a reserve component should focus on involving only civil servants and not need to make the general public as part of the object of basic military training. The large number of civil servants can be a potential reserve component, and the control of post-training civil servants is also more measurable than the general public.
Jakarta, January 25th, 2021
Civil Society Coalition
(Imparsial, ELSAM, LBH Pers, SETARA Institute, HRWG, KontraS, PBHI, IDeKA Indonesia, Centra Initiative)
For further information, please contact: Gufron Mabruri (Director of IMPARSIAL), telephone: 081213340612; Gustika F. Jusuf (IMPARSIAL Researcher), telephone: 087876236076; Wahyudi Djafar (Executive Director of ELSAM), telephone: 081382083993; Al Araf (Chairman of the Central Initiative), telephone: 081381694847; Ade Wahyudin (Director of LBH Pers), telephone: 082146888873; Ikhsan Yosarie (SETARA Institute Researcher), telephone: 082286389295; Muhamad Hafiz (Executive Director of HRWG), telephone: 081282958035; Fatia Maulidiyanti (KontraS Coordinator) telephone: +6281913091992; Julius Hebrew (Secretary General of PBHI), telephone: 081314969726.