Imparsial, the Indonesian Human Rights Monitor
“The Government Must Re-Evaluate the Appointment of Active Military/Police Officers as Acting Regional Heads”
The Ministry of Home Affairs (Kemendagri) is currently preparing the Regional Chief In-Charge, both at the provincial and district/city levels who will end their term of office in 2022 and 2023. The appointment of the Acting regional heads is due to the end of the working term of the regional head. The regional head election (pilkada) will only be held simultaneously in 2024. Based on the Ministry of Home Affairs' records, there are 271 regional chiefs who will end their term of office with details of 101 chiefs in 2022 and 170 in 2023.
In the context of the appointment of the acting regional head, the government opens the possibility of coming from military soldiers and active Police personnels. The discourse has actually been realized in the second wave, in which of the 49 acting regional heads appointed by the Ministry of Home Affairs, at least one of them is still active in the military.
Imparsial views that the government, in this case the Ministry of Home Affairs, needs to review the plan to appoint an acting regional head from an active military/police element, considering that this is contrary to the main regulations, which are the Military and Police Laws. Although the appointment of an Acting Officer from a soldier/cop background is possible in the Regional Chief Election (Pilkada) Law and the National Civil Apparatus (ASN) Law, the master regulation must still be the main frame of reference. As active members of the military/police, of course, they still have to comply with the parent regulations that govern them, including when they get assignments outside their parent agency. Thus, it is imperative for the government to make the parent regulation a reference in the appointment of Acting Officers from the military/police. If the government continues to enforce its plans, it can cause various problems, both legally and with implications for the dynamics of politics and governance in the regions.
According to the rule of law, when referring to the main law, when cops and soldiers assigned to civilian positions, or in this case acting as regional heads, they must first resign or retire from their respective service. Article 47 paragraph 1 of the Military Law states "Soldiers can only occupy civilian positions after resigning or retiring from active military service." The same applies to Polri personnel, Article 28 paragraph (3) of the Polri Law confirms that “Members of the Indonesian National Police may hold positions outside the police force after resigning or retiring from the police service.” Based on these two provisions, if it is clear if the status is still a soldier/active personnel, then it is not allowed to carry out that position. Thus, according to the argument above, the appointment of the Regent In-Charge of West Seram, Maluku Province, whose status is suspected to be still an active Military officer, is contrarian to the military Law.
The appointment of active soldiers as regional head in-charge risks causing legal conflicts for the National Military. The question then is, if there is an alleged violation of a criminal act, is the acting regional head subject to the military justice mechanism or the general court? Referring to Article 9 paragraph (1) concerning military courts, it is stated that crimes committed by TNI soldiers are processed through military courts. Thus, it can be said that with his status as an active military soldier, the acting head of the region is subject to the military justice system, not through the general justice mechanism. So far, the military justice system has attracted a lot of criticism, not only because it contradicts the principle of equality before the law, but also because its practice is often not transparent and accountable.
Furthermore, Imparsial also views that in the appointment of the Regional Chief In-Charge it is not enough to only refer to the formal requirements as regulated in various existing laws. It is important for the government to also consider aspects of the competence of the names of the proposed candidates. In this context, it is important that the process of appointing the acting regional chief is carried out in a transparent, accountable manner and absorbs public aspirations, especially in the regions. The appointment process which is closed and not participatory is something that must be avoided. Unfortunately, the government through the Ministry of Home Affairs has not yet made implementing regulations on the procedures for filling vacancies in regional head positions as mandated by the Constitutional Court Decision No. 67 of 2021, so the process of appointing the current acting regional head has caused public uproar.
Based on the views above, Imparsial urges:
- The government, in this case the Ministry of Home Affairs, must re-evaluate the appointment of active soldiers/cops as The Regional Chief In-Charge, including candidates for West Seram Regency, Maluku who are currently suspected of being active soldiers;
- In this case, the government must immediately make rules regarding the procedures for filling the vacancies in regional head positions, as mandated in the Constitutional Court's decision no. 67 of 2021 so that the appointment of the chief in-charge is carried out democratically;
- Ensure transparency, accountability and public participation, especially aspirations that develop in the regions, in the process of appointing the Regional Chief In-charge, including disclosing the proposed names so that the public can provide input to the government.
Jakarta, May 25th, 2022
Gufron Mabruri (Director/0815-7543-4186)
Ardi Manto Adiputra (Vice Director/0812-6194-4069 )
Release Source: file:///C:/Users/HP/Downloads/SiaranPersImparsialPJKepalaDaerahTNIPoltiAktif-2(1)(2).pdf