The government and the DPR have passed Law no. 23 of 2019 concerning Management of National Resources for National Defense (UU PSDN) which regulates the Occasional Component. The Advocacy Team for Security Sector Reform considers that the formation of the Reserve Components based on the PSDN Law actually has problems both substantially and procedurally. Substantially, that is because of several provisions
We consider the law to be contrary to the values of human rights in the constitution, and procedurally the discussion of the PSDN Law was rushed and lacked public participation. Moreover, we assess the formation of Reserve Components which was carried out in the midst of the need for serious handling from the state in dealing with the situation.
The Covid-19 pandemic shows the country's low concern for humanitarian issues in handling this Covid pandemic. For this reason, today we have submitted a judicial review of a number of articles in the PSDN Law to the Constitutional Court.
The Advocacy Team for Security Sector Reform consists of several institutions engaged in human rights and security sector reform and individuals, namely Imparsial, KontraS, Jakarta Public Virtue Foundation, PBHI, LBH Jakarta, LBH Pers and several individuals namely Ikhsan Yosarie, Gustika Fardani Jusuf, and Leon Alvinda Putra. A number of provisions in the PSDN Law that we ask the Constitutional Court to cancel are Article 4 paragraphs (2) and (3), Article 17, Article 18, Article 20 paragraph (1) letter a, Article 28, Article 29, Article 46, Article 66 paragraphs (1) and (2), Article 75, Article 77, Article 78, Article 79, Article 81 and Article 82 of the PSDN Law.
Meanwhile, some of the substances that we consider to be problematic in law, human rights, and the management of the defense and security system in this PSDN Law that we ask for are canceled by MK are:
First, related to the very broad scope of threats. In Article 4 of the PSDN Law, the scope of threats includes military threats, non-military threats, and hybrid threats. The wide scope of threats 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. For this reason, we assess the provisions in Article 4 paragraphs (2) and (3) as well as Articles of 29 The A Quo Law is contradictory to a number of provisions regarding national defense, as regulated in the National Defense Law, which is the main regulatory instrument of national defense. And because of that, it can be said that the articles of A Quo clearly do not fulfill the principle of legal certainty in their formulation and are contrary to the constitution of Article 1 Paragraph (3) and Article 28D Paragraph (1), as well as Article 30 paragraph (2) of the 1945 Constitution.
Second, the determination of Reserve Components in the form of natural resources and artificial resources as well as national facilities and infrastructure ignores the principle of volunteerism. To become a Reserve Component, the two resources and facilities and infrastructure managed by both citizens and the private sector only passed verification and classification by the Ministry of Defense. without volunteering from the owner. Thus, this law does not provide recognition and protection of property rights which are part of human rights. This will open up space for potential conflicts over natural resources and land conflicts between the state and society. For this reason, we consider that the provisions in Article 17, Article 28, Article 66 paragraph (2), Article 79, Article 81 and Article 82 of the A Quo Law do not regulate rigidly and in detail regarding the determination of natural resources and artificial resources as components of reserves so that creates legal uncertainty and violates the principle of conscientious objection for the owner or manager of natural resources, artificial resources and other facilities and infrastructure, and therefore contradicts Article 30 paragraph (2), Article 28G paragraph (1), and Article 28H paragraph (4 ) the 1945 Constitution.
Third, related to criminal sanctions for everyone who becomes a Reserve Component and avoids a summons for mobilization which carries a penalty of up to 4 years. In addition, any person who makes the Reserve Component does not fulfill the summons for mobilization is also threatened with a prison sentence of two years. This of course violates the principle of conscientious objection (the right to refuse based on one's belief) which is the main principle in involving civilians in defense in various countries that has been recognized in international human rights norms. The reserve component must have the right to freedom of religion and belief and freedom of thought as guaranteed in the constitution. We consider that the provisions in Article 18, Article 66 paragraph (1), Article 77, Article 78, and Article 79 of the A Quo Law are contrary to Article 28E paragraph (2) of the 1945 Constitution which guarantees the right of every citizen to free thought, conscience, and religion, including the right to refuse to join the military on grounds of conscientious objection.
Fourth, regarding the use of military law for Reserve Components during the active period as stipulated in Article 46 of the PSDN Law, it is not appropriate. At a time when military reform was stalled due to the military's insubordination to the general justice system, the PSDN Law actually required the Reserve Components to comply with military law. In fact, 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-subordination to the general judiciary has the potential to perpetuate impunity and hinder military justice reform. For this reason, we are of the opinion that the provisions in Article 46 of the A Quo Law which regulates the use of the military justice system for the Reserve Components are contrary to the principles of equality before the law, as confirmed by the provisions of Article 27 paragraph (1). and Article 28D paragraph (1) of the 1945 Constitution.
Fifth, related to the budget for Reserve Components that can be obtained from sources other than the APBN, namely the APBD, as well as other sources that are not binding. According to Article 25 of Law no. 3 of 2002 concerning National Defense and Article 66 of Law no. 34 of 2004 concerning the TNI, the source of the defense budget is only through the APBN. Therefore, the PSDN Law contradicts the Defense Law itself and violates the principle of centralism in the defense budget. We consider that the provisions of Article 75 of the A Quo Law which allow the Reserve Component budgeting sources outside of the APBN do not comply with the principle of centralization in the administration of the national defense sector as well as the principle of division of authority between the central and regional governments as stipulated in Article 9 and Article 10 of the Regional Government Law which states that the Defense is an absolute 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 TNI.
Defense financing accommodation from APBD and other sources clearly has potential This poses a serious problem because the contribution of the budget aid is difficult to control. In addition, this will also complicate the accountability process so that it opens up opportunities for misuse and abuse. To that end, we assess the provisions of Article 75 The A Quo Law is unconstitutional because it contradicts Article 28D paragraph (1) of the 1945 Constitution.
On the basis of the foregoing and to encourage the government to focus on strengthening the main components through the modernization and improvement of the TNI's defense equipment which is currently in an alarming situation, seeing a number of defense equipment accidents, we urge the Honorable Panel of Judges of the Constitutional Court to grant all of our requests, namely canceling a number of articles in the PSDN Law because they have the potential to harm human rights, our constitution as the applicant is contrary to human rights regulated in the constitution, and destructive to the principles of democracy and security sector reform because it is contrary to a number of provisions in other laws and regulations, such as the law on national defense and the TNI law itself. In addition, to prevent the occurrence of violations of the constitutional rights of the Petitioners as a result of the enactment of the A Quo Law, the Petitioners hereby request to the Constitutional Court of Justice to issue an Interlocutory Decision stating that the implementation of the A Quo Law, particularly with regard to the recruitment of reserve components, is postponed. as long as the A Quo Law is still in the process of being reviewed at the Constitutional Court.
Jakarta, May 31st, 2021
Advocacy Team for Security Sector Reform
(Imparsial, Elsam, Public Virtue, KontraS, SETARA Institute, LBH Jakarta, PBHI, BEM
Universitas Indonesia, LBH Pers)
- Husein Ahmad (Imparsial) – 081259668926
- Adelita Kasih (KontraS) – 081311990790
- Usman Hamid (Yayasan Kebajikan Publik Jakarta) – 0811812149
- Chikita Edrini (PBHI) – 08979339678
- Ikhsan Yosarie (Pemohon) – 082286389295
- Gustika Fardani Jusuf (Pemohon) – 087876236076
- Leon Alvinda Putra (Pemohon) – 087831217771