The President Should Postpone the Establishment of Reserve Components by the Ministry of Defense

Press Release, March 11th, 2020

Civil Society Coalition for Security Sector Reform

The Directorate General of Defense Potential (Pothan) of the Ministry of Defense said it would open the registration of Reserve Components. The plan is that the training will be held in July 2020 where people who have registered will be trained militarily for three months in a number of Rindams.

The Civil Society Coalition for Security Sector Reform considers that the Ministry of Defense's plan to establish a Reserve Component is not only a hasty step, but also not urgent at this time. Moreover, the legal basis governing the formation of the Reserve Components (Law 23/2019) has a number of serious problems for democratic state governance and human rights. If the Ministry of Defense's steps are forced, instead of strengthening the country's defense sector, it will create new problems.

The establishment of the Reserve Component has not actually been included in the priority agenda and even shows that there is an irregularity in determining priorities for the security sector reform agenda. If the government has a goal to strengthen the defense sector to make it more professional, strong and modern, then the development of the main component, namely the Indonesian National Army (TNI) should be a priority agenda and needs to be put forward by the government. The TNI as the main component still needs a lot of improvement and arrangement, such as increasing the welfare of soldiers, strengthening professionalism, modernizing defense equipment, and so on. In this context, the agenda for the formation of the Reserve Components can only be realized if the restructuring and strengthening of the main defense systems and components has been carried out.

The Coalition also considers that the legal rules for the formation of Reserve Components that were passed by the Board of National Representatives (DPR) at the end of 2019 also contain problematic substances, including:

First, the threat definition is too broad. Article 4 Paragraph (2) states that the threats in question consist of military threats, non-military threats and hybrids. The wide scope of the threat poses its own problems. The Reserve Components that have been prepared and formed by the government can be used to deal with domestic security threats such as an excuse to deal with the threat of communism and terrorism that have the potential to cause horizontal conflicts in society. Whereas the formation and use of Reserve Components should be oriented to support the main component, namely the National Army in an effort to deal with external military threats.

Second, the concept of state defense as regulated in the National Resource Management (PSDN) Bill is not only narrow but also militaristic. The PSDN Law explicitly states that military service is a form of state defense and the reserve components that are formed are prepared for this purpose. This can be seen in Article 6 Paragraph (2) which 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 that it will inevitably lead to civilian militarization efforts packaged through state defense programs.

It is important to note that the concept of state defense needs to be interpreted broadly, not limited to the domain of state defense with a militaristic dimension. The essence of state defense is an effort to realize the goals of state formation as affirmed in the 1945 Constitution, such as creating prosperity, justice, peace, and humanity. In this context, every citizen who works through their respective professions can essentially be interpreted as part of defending the country.

Third, the bill does not fully adopt human rights principles and norms. This can be seen in the partial application of the principle of volunteerism in the formation of the Reserve Components. It is important to understand, the principle of volunteerism must be viewed widely, not only at the time of registration but also in mobilization. The principle of volunteerism should provide space for citizens who have voluntarily registered to become a Reserve Component to change their options on the basis of their belief (conscientious objection) including at the time of mobilization.

The threat of criminal sanctions against members of the reserve component who refuses to call for mobilization even though it is done based on their trust and belief (Article 77 paragraph (1)), indicates that this Reserve Component is mandatory. 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.

The partial application of the principle of volunteerism can also be seen in the formation of Reserve Components from elements of Natural Resources (SDA) and Artificial Resources (SDB). If the regulation of Reserve Components for elements of citizens is opened, the registration mechanism will be opened voluntarily, but the same is not applied to elements of natural resources and natural resources owned or managed by citizens or the private sector.

The formation and use of Reserve Components from SDA and SDB elements has the potential to create new problems. SDA and SDB that have been designated as Reserve Components by the Minister of Defence, then the owner or manager must 'submit' to be fostered and mobilized. This opens up opportunities for abuse where under the pretext of establishing the Reserve Component, the authority can be used to control various natural resources owned individually, both in the private sector and citizens.

Fourth, the application of military law to the Reserve Components. Article 46 states that for the Reserve Components during their active period, military law is enforced. At a time when military reform was stalled due to the unresolved cases of past human rights violations, and the military's non-submission to the general judiciary, the PSDN Law actually stipulates that in military service the reserve components are subject to military law. However, there are several laws and regulations. Article 3 paragraph (4) of TAP MPR VII/2000 states "Indonesian National Army soldiers are subject to the power of the military courts in the case of violations of military law and submit to the powers of the general courts in the case of violations of general criminal law." Meanwhile, Article 65 paragraph (2) of Law no. 34/2004 reads “Soldiers are subject to the power of the military courts in terms of violations of military criminal law and are subject to the powers of the general courts in terms of violations of general criminal law regulated by law”.

Fifth, the financing mechanism in the National Resource Management bill ignores the principle of budget centralization. In Article 75 letters b and c states 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 principle of financing centralism. national defense budget. Article 25 paragraph (1) of Law no. 3/2002 on National Defense emphasized that “State defense is financed from the State Revenue and Expenditure Budget". Meanwhile, paragraph (2) states "Financing for 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.

Sixth, does not regulate the citizen's complaint mechanism. The PSDN Law does not regulate to include a citizen complaint mechanism in the event of the use of supporting components and reserves for inappropriate purposes, and a mechanism for accountability in cases of violence and violations committed by the Reserve Components. For example, can a citizen who is a component of the reserve refuse orders that are contrary to human rights? Or, is there a channel that allows citizens who are currently Reserve Components to file a complaint when a Reserve Component abuse occurs? The establishment of a citizen complaint mechanism is part of the citizen control mechanism to encourage accountability of the state and its institutions, including to actors in the administration of the defense sector.

Based on the above notes, the Civil Society Coalition for Security Sector Reform urges that:

  1. The President had to postpone the Ministry of Defense's plan to establish a Reserve Component. Apart from not being urgent to do so at this time, the bill also has many problematic articles;
  2. The DPR to conduct a legislative review on the bill before it is implemented;
  3. The President needs to prioritize strengthening the Main Component, namely the military in the development of national defense, such as improving the welfare of soldiers, strengthening professionalism, modernizing the defense system, as well as the legal umbrella that supports it.

Jakarta, March 11th, 2020

Civil Society Coalition for Security Sector Reform

IMPARSIAL, KontraS, ELSAM, SETARA Institute, LBH Pers, HRWG, Institut Demokrasi dan Keamanan Indonesia, LBH Jakarta, LBH Masyarakat, Indonesia Corruption Watch, PBHI.

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