CNN Indonesia | Wednesday, 27/10/2021 03:40 WIB
Jakarta, CNN Indonesia — Constitutional law experts assess the status of citizens to be ambiguous if they join the Reserve Component (Komcad) which is regulated by Law Number 23 of 2019 concerning Management of National Resources for National Defense (UU PSDN).
Hal tersebut disampaikan Dosen Ilmu Perundang-undangan Fakultas Hukum Universitas Brawijaya, Aan Eko Widarto yang dihadirkan sebagai ahli dari pemohon dalam sidang perkara Nomor 27/PUU-XIX/2021 ini berlangsung secara luring dan daring pada Senin (25/10) di Ruang Sidang Pleno Gedung Mahkamah Konstitusi (MK), Jakarta Pusat.
"The existence of this Reserved Component results in the unclear position of citizens as one of the Reserve Components," said Aan in front of a panel of constitutional judges led by Chief Anwar Usman.
He said that referring to Article 30 of the 1945 Constitution, it is regulated that the main forces of Indonesia's defense are the Military and Police. Meanwhile, the people as a supporting force.
However, he continued, Article 29 of the PSDN Law emphasizes that citizens as Reserve Components are prepared to be deployed through mobilization in order to enlarge and strengthen the strengths and capabilities of the Main Components in dealing with military threats and hybrid threats.
"Citizens in the provisions of Article 29 of the a quo PSDN Law [here] are not members of the military or the police," said Aan eko.
“Warga negara tersebut merupakan kekuatan utama atau kekuatan pendukung,” imbuhnya.
According to him, the ambiguity of the status of citizens who are the Reserve Components has implications for the ambiguity of the extent to which the people can be included in efforts to defend the state.
This ambiguity is compounded by the existence of two periods of service for citizens as Komcad as stipulated in Article 43 of the PSDN Law, which are "active" and "inactive".
“The status of citizens should remain a supporting force that is ready to be mobilized at any time. Citizens are not positioned as a reserve component whose position is not clear as the main force or not. In such a condition, it will further result in the loss of guarantees for the recognition of guarantees of protection and fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution," said Aan as quoted from the Constitutional Court's website.
Next, Aan explained the provisions of Article 20 paragraph (1) of the PSDN Law which determines that members of the National Police are part of the supporting component (komduk). According to Aan, this provision contradicts Article 30 Paragraph (2) of the 1945 Constitution.
"Thus, the PSDN Law which regulates the reserve component and the National Police as a supporting component, contradicts Article 30 paragraph (2) of the 1945 Constitution, which regulates defense and security efforts. In addition, placing members of the National Police as a supporting component on a par with trained citizens would also be very wrong,” said Aan.
For information, the application for a material review of the PSDN Law was submitted by four non-governmental organizations (NGOs) and three Indonesian citizens; Association for Participatory Community Initiatives for Justicial Transition (IMPARSIAL), Association for the Commission for Disappeared Persons and Victims of Violence (Kontras), Indonesian Public Virtue Foundation, Indonesian Legal Aid and Human Rights Association.
The Petitioners tested Article 4 paragraphs (2) and (3), Article 17, Article 18, Article 20 paragraph (1) letter a, Article 28, Article 29, Article 46, Article 66 paragraph (1) and paragraph (2), Article 75, Article 77, Article 78, Article 79, Article 81 and Article 82 of the PSDN Bill.
Therefore, to prevent violations of the constitutional rights of the Petitioners as a result of the enactment of the PSDN Law, the Petitioners request the Constitutional Court Justices to issue an Interlocutory Decision stating that the implementation of the PSDN Law, particularly related to the recruitment of reserve components, will be postponed as long as the PSDN Law is still in effect. in the process of testing in the Court.
Quoting from the Constitutional Court's website, in the continuation of the judicial review of the PSDN Law, Aan also emphasized the non-human arrangements related to Komcad: natural resources, artificial resources, national facilities and infrastructure. According to him, this is contrary to Article 30 Paragraph (2) of the 1945 Constitution. The mention of natural resources, artificial resources, as well as national facilities and infrastructure as elements of Komduk and Komcad, has caused the meaning of the main and supporting powers to be blurred, as determined Article 30 paragraph (2) of the 1945 Constitution. In fact, the formulation of norms in Article 30 paragraph (2) of the 1945 Constitution is limitative.
What should be meant by Reserve and Supporting Components, continued Aan, should only be limited to human resources that are part of the Indonesian people and do not include natural resources, artificial resources and other facilities and infrastructure. Regulations on natural resources, artificial resources and so on in the komduk create legal uncertainty and violate the principle of informed consent, both for owners or managers of natural resources, artificial resources and facilities and infrastructure. Especially when it will be mobilized for reasons of national defense.
Regarding the use of the state revenue and expenditure budget, Aan said Article 75 of the PSDN Law regulates that the budget allocation for the management of national resources for national defense can be sourced from the national and state profits, and other legitimate sources, whereas according to Article 25 of the Defense Law and Article 66 Law on the military, the source of the defense budget is only through the national profit.
Law Number 23 of 2019 ignores the use of a centralized budget. Article 75 letter b and letter c state that the financing of the management of national resources for national defense through the state profit and other legal sources is not binding apart from the state revenue and expenditure budget. This certainly violates the principle of absolute affairs of the central government.
Another expert on the Principles of Combatants in International Humanitarian Law applicant, Bhatara Ibnu Reza, said that the PSDN Law does not explicitly state that reserve component is a member of the military, but is prepared to be deployed through mobilization to enlarge and strengthen the strength and capabilities of computers in the face of military threats and threats. hybrid. Seeing this situation, Bhatara again referred to international humanitarian law. One of the fundamental principles in international humanitarian law is the distinction principle between civilians and combatants.
According to him, the status of the component is not a combatant and can further be categorized as an 'unlawful combatant'.
In addition, referring to Article 46 paragraph 1 of the PSDN Law, Bhatara said that the implementation of military law for Komcad during an active period was also a form of deviation from the principle of distinction. International humanitarian law demands assertiveness of status and there is no gray area in the principle of distinction.
The confusion and confusion as to whether a komcad member is a civilian or a combatant re-emerges from the situation that a komcad is active or inactive. In addition, there is a fact that the PSDN Law does not explicitly state that the reserve component is a part of the military.
Considering this, Bhatara is of the opinion that Komcad is a civilian and cannot be categorized as belonging to a member of one group, or department, or agency, or equalized, or considered the same as military soldiers, which means that they are not included in the jurisdiction of Law Number 31 of 1997. on Military Justice.
In addition, ambiguity in the status of the reserve components in relation to the principle of distinction will harm the members of the component to obtain protection, either as civilians or as combatants who have privileges.