“The PSDN Law is Full of Problems: From Criminal Threats to Military Law Enforcement for Civilians”

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Civil Society Coalition for Security Sector Reform

Tuesday, November 23rd, 2021, the Constitutional Court held a hearing with the agenda of hearing the 2nd expert testimony from the Petitioners. At the meeting with this agenda, the Advocacy team for Security Sector Reform brought back three experts. The experts who were presented based on their expertise then gave arguments why the existence of Komcad in the PSDN Law was problematic, both from the point of view of international humanitarian law, criminal law, conflict management, and human rights. The three experts are:

  1. Mohammad Najib Azca, M.A., Ph.D. (Lecturer of UGM's Department of Sociology and Head of Center for Security and Peace Studies);
  2. Dr. Eva Achjani Zulfa, S.H., M.H. (Lecturer of Criminal Law Faculty of Law UI);
  3. Dr. Heribertus Jaka Triyana, S.H., LL.M, M.A. (Lecturer of Law and Human Rights, Faculty of UGM).

In their presentations, the experts stated the following:

Expert Eva Achjani Zulfa

  1. The criminal provisions in the PSDN Law should not make criminal law a blunt knife. So it is the duty of the legislators to determine the best other legal means before using the means of criminal law.
  2. The participation of citizens as a reserve component is basically voluntary. It also refers to the principle of conscientious objector. So it is inappropriate if there is a criminal sanction imposed in terms of forced participation as referred to in Article 77 paragraph (1) and paragraph (2) of the PSDN Law.
  3. Ownership of property (right to property) is a human right that must be protected, referring to the provisions of Article 17 of the UN Declaration of Human Rights. So the provisions in the PSDN Law which contain criminal threats for those who do not carry out the obligation to surrender the use of part or all of their Natural Resources, Artificial Resources, and/or National Facilities and Infrastructure which have been designated as Reserve Components, are contrary to constitutional rights. and at the same time human rights.
  4. Defense theory has moved widely, so that current defense leads to economic resilience, human resource security, and environmental resilience. This is not in line with the PSDN Law which discusses more about resilience in terms of security. In fact, in criminal law the arrangements are made by looking at real and broader needs. The wise use of criminal means is carried out based on the context of need.

Expert Mohammad Najib Azca

  1. Article 29 of the PSDN Law which regulates the presentation of non-military threats and hybrid threats can be declared as errors, even deviations. Because, in the construction of constitutional politics, for example in the Defense Law, Komcad is directed to assist and strengthen the Main Component of National Defense, namely the TNI, in the context of facing military threats or the possibility of war with other parties/states. This construction locks the military position in a strategic position, namely as a tool of war, including the involvement of Reserve Components. There is only one condition where Komcad can carry out non-military tasks, namely in the event of a state emergency.
  2. In the 21st century conventional warfare is statistically steep decline. Currently the war is dominated by the new war model of war (new war).
  3. In the various researches that I have conducted on conflicts and wars, especially regarding the 'new war', the dynamics of the 'new war' as happened in the Ambon-Maluku conflict, Komcad has the possibility to repeat history where Komcad can be involved in the process of mobilizing citizens or militia groups or laskar. to be involved in incidents of conflict and war based on identity politics or other political interests that also involve members of the security forces from both the TNI and Polri elements. The provisions of the articles concerning the obligation to mobilize Komcad need to be watched out for because it opens the possibility of forming civilian units that are used for political interests and the dimensions of identity politics.
  4. Indonesia's specific experience of the conflict involving Pam Swakarsa needs to be kept in mind. This is because the similarity of the characteristics of Pam Swakarsa and Komcad in the PSDN Law must be seriously considered so that it will no longer create horizontal conflicts in society.

Expert Heribertus Jaka Triyana

  1. The concept of State Defense contained in the PSDN Law is not only narrow, but also militaristic (Article 6 paragraph (2) of the PSDN Law). In fact, all efforts to realize the goal of state formation as stated in the Preamble to the 1945 Constitution, every citizen who works through their respective professions must essentially be interpreted as part of active efforts to defend the state. The narrow interpretation of the a quo Law negates other forms of active, varied and dynamic participation from the community which should be strengthened and facilitated through the a quo Law.
  2. The provisions of Article 29 of the PSDN Law are contrary to human rights because it does not explain the limits on how, when and where Komcad is prepared and used.
  3. The starting point of weakness in the implementation of the PSDN Law is the potential for human rights violations because there are real efforts by the state to cover up the rights of citizens to know the mechanisms, procedures and procedures for the preparation of Reserve Components and Supporting Components. Human rights must be understood by the state as a standard of state behavior in both normal and emergency relationships. The PSDN Law uses loose standards of human rights behavior on the existence of Komcad.
  4. The application of military law to Komcad (Article 46 of the PSDN Law) is paradoxical, overlaps, and has the potential to conflict with criminal law norms and military crimes in its implementation. Potential human rights violations occur because they ignore the principles of a free, prompt and impartial trial.
  5. The PSDN Law mixing combatant and civilian status in criminal procedural law will create confusion in law enforcement efforts. Indonesia has a bitter experience, the Timor Leste Human Rights Court in the involvement of civilians in conflict.

The Petitioners who have joined the Advocacy Team for Security Sector Reform consisting of Imparsial, Elsam, KontraS, Public Virtue Institute, PBHI Nasional SETARA Institute, LBH Jakarta, LBH Pers, and BEM Universitas Indonesia request the Constitutional Court to review Article 4 paragraph (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 which essentially asks the Court to examine the constitutionality of the formation of Reserve Components (Komcad) in the PSDN Law against the 1945 Constitution of the Republic of Indonesia.

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