PSHK: Andrie Yunus Case is a General Criminal Case, Not Military

TNI Deputy Chief of Staff, Major General TNI Aulia Dwi Nasrullah (center) accompanied by the Commander of the Military Police Center, Major General TNI Yusri Nuryanto (left)/DOK ANTARA FOTO/ASPRILLA DWI ADHA

JAKARTA - The Indonesian Center for Legal and Policy Studies (PSHK) assesses the case of alleged attempted premeditated murder against KontraS Deputy Coordinator Andrie Yunus as a general criminal offense that should be tried in a public trial.

The Executive Director of PSHK Indonesia, Rizky Argama, said that the watering of hard water to a human rights activist (HAM) in a public space was not a criminal act related to the functions and duties of the military, so that he should not be tried in a military court.

"There is no element of military discipline, violation of service obligations, or crime that originates from military functions and duties," said Rizky as quoted by ANTARA, Thursday, March 26.

Thus, he said, the case was entirely a general criminal act committed by an individual and happened to be a member of the Indonesian National Army (TNI).

Rizky asked the President to ensure that all legal proceedings in the Andrie case, including prosecution and trial, are handed over to and fully implemented by the public judicial institutions under the independent judiciary.

According to him, the principle of functional jurisdiction states that the determination of the forum for military members should be determined by the nature of the criminal act committed, not solely by the status of the perpetrator as an active military member.

He said the doctrine of functional jurisdiction had developed and was widely accepted in international law and practice in other countries.

The Inter-American Court of Human Rights (IACHR Court), for example, he continued, has confirmed that military jurisdiction should not be extended to criminal acts that have no direct connection with military functions.

The United Nations Human Rights Committee (UN) also emphasized in General Comment Number 32 (paragraph 22), that the jurisdiction of military courts must be strictly limited and not used for general criminal cases, especially those involving civilians.

"The watering of hard water on human rights activists is clearly not one of them," he said.

In addition, he said that the construction of positive Indonesian law actually also leads to the same principle, although it has not been implemented.

He said Article 3 paragraph (4) of the Decree of the People's Consultative Assembly (MPR) of the Republic of Indonesia Number VII/MPR/2000 stipulates that TNI soldiers are subject to public prosecution for violations of general criminal law.

Meanwhile, Article 65 paragraph (2) of Law Number 34 of 2004 concerning the TNI is in line with and regulates the same thing.

Therefore, Rizky argues that both policies adopt the principle of functional jurisdiction of the environmental court determined based on the type of criminal offense, not the status of the perpetrator.

Previously, four members of the TNI Strategic Intelligence Agency (Bais), namely Captain TNI NDP, Lieutenant One (Lettu) TNI SL, Lettu TNI BHW, and Sergeant Two TNI ES have been designated as suspects in the spraying of hard water against Andrie.

Until now, the four suspected perpetrators are still in the process of being examined by the TNI internal investigation team. As a result of the investigation of the case, the position of Head of BAIS TNI held by Lieutenant General TNI Yudi Abrimantyo has been handed over.