Indications Of Abusive Law Making In The Revision Of The TNI Law

Illustration by Luthfiah VOI

JAKARTA Revision of Law Number 34 of 2004 concerning the TNI immediately received public attention. In the midst of concerns about the return of Dwi TNI Functions, the DPR RI and the Government actually accelerated the discussion of the revision of the TNI Law so that it could be ratified before the upcoming Eid al-Fitr.

The chairman of the Indonesian House of Representatives, Puan Maharani, revealed that the revision of the TNI Law was actually only focused on three articles, namely the position of the TNI, the extension of the retirement age, to the addition of civilian positions that could be filled by active TNI members. The three articles have also been discussed and received input from the public so that no violations have occurred in the process of drafting the bill.

"There is no such thing that then violates, which is suspected of causing harm to things that in the future will be injured," he said, Monday, March 17, 2025.

Puan ensured that the TNI function Dwi system would not bounce back through the revision of the TNI Law as emphasized by the Panja of Commission I of the DPR RI and the government. So, please look at the results of the panja. Earlier, my friends have also received the results of the panja that we will decide together. It is clear that three articles have even been revised which then states what is revised. It does not change things which are then suspected that will be in its decision," she added.

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The chairman of the Working Committee for the TNI Bill, Utut Adianto added, his party together with the government only discussed three main clusters, namely the position of the Ministry of Defense and the TNI, the new scope where the TNI can remain active, and the age of soldiers. He explained that all clusters in the TNI Bill were discussed one by one, article by article carefully.

Based on records, there are at least four crucial articles in the TNI Bill that are considered controversial. The articles are divided into three clusters, ranging from the retirement age limit, the placement of the TNI in the civilian realm, and the role of the TNI outside military operations. First, Article 7 paragraph 2 related to non-military operations, where in the discussion results as of Saturday, March 15, 2025, the government proposed the addition of TNI military duties outside the war. In the previous law, there were 14 military tasks of the TNI outside the war.

In the latest bill, the government proposes three new tasks, namely the TNI has the task of assisting and tackling cyber threats, the TNI can help and save Indonesian citizens and national interests abroad and the TNI has the authority to help deal with narcotics abuse issues.

Second, Article 47 regarding the placement of the TNI in civilian agencies, where the government proposes additional civilian positions that can be occupied by the TNI from 10 to 16. There are additional roles of the TNI in sea security (Bakamla), disaster management (BNPB), handling terrorism (BNPT), marine and fisheries, Attorney General's Office, and border management (BNPP).

The soldiers who occupy certain positions as referred to in paragraph (1) are based on the request of the ministry/institution and comply with the administrative provisions that apply within the ministry and institution, "said the regulation in Article 47 paragraph (3). Meanwhile, outside of that position, active soldiers can occupy other civilian positions after resigning from the army service.

Third, Article 53 related to the retirement age limit, where the TNI Bill changes the retirement age limit based on the rank. In the current Law, the retirement age limit is divided into two clusters, namely 58 for officers and 53 for enlisted and non-commissioned officers. Meanwhile, in the TNI Bill based on the manuscript as of March 15, the retirement age limit is re-detailed based on the rank with the following provisions.

NCO and Tamtama are at most 55 (fifty-five) years old; officers up to the rank of Colonel are 58 (fifty-eight) years high; 1 (one) star high officers at most 60 (sixty) years; 2 (two) star high officers at most 61 (sixty-one) years; and 3 (three) high-ranking officers at most 62 (sixty-two).

Apart from that, there are several other exceptions related to service age. First, specifically for soldiers who occupy functional positions, they can carry out a soldier service period stipulated under statutory regulations. Then, for high-ranking 4 (four) or general star officers, the maximum retirement age limit is 63 years old and can be extended a maximum of two times according to their needs and stipulated by the President's decision.

Member of the Working Committee for the TNI Bill, TB Hasanuddin said that the number of ministries and institutions that could be filled by the TNI had increased from 15 to 16 institutions. The 16 institutions or ministries that can be occupied by the active TNI are as follows.

1. Office of Polkam Division2. State Defense3. Presidential Military Secretary4. State Intelligence5. State Password6. Lemhannas7. National Defense Council 8. National SAR9. National Narcotics10. Supreme Court11. BNPB12. BNPT13. Marine Security14. AGO 15. Maritime Affairs and Fisheries16. National Border Management Agency (BNPP).

Defense Minister Sjafrie Sjamsoeddin also acknowledged that there are four main points to the change in the TNI Bill that the government has submitted to the DPR. First, strengthening and modernizing defense equipment. Second, clarifying the limits on the placement of the TNI in non-military duties in civilian institutions. Third, improving the welfare of soldiers. Finally, regulating the retirement age limit of the TNI. But the revision will only target three articles. Each article 3 regarding the position of the TNI, Article 47 regarding the placement of the TNI in civilian institutions, and Article 53 related to retirement," he said.

Meanwhile, Professor of Constitutional Law at the Faculty of Unpad Law, Susi Harijanti, assessed that the discussion on the revision of the TNI Law was a form of persecution of law making or the practice of autocratic legalism. According to him, the practice of drafting such laws must be fought because basically the constitution regulates sovereignty is in the hands of the people, not politicians.

He explained that there were several main reasons for the revision of the TNI Law to be rejected. First, the procedure for drafting and discussing the TNI Bill does not show a democratic law is increasing, but the opposite is an act of increasing law. The preparation of the TNI Bill is absent from the principle of need or need, only accommodating the interests of certain groups.

Second, the consideration of the TNI Bill as stated in the problem inventory list (DIM) offered by the government, said that the TNI was built and developed professionally according to the country's political interests referring to democracy, civil supremacy, human rights, national and international law. But in fact, these various principles are not in the body trunk of the TNI Bill.

For example, Article 7 of the TNI Bill regulates the task of assistance that can be carried out by the TNI, such as military operations other than war (OMSP) carried out on the basis of state policies and political decisions, further regulated through Government Regulations (PP) or Presidential Regulations (Perpres).

"The legal question is, is it appropriate for the PP to regulate legal politics and be declared a state political decision? To what extent does the task of assistance not interfere with the functions of other institutions and how to control it? What happens in Aceh and Papua? Everything is wrapped up in the task of assistance. The task of this TNI has the potential to damage the joints of state and government," said Susi.

He emphasized that in terms of constitutional law, OMSP arrangements through PP and Perpres raise uncertainty. This is because the TNI Bill provides extraordinary discretion to the government or the president to regulate the legal basis but not based on the interests of the people.

Article 47 of the TNI Bill in terms of the military occupying civilian office is also considered not to reflect the civilian supremacy as the consideration of weighing. Article 53 which increases the retirement age limit is not clear the reason. Even for 4-star officers, the retirement age limit is based on the President's policy, and officers in functional positions can reach the age of 65 years. "Why do 4-star officers retire based on the President's policy? Where are the equations and legal certainty?" Susi added.