Final Offer from Senayan
The lobbying team was formed on Wednesday last week after deliberations on the Draft Law on Revisions to the Law on Military Justice were deadlocked. The deadlock occurred in mid-February after the committee and government representatives failed to reach an agreement over two issues. First, Article 9 on the jurisdiction of military courts and second, Articles 198-203 on contextual jurisdiction.
From the start, the committee and the government were aware that deliberations over the two issues would be difficult. Because of this, during a meeting at the beginning of February the two sides agreed to go straight to the critical articles. “The hope was that if these issues were settled, the other 300 or so remaining articles would follow soon after,” said a committee member.
The government proposed that the substance of Article 9 remain the same as Law No. 31/1997 (the Law on Military Justice), which says that all crimes committed by military officers would be tried in a military court. It turned out that the government also wanted to keep the contextual articles on the investigation process and hearing of cases that involve military and civil law enforcement officers.
At a meeting in early February, all the factions in the House of Representatives (DPR) rejected the government’s proposal. In the meeting that followed, it was the government’s turn to reject the DPR members’ proposal. The deliberations came to a dead end. “[After] only two meetings, it was stuck,” said Usamah Alhadar, a committee member from the United Development Party (PPP) faction.
Defense Minister Juwono Sudarsono-the government representative at the meetings-declared that the government would start lobbying to resolve the problem. “We will lobby the DPR leaders,” said Juwono. But DPR member Andi Matalatta immediately responded by saying that the government could not do this. “This is the Special Committee’s authority,” he said.
In the midst of this deadlock, in mid-February Andreas requested further input from the factions. The result was that on Article 9 there were no changes in the factions’ position, meaning they were sticking with the DPR’s initial proposal. With regard to Articles 198-203, only the Democrat Party (PD) faction accepted the government’s proposal. But even that was with a number of provisos.
According to PD committee member F.X. Suwarno, the contextual stipulations still need to be applied on crimes by members of the military and civilians. On the question of the judges however, Suwarno said the Supreme Court had the right to determine this. “If this is not fulfilled, we too will disagree with the government’s proposal,” he said.
Committee member Nursjahbani Katjasungkana says that in the three weeks since the last meeting with the government, there has been no sign that the government is lobbying the DPR. Speaking with Tempo, the Director-General of Legislation at the Justice & Human Rights Department, Oka Mahendra, conceded that the government is waiting for the right time. “Lobbying also depends on both sides,” he said.
The government has reasons why TNI (Indonesian Military) members should not be tried in civil courts. According to Juwono, there are psychological constraints when civilians deal with military officers. Moreover, police and prosecutors are not regarded as being ready yet to take on cases of civil crimes committed by TNI officers. The DPR however does not accept these arguments. “It is because of this, [that they] must be made ready [to handle it],” said Andi.
Andreas also rejects the government’s assessment that police and prosecutors are unprepared to handle such cases. “At a meeting to hear opinions, police and prosecutors admitted to being ready if regulated by law,” said Andreas. Nevertheless said Andreas, the police and prosecutors conceded to the possibility that there would be some minor “shocks” during its initial implementation.
According to Nursjahbani, the revisions to the Law on Military Justice represent the fulfillment of a commitment to defense reform and creating a professional TNI. This commitment flows out of two People’s Consultative Assembly (MPR) decrees ratified in 2000, the MPR decree on the separation of the TNI and National Police and the MPR decree on the roles of the TNI and National Police.
Not only that, according to Nursjahbani the jurisdiction of military courts is already referred to in Article 65 of the Law on the TNI. It states there that, “soldiers shall submit to the authority of military courts in the case of criminal military legal violations and submit to the authority of civil courts in the case of civil criminal legal violations as regulated by law.”
Nursjahbani says that the revisions to the Law on Military Justice represent a package of reforms and the professionalization of the TNI. “After getting out of politics, getting out of business, now it’s the turn of the TNI to be asked to surrender the jurisdiction of its courts to civilians in the case of civil crimes,” he said. So, says Nursjahbani, the Law on Military Justice represents the final “pillar” in the process of military reform.
For Andreas, the question of the military courts’ jurisdiction is non-negotiable. If there is to be negotiation he says it should only be over the length of the period of transition. “The Special Committee can afford to tolerate a maximum transition [period] of three years,” said Andreas.
The head of the Indonesian Legal Aid Foundation, Munarman, hopes that the Special Committee-which was formed in June 2004-will not compromise on these two crucial issues. Munarman says that there are many who regard the military courts simply as institutions granting amnesty to members of the security forces when they commit crimes. “There have been a number of corruption cases involving the military, but it’s as if [they are] untouchable by the law,” he said.
Oka said that in the deliberations over the two issues the government and the DPR have already presented all their arguments. “The government is clear in its position, the DPR likewise, so it is not that there isn’t a solution.”
Oka revealed that there is an opening that could represent a compromise out of the crisis. The DPR’s proposal only says that military officers who commit crimes outside of the line of duty should be tried in civil courts. According to Oka, the proposal does not say who should investigate the case and present the charges in the civil courts. “So, there is a chance [for solution],” he said. —
Abdul Manan, Badriah, Ami Afriatni
DPR versus the government
Crucial articles in the debate between the DPR and the government:
Law 34/1997 on Military Justice
Article 9: Courts in the domain of the military jurisdiction have the authority to:
1. Try crimes committed by a person that at the time of committing the crime was:
a. a soldier;
b. based on law equivalent to a soldier; c. a member of a category or office or body that is equivalent to or regarded as a soldier based on law; d. a person not included in the category in paragraph a, b, and c but on the decision of the commander in chief and with the agreement of the Minister of Justice should be tried by a court within the domain of the military judicature.
Articles 198-203: Contextual examination procedures
Changes proposed by the DPR:
Courts in the domain of the military jurisdiction have the authority to: 1. Try military crimes that are committed by a person that at the time of committing the crime were: (from here on the same as Article 9 Law No. 34/1997-Ed.)
The Govt Position:
Courts in the domain of the military jurisdiction have the authority to: 1. Try crimes committed by a person that at that time of committing the crime were: (from here on the same as Article 9 Law No. 34/1997-Ed.)
DPR position on Article 198-203:
Govt position on Article 198-203:
Articles 198-2003: in principle, not significantly different from Law No. 34/1997 except for a change in the phrase “with the agreement of the Minister of Justice” to read “The head of the Supreme Court”. Stipulations on contextual judges would also be determined by the Supreme Court.
NOTES: The government proposal deletes the word “military” before the phrase “crime”. With this stipulation, all crimes committed by the military can be tried in a military court.
Support for the government’s proposal
On Article 9:
All of the factions rejected it (the Golkar Party faction, Indonesian Democratic Party of Struggle, United Development Party, Democrat Party, National Mandate Party, National Awakening Party, Justice & Prosperity Party, Democratic Pioneer Star Party and the Peace & Prosperity Party).
On Articles 198-203:
Only the Democrat Party accepted it although with preconditions.
Tempo Magazine No. 30/VI March 28 – April 03, 2006