Why military justice reform is pressing | Law

Why military justice reform is pressing

OPINION: Bhatara Ibnu Reza, The Jakarta Post, 5 October 2016.

For the past two months the Indonesian Military (TNI) has promoted a number of officers who were involved in past crimes to key positions in strategic state institutions. In August, former members of the Army’s “Tim Mawar” (Rose Team) responsible for the forced disappearances of 13 pro-democracy activists in 1997 to 1998, were assigned to the Defense Ministry, State Intelligence Agency (BIN) and National Counterterrorism Agency (BNPT) with their military rank increased to one-star general. 

In September, TNI chief Gen. Gatot Nurmantyo appointed Maj. Gen. Hartomo as the TNI’s Strategic Intelligence Agency (BAIS) head, regardless of his conviction for killing pro-independence Papua leader Theys Hiyo Eluay in 2003. 

It seems the TNI has found difficulties in putting the right officers, whose track records are free from criminal and ethical offenses, in the right places. The recent promotions shows not only the TNI’s reluctance to acknowledge the crimes committed within its ranks, but also its condoning and support for the crimes they perpetrated as an act of honor. 

It is not the first time that the TNI has promoted officers complicit in past abuses without explaining why. In fact, there was no clear legal argument put forward by the TNI to justify the most recent promotions. Ideally, the TNI could use excerpts of court verdicts so that the public can know the legal reasons behind the promotions. The ultimate argument is these officers may have served their sentences or have had their convictions repealed by the High Court or Supreme Court 

 The latest promotions, however, have raised concerns anew about impunity practiced in Indonesia’s military justice system. 

Many consider the military court part of the myriad problems hampering law enforcement in the country. Despite public scrutiny as in the cases of pro-democracy activists’ abductions and Theys Eluay’s murder, the military court has served as a safe haven for soldiers who have committed crimes. The military justice system is also notorious for a lack, if not an absence, of transparency.

The military court indeed found the officers guilty and stripped them off their military rankings and posts. Without public knowledge of the cases’ course, however, they suddenly emerged in the promotion lists. Most likely TNI leaders consider these officers worth developing given their capacity. 

When the House of Representatives started a debate on amendment to Law No. 31/1997 on Military Tribunal in 2005, the Defense Ministry and TNI headquarters opposed any revision. Their source of the dispute was the jurisdiction of the court, which the draft revision restricted to crimes stipulated in the Military Penal Code. Then president Susilo Bambang Yudhoyono supported the provision, but deliberation deadlocked and since 2009, the situation has gone back to square one. 

The TNI also recognizes a disciplinary council, whose duty is to uphold the honor of the corps and deal with misconducts perpetrated by soldiers. The misconducts are however beyond the reach of the Criminal Code and other regulations. The council in practice hears criminal offenses that involve soldiers and keep them from the national justice system. The internal mechanism breeds impunity and discourages impartiality.

In the abduction case of pro-democracy activists in 1997 to 1998 the military disciplinary council found then Army Strategic Reserve Command (Kostrad) chief Lt. Gen. Prabowo Subianto guilty and discharged him from the post, but he has never faced trial. Interestingly his subordinates, Muchdi PR and Chairawan, later won promotion to the deputy director post at the BIN.

Indonesia perhaps is the only country where soldiers are tried based on their status and not the crimes they allegedly commit. No wonder, for an extraordinary crime like corruption, as long as they are military members, the jurisdiction that tries them is precisely in the hands of the Military Court. 

The only way to bring military officers who are accused of committing graft to the civilian court is through a “connectivity” mechanism. This is possible only if a military officer collaborates with a civilian in perpetrating the crime. Therefore, they are subject to a joint military-civilian investigation. Then TNI chief Gen. Moeldoko once warned the Corruption Eradication Commission (KPK) against investigating military officers allegedly involved in graft unless there was a connectivity clause. 

The long-overdue reform of military justice system demonstrates the major regression in security sector reform in general, which kicked off following the fall of New Order regime in 1998. From the beginning, the military justice system has been excluded from efforts to reform the security sector. 

There was some momentum for resumption of the Military Tribunal Law amendment after 11 commandos went on trial for killing prisoners in Yogyakarta in 2013. But rather than restarting the debate on the Military Tribunal Law, the government preferred amending the Military Discipline Law. 

The government of President Joko Widodo should take immediate actions to reinstate the military justice reform. It can propose a new bill or start over the draft revision of the 1997 Military Tribunal Law. Military justice system reform is imperative under Article 27(1) and 28(D)(1) of the 1945 Constitution’s Second Amendment. 

It is a must for the government to engage the House to share this burden. As part of the amendment human rights principles should be acknowledged as a key value that will prevent soldiers from violating human rights and to protect their fundamental rights. Furthermore, the amendment will end the chain of impunity.

On the part of the TNI, which celebrates its 71st anniversary today, its defiance of military justice reform will sacrifice its glorious history and its pride as the national defense force. 

View the article here.