The Legislature and Military Legislation

Intense bargaining also characterized two major pieces of military reform legislation enacted by the DPR during the Megawati presidency (2001–2004). Law No. 3/2002, in tandem with Law No. 2/2002, determined the roles of the National Police and the Armed Forces after their separation in 1999. The second major legislation was Military Law No. 34/2004 which regulated internal organization and functions of the military (see also the contribution of Leonard Sebastian & Iisgindarsah in this volume). Both laws were surrounded by much controversy. The TNI used them in an attempt to regain some of the ground it had given up with the Paradigma Baru. In the end, however, the TNI achieved its objectives only partially. Both laws represented compromises between the armed forces and the legislature. Crucial for achieving these compromises which, on the one hand, retained the special role of the armed forces in the country’s political system, but on the other, also markedly strengthened civilian supremacy, was an emerging epistemic community consisting of civilian defense experts, who played a moderating role in the negotiations (see also the contribution of Rizal Sukma in this volume).

Law No 3/2002 specified the defense functions of the TNI. The law concluded lengthy negotiations which had already started during the Habibie presidency.

A first bill, drafted by the TNI and submitted to the legislature in 1999, had to be withdrawn due to fierce public opposition. The re-drafting of the bill was more

9 The Jakarta Post, 11 October 2001, 11 February 2004, 24 June 2004, 12 July 2004, 10 January 2007. 10 The Jakarta Post, 26 December 2002. 11 The Jakarta Post, 11 August 2002.

6 The Legislature and Military Reform in Indonesia 131

participatory and apart from the defense ministry and TNI headquarters, also included civilian experts from the academe and civil society. 12 The DPR eventually succeeded in inserting into the law a clause empowering the legislature to endorse the presidential nominee for the post of TNI chief-of-staff. The law also specified eligibility for the TNI top post, in an attempt to de-politicize military promotion procedures. Other provisions were of a more cosmetic nature such as renaming the TNI defense doctrine of “Total People’s Defense and Security System” (Sishankamrata) to “Total Defense” (Sishanta) (Hafidz, 2006 , p. 199). The predom- inance of the army in the TNI, and by implication, the army’s territorial structure, was in no way affected by this change. The law also confirmed MPR Decree VII/2000 which had vested in the TNI “functions other than war.” This means that the TNI still has a role in internal security such as in the suppression of separatism and terrorism. Fortunately, though, the DPR was able to stipulate that troop deployments for security operations must be endorsed by the DPR.

But the DPR failed to redefine the relationship between TNI headquarters and the department of defense. While the law stated that “in terms of policy and defense strategy including administration support, the TNI is under the coordination of the Department of Defense,” it did not explain the meaning of “under coordination” and the way the coordination should be carried out (Anggoro, 2007 , p. 14). Neither did it provide a timetable for integration of the TNI under the Department of Defense. The TNI headquarters thus remained under the direct authority of the president, specifying an equal relationship, not a hierarchical one in which the TNI is subordinated to the Defense Minister. With the TNI chief participating in cabinet meetings, the TNI still wields considerable political influence, even though it had officially withdrawn from active politics.

Partly overlapping with Law No. 3/2002, Law No. 34/2004 became the corner- stone of military reform legislation. It not only further specified the functions of the TNI, but also regulated its internal organization. It was drafted by a working group established by the Department of Defense consisting of officials from the ministry, representatives of TNI headquarters and the academe. Negotiations in the drafting group dragged on for more than 2 years and were characterized by serious disagreements. Complicating the negotiations was the fact that, over time, the TNI replaced its drafters with more conservative representatives who increasingly

dominated the drafting process. 13 Much of the draft legislation thus reflected the views of the armed forces. Particular controversy surrounded Article 19 which became known as “pasal kudeta” or coup article. The article would have given the armed forces widespread discretion in handling emergencies and internal security problems without notifying the president and the legislature. 14

12 Authors’ interview, 10 March 2008. 13 The Jakarta Post, 25 February 2003. 14 Ibid.

132 J. R€uland and M.-G. Manea The media and civil society organizations as well as many academics and

members of Komisi I of the DPR reacted critically after the content of the article was revealed to the press by a civilian member of the drafting team. The Jakarta Post, for instance, warned that “the bill, if approved, would contradict the amended 1945 Constitution, which stipulates that the president, in his or her capacity as TNI Supreme Commander, has the sole authority to declare war and order a military deployment to a war zone.” The newspaper also criticized the fact that the article runs contrary to Law No. 3/2002 on state defense, which clearly states that only the president has the power and responsibility to deploy TNI personnel, after securing

approval from the House. 15 Although the draft article received support from leading legislators such as Golkar chairman Akbar Tandjung and MPR chairman Amien Rais, in the end the TNI yielded to the strong public pressure and withdrew the unpopular draft article.

The legislature, with the assistance of civilian defense experts, was thus able to rid the bill of the most serious encroachments of the TNI on civilian supremacy. The law placed TNI under democratic core norms such as democracy, civilian supremacy, human rights, and national and international law. Troop deployments by the president and the use of force henceforth need to be approved by the DPR within 48 hours. The DPR also successfully thwarted attempts by the TNI to weaken parliamentary participation in the appointment of the TNI chief and to reinstate dwi fungsi through

a clause proposing that active military officers be allowed to occupy civilian posts in the bureaucracy. The compromise finally reached stated that active military officers may fill civilian posts that require a military capacity, without however qualifying what these posts are. The law also touched upon the hot potato of military businesses and provided for their transfer to the state by 2009, but left open how this is to be done (see also the contribution of Mietzner & Misal in this volume).

While the TNI failed to restore some of its pre-1998 prerogatives, it succeeded in maintaining the status quo in other crucial areas of military reform. Law No. 34/2004, for instance, did not abolish the territorial structure of the TNI. Nor did it explicitly place the TNI under the defense ministry, as proposed by then Coordinating Minister for Politics and Security, Susilo Bambang Yudhoyono. The law also retained the “functions other than war.” Although the law clarified this provision by enumerating several military responsibilities such as fighting terrorism, it perpetuated the blurred lines of responsibility for internal security.

The law thus failed to overcome existing ambiguities in civil-military relations. Some of the law’s shortcomings, however, must also be attributed to the short period of parliamentary deliberation. The government, after lengthy debates, submitted the bill to the DPR for deliberation by end of July 2004, a few weeks before

the end of the legislative term. 16 The TNI was especially keen to see the bill passed by a legislature in which it still had leverage. Protection of the law by the

15 The Jakarta Post, 3 March 2003. 16 Asia Times, 28 July 2004.

6 The Legislature and Military Reform in Indonesia 133

TNI/Police faction, lack of time and the preoccupation of many outgoing legislators with their professional future explain why the treatment of the law in the DPR was criticized by many observers (Araf, 2007 , p. 24).

Even more ambiguous was the DPR’s role in human rights legislation. Interna- tional and domestic human rights organizations blamed the Indonesian military for many of the abuses committed during the New Order period and the transition to the Reform Era. In their view the armed forces were playing a facilitating and often even active role in the mass killings following the aborted September 30, 1965 coup. In the subsequent crackdown on the Partai Komunis Indonesia (PKI) at least 500,000 people were killed (Ricklefs, 1993 , p. 288). More than 100,000 were detained without trial or deported to prison camps on remote islands where they languished for 10 years or more (Ibid., p. 297). Military abuses were also concomitant in clashes with Muslim groups in Tanjung Priok, Jakarta (1984) and Talangsari, Lampung (1989), and the campaigns against separatists in Aceh, East Timor and Papua. Moreover, military units were involved in the kidnapping of dissidents, the shooting of student demonstrators at Trisakti University, the Jakarta riots between 14 and 17 May 1998, and the Semanggi I and II incidents during the Habibie presidency.

It thus became one of the main corporate interests of the military to prevent the prosecution of officers involved in human rights violations. In the DPR the military faction and Golkar strongly opposed any legislation that would allow pursuing human rights violations retroactively, citing international law principles opposing retroactive trials. But as the Indonesian government was under intense international observation to bring to justice the perpetrators of the human rights abuses prior to, during and after the East Timor independence referendum in August 1999, and also under pressure from domestic human rights groups demanding a human rights law with teeth, the DPR eventually passed legislation which would allow the prosecution of former human rights violations. Human Rights Law No. 26/2000 left it to the government and parliament to authorize the investigation of past human rights violations through the establishment of human rights courts (Hadiprayitno, 2009 , p. 7). But in an attempt to counter this legislative breakthrough, the military successfully managed in the MPR session of August 2000 to insert a clause into the constitution which defined as human right “not to be tried by a law with retrospective effect” (Amended 1945 Constitution, Art. 28I). As the constitution has precedence over other laws, this move has severely constrained the possibility for investigation and trials of past human rights abuses by the military. Therefore, cases of human rights violations committed before the enactment of the Human Rights Law No. 26/2000 fall under the jurisdiction of ad hoc courts, while those taking place thereafter will

be prosecuted by special human rights courts. The latter have jurisdiction only over gross violations of human rights such as genocide or crimes against humanity. Moreover, according to the decision of the Constitutional Court No. 18/PUU-V/ 2007, the recourse to the prosecution of cases of human rights violations by ad hoc courts has to be made upon recommendation of the National Commission on Human Rights (Komnas HAM) and the Attorney General. Ad hoc human rights courts, however, can only be set up by a presidential decree following a recommendation of the DPR (Hadiprayitno, 2009 ).

134 J. R€uland and M.-G. Manea The prosecution of former human rights violations was further aggravated by the

DPR’s adoption of a two track strategy to deal with past human rights abuses. The DPR distinguished between “recent” cases that were to be handled through ad hoc tribunals and “past cases” to be addressed through a Truth and Reconciliation Commission (KKR). A subsequent law on KKR was passed in 2004 which allowed the establishment of such a Commission 6 months after passing the law (Hafidz, 2006 , p. 202). It is quite likely that both sides used the human rights card as a quid pro quo in the bargaining over other issues of military legislation, but the extent to which they did so is difficult to establish. Debates in the DPR about a human rights law under close international observation and domestic pressure may well have persuaded the military to stick to its MPR presence, especially as it successfully utilized the MPR to block the retroactivity clause in human rights cases.

The Legislature and Military Legislation