Excesses of TNI Law Revision, Law on Formation of Legislation Also Challenged to the Constitutional Court

JAKARTA, KOMPAS – The discussion of the Draft Law on the Indonesian National Armed Forces or RUU TNI, which has been protested by many groups, has inspired a number of undergraduate and postgraduate law students from several universities to examine the Law on the Formation of Legislation, particularly regarding public participation.

The Constitutional Court (MK) is requested to require the House of Representatives (DPR) and the government to explain to the public the results of the discussions on the input that has been provided regarding a draft law (RUU).

The students tested the provisions of Article 96 Paragraph (8) of Law Number 13 of 2022 concerning the Formation of Legislation or the P3 Law which reads, "The makers of legislation can explain to the public the results of the discussion of public input as referred to in paragraph (1)."

The testing was conducted by students from the Faculty of Law at Universitas Indonesia, Universitas Gadjah Mada, and Universitas Islam Indonesia. They are Muhammad Syafiq Wafi, M. Hilmi Miftahzen Reza, Abdullah Widy Asshidiq, Laksmi Dava Diandra Kirana, Faradita Raihani, and Fifki Yustisio.

The application for a judicial review was submitted on March 25, 2025. However, until now, the Constitutional Court has not registered it in the electronic Constitutional Case Registration Book.

The provisions of Article 96 Paragraph (8) of the P3 Law are considered to violate the constitution because they result in legal uncertainty guaranteed by Article 28D Paragraph (1) of the 1945 Constitution and the guarantee to obtain information as regulated in Article 28F of the 1945 Constitution.

Specifically, the petitioner feels disadvantaged due to the presence of the term "dapat" in providing explanations related to the draft law being discussed in parliament. Referring to the Great Dictionary of the Indonesian Language, the word "dapat" means "capable," "able," "can," "may," and "possible." Based on this, the word "dapat" does not have a definitive meaning.

In the context of the article, the meaning of the phrase "may" becomes the lawmakers' "might" in explaining the results of the discussion to the public. Alternatively, the lawmakers "are not required" to explain the results of the discussion to the public, or "are allowed" to explain the results of the discussion to the public.

"The various meanings of the word 'dapat' create legal uncertainty in the application of legislative formation, which has implications that harm citizens due to the non-transparent process by lawmakers," said the petitioner as quoted from the application document, Friday (28/3/2025).

The phrase "can" in Article 96 Paragraph (8) of the P3 Law has a very optional meaning so that it does not have legal certainty and justice, especially regarding the mechanism used in explaining to the public the results of the discussion of community input on a bill. The formulation of the article is very ambiguous, so that in its application it threatens the rights of citizens who should receive an explanation of a bill.

The applicants also submitted a video of the raid on the House of Representatives Commission I meeting discussing the Indonesian National Armed Forces Bill at the Fairmont Hotel, Jakarta, by civil society groups, some time ago which then became a hot legal issue among the public. The applicants considered that the action occurred because civil society was frustrated and then took action against the discussion of the TNI Bill which was carried out quickly. In fact, the substance of the Bill has an impact on democratic life.

In that context, the applicant assessed that the phrase "can" in Article 96 Paragraph (8) of the P3 Law which does not have legal certainty has implications for reducing active community participation. The approval of the TNI Bill into law by the DPR has also made the community view that their involvement in discussing the Bill will not have an impact on the final result.

By “requiring” lawmakers to explain the results of a bill’s discussion to the public, in the eyes of the applicants, it will realize Pancasila and deliberative democracy, not just representative democracy. In substance, it will also prevent problematic legislative products due to the legislators’ short-term interests and not targeting the root of the problem.

"Without public participation, democracy is just an empty shell or procedural democracy. Civil society is frustrated because the inputs that have been given in many legislative processes have not received a good response," the applicant said.

Even if the input is not accepted, the legislator should respond by explaining why the input was not used. This is a form of meaningful participation.

Explaining to the public about the results of the discussion of a bill is also an effort to fulfill the right to communicate and obtain information as guaranteed by Article 28F of the 1945 Constitution. The actions that occurred against the TNI Bill occurred because the lawmakers did not apply the principle of openness of information in the legislative process.

In addition to the judicial review of the P3 Law, a number of students from the Faculty of Law, University of Indonesia, also filed a formal review request for the revision of the TNI Law to the Constitutional Court. The reason is, the revision process of the TNI Law is considered not to meet the provisions for the formation of the 1945 Constitution because it violates the principle of openness which is the basis for parties to participate in the creation of a regulation. This makes the validity and/or legitimacy of the TNI Law questionable.

They requested that the Constitutional Court declare the revision of the TNI Law unconstitutional. Regarding the provisions of the TNI Law norms that have been amended, deleted, and/or declared to have no binding legal force, the Constitutional Court was requested to declare those articles valid again.

Responding to public criticism that the discussion of the TNI Bill was carried out quickly and with minimal public participation, which has now resulted in a lawsuit to the Constitutional Court, the government and the DPR have previously dismissed the criticism. The government and DPR have repeatedly stated that the TNI Bill has been discussed since last year or at the end of the administration of the 7th President of the Republic of Indonesia, Joko Widodo.

They also denied not involving the public in the discussion. When reporting on the work of Commission I of the DPR together with the government in revising the TNI Law, at the DPR Plenary Meeting, Thursday (3/20/2025), Chairman of Commission I of the DPR Utut Adianto claimed to have absorbed input from stakeholders and involved the active role of the community as part of fulfilling the principle of meaningful participation in the formation of laws as mandated by the Constitutional Court decision.