TNI Law Revision Challenged to Constitutional Court, How Big is the Chance of Formal Test Being Granted?

A day after the revision of the TNI Law was approved by the DPR to be enacted into law, a number of students immediately filed a lawsuit against it with the Constitutional Court or MK. How likely is it that MK will grant the formal review of the revised TNI Law? Will MK observe and consider how the revision of the TNI Law has intensified the political situation with actions by academics and students taking to the streets?

Many parties have warned about the "dangers" of revising the TNI Law. However, the House of Representatives and the government still approved the enactment of the TNI Bill into law during the House of Representatives Plenary Session in Jakarta, Thursday (20/3/2025).

While reporting on the work of Commission I of the House of Representatives (DPR) together with the government in revising the Military Law (UU TNI) during a plenary session, the Chairman of Commission I DPR, Utut Adianto, assured that the discussion process had fulfilled formal legal aspects. It began with a letter from President Prabowo Subianto regarding the appointment of government representatives to discuss the Military Bill (RUU TNI) on February 18. Subsequently, Commission I DPR was assigned to deliberate on it with the government.

During the discussion process, Commission I of the DPR also claimed to have absorbed input from stakeholders and involved the active participation of the community as part of fulfilling the principle of meaningful participation in the formation of laws as mandated by the Constitutional Court (MK) ruling.

Based on Utut's report, Puan requested the approval of all DPR members present at the plenary session to endorse the TNI Bill to be enacted into law. No objections were raised, even though the PDI-P politician asked for approval three times during the session.

After being "approved" in the House of Representatives, Minister of Law Supratman Andi Agtas, when met at the Presidential Palace Complex in Jakarta on Friday (21/3/2025), confirmed that President Prabowo would ratify the Military Bill to become law.

However, before the approval was granted by the President, the public had already swiftly moved to reject the product of the DPR and the government through constitutional channels. Seven students from the Faculty of Law at the University of Indonesia (FH UI) immediately filed a formal judicial review lawsuit against the TNI Law at the Constitutional Court on Friday.

They are Muhammad Alif Ramadhan, Nicholas Indra Cyrill Kataren, Mohammad Syaddad Sumartadinata, M Nurroby Fatih, Namoradiarta Siahaan, Kelvin Oktariano, R Yuniar A Alpandi. The formal test application was registered by Abu Rizal Biladina as attorney. Also acting as attorneys are Muhammad and Keanu Leandro P Rasyah, all three are also FHUI students.

The Constitutional Court was asked to cancel the norms in the revised articles and revive the articles that had been amended by the government and the DPR. There are at least three points revised in the TNI Law, namely related to the position of the TNI institution, the age of soldiers, and the placement of TNI members in civilian positions.

The students argued that the formation of the TNI Law violated the principles stipulated in Law Number 13 of 2022 concerning the Formation of Legislation, including the principle of openness. This calls into question the validity and/or legitimacy of the TNI Law.

The principle of openness is stated in Article 96 Paragraph (1) of Law No. 13/2022 which states, "The public has the right to provide input verbally and/or in writing at every stage of the formation of legislation". The same law also clearly states in Article 96 Paragraph (4), so that the public is made easier in accessing every manuscript and draft regulation.

In fact, as a derivative of the provision, Article 7 Letter b of DPR Regulation Number 1 of 2020 emphasizes the DPR's duties in compiling, discussing, and disseminating the Bill. Therefore, based on the two provisions, the Bill must be disseminated and easily accessed by the public.

However, according to Rizal, the DPR has failed as an institution entrusted with disseminating access to academic manuscript data and bills, especially related to the revision of the TNI Law. This is proven by the inaccessibility of the official draft of the TNI Bill by the public from the beginning of the discussion until its ratification in the DPR Plenary Meeting.

What are the chances that the Constitutional Court will grant the formal review request?

Two constitutional law experts from different universities who were asked for their views were optimistic that the formal test would be granted by the Constitutional Court. Of course, this would happen if the Constitutional Court was consistent with its previous decision, specifically related to decision number 91/PUU-XVIII/2020 concerning the formal test of the Job Creation Law, which was read on November 25, 2021.

"The potential for it to be accepted is very high, especially since the Constitutional Court has emphasized it in decision 91/2020. The decision emphasizes strengthening meaningful community involvement and participation or meaningfulfull participation," said Allan FG Wardhana, a lecturer in constitutional law at the Faculty of Law, Islamic University of Indonesia, when contacted on Saturday (22/3/2022).

The same thing was also expressed by a lecturer in constitutional law at the Faculty of Law, Andalas University, Feri Amsari. He said that if the Constitutional Court is consistent with the decision of the formal test of the Job Creation Law, it is certain that the revised TNI Law will be revoked. Or, at least it is stated that the process of its formation must fulfill meaningful participation as desired by the Constitutional Court.

In decision No. 91/2020, the Constitutional Court stated that the Job Creation Law was formally flawed. The process of forming Law No. 11/2020 concerning Job Creation is contrary to the 1945 Constitution of the Republic of Indonesia and does not have legally binding force conditionally as long as it is not interpreted as "no improvements are made within two years since the decision was pronounced".

The Job Creation Law remains in effect until improvements are made to its formation, and orders the DPR and the government to make improvements within a period of two years.

The decision, which became a landmark in the formal review, emphasized the importance of public participation in the process of forming laws, which must be fulfilled.

In point 3.17.8 on page 392 of decision 91/2020, the Constitutional Court stated that the opportunity for the public to participate in the formation of laws is actually also a fulfillment of the constitutional mandate which places the principle of people's sovereignty as one of the main pillars of the state as stated in Article 1 paragraph (2) of the 1945 NRI Constitution.

Furthermore, said the Constitutional Court, public participation is guaranteed as a constitutional right based on Article 27 paragraph (1) and Article 28C paragraph (2) of the 1945 Constitution, which provides opportunities for citizens to participate in government and build society, the nation and the state.

"If the formation of a law is carried out with a process and mechanism that actually closes off or distances the involvement of public participation to participate in discussing and debating its contents, then it can be said that the formation of the law violates the principle of people sovereignty," said the Constitutional Court in its considerations.

In this decision, the Constitutional Court also introduced the term meaningful participation or meaningfulfull participation in order to create genuine public participation and involvement.

The Constitutional Court also provides three prerequisites for meaningful public participation, namely the right to have one's opinion heard (right to be heard), the right to have one's opinion considered (right to be considered), and the right to receive an explanation or answer to the opinion given (right to be explained).

In addition to the Job Creation Law, the Constitutional Court has also granted a formal review of Law Number 32 of 2024 concerning the Conservation of Biological Natural Resources and Ecosystems (KSDHE).

The formal review application was filed by the Indigenous Peoples Alliance of the Archipelago (AMAN), the Indonesian Environmental Forum Foundation (Walhi) and others. The Constitutional Court granted the provisional application and issued a decision to postpone the formal review hearing until the election dispute hearing. The Constitutional Court also ordered the government or other parties to issue new regulations related to the KSDHE Law.

According to Allan FG Wardhana, the decision No. 91/2020 was then followed up in Law No. 13/2022 concerning the Formation of Legislation. Article 96 of Law No. 13/2022 regulates this matter.

"What it means is that the Constitutional Court is very concerned and wants to continue to strengthen public participation in the formation of legislation. Although in history, only one law has ever been formally revoked, namely the Job Creation Law, it does not mean that formal testing is difficult, let alone has no chance of being granted," said Allan.

According to him, the opposite is true, from the decision No. 91/2020 which was then followed up with Law No. 13/2022, it became a historical point that the formal test has a high potential to be granted. Moreover, if the formation of the law is clearly without public participation or there is public participation but it is not meaningful.

The question is, does the Constitutional Court dare to be consistent with its previous decision and then annul the revised TNI Law?

Regarding this, Allan believes that the Constitutional Court should be brave. "Especially if this can be seen by the public, there are widespread protests and there are videos of discussions being held behind closed doors. Of course this must be considered," said Allan.

In addition, the academic text of the TNI Bill was also seen as not comprehensive in explaining the changes to the articles in the TNI Law and not in accordance with the rules for forming legislation. "It seems like just a formality, what's important is that there is an academic text," Allan concluded.

However, the ball remains in the Constitutional Court's court. The fate of the revised TNI Law will be determined in the next few months.