Revision of the TNI Law, Strengthening or Weakening Democracy?

The revision of Law Number 34 of 2004 concerning the Indonesian National Army or the TNI Law, which is currently being discussed in the DPR, has sparked intense public discourse. In fact, it has even sparked rejection from civil society. The reason is, this policy change provides a legitimate basis for the placement of active TNI officers in managing civil affairs and positions.

The increasing wave of active TNI officers placement in various civil affairs and positions is now a reality that is difficult to avoid. Throughout 2023 alone, at least 2,500 active TNI soldiers occupied various civil positions.

This phenomenon has the potential to weaken the merit system in the bureaucracy, erode the professionalism of the TNI, and most crucially, disrupt the balance of civil-military relations.

The recent appointment of Major General Novi Helmy Prasetya as President Director of Perum Bulog by the Minister of State-Owned Enterprises (BUMN), for example, also fundamentally shows a shift in government policy regarding the imperative provisions regulated in Article 47 Paragraph (2) of the TNI Law.

This article explicitly states that active TNI soldiers may only hold civilian positions in certain institutions.

The institutions in question are institutions that handle the field of state political and security coordination, state defense, the presidential military secretary, state intelligence, state codes, the National Resilience Institute, the National Defense Council, National Search and Rescue (SAR), and the Supreme Court (MA).

However, the government actually ignores this provision.

Therefore, recalibration or re-adjustment of policies needs to be done in the revision of the TNI Law consisting of six articles so that it is relevant again to the initial objectives of TNI reform. This is important to do so that the revision does not cause policy deviations that cause deviations from the spirit of TNI renewal.

This recalibration needs to pay attention to four essential aspects, as a compass to direct the improvement of the TNI Law, so that it is in line with the structure of a democratic legal state.

The first aspect, TNI professionalism as a fundamental principle in TNI reactualization. Samuel Huntington in The Soldier and The State (1957) revealed that a professional soldier has three main characters.

The first character, he has expertise reflected in special knowledge and skills in the military or defense field, which is obtained through long education and experience.

Second, he carries out his profession to fulfill his social responsibility to the community. Third, he has an awareness of organic unity that formally formulates and applies professional competency standards, while upholding professional responsibility standards.

In order to maintain professionalism, military members are prohibited from using their expertise in irrelevant fields and must protect the profession from claims by outside parties who do not have competence in that field.

The TNI must avoid involvement in civil bureaucracy and business and maintain its commitment to not become a political tool used by the power elite.

Therefore, in the context of TNI reform, the statement of the 6th President of the Republic of Indonesia, Susilo Bambang Yudhoyono (SBY), in Standing Firm for Indonesia's Democracy (Shiraishi, Aizawa, Honna, and Prasetyawan, 2024), is still relevant to answer the current situation.

In his perspective, President Yudhoyono summarized the essence of a professional army, namely that the TNI must free itself from the ABRI Dual Function doctrine, which includes the role of the military in the socio-political realm as well as the role of work that places military personnel in government offices, civil institutions, and other sectors outside the military structure.

The second aspect, civil-military relations are a main pillar in state governance, where in principle the military group is subject to the decisions of civil authorities in a constitutional government system.

This includes determining when the military is deployed, for what purpose or mission, and the degree of emergency or use of force that is permissible. The balance in civil-military relations is elementary here.

In TNI Transformation (2015), Agus Widjojo also highlighted signs of the return of militarism which were marked by several conditions.

First, the absence of (civil) policy in TNI deployment, budgeting, and defense force development. Second, the use of TNI capacity outside the functions and authorities stipulated in the law.

Third, the involvement of the TNI in supporting practical political power. Fourth, the lack of willingness and commitment from the TNI to be placed under civilian authority.

Therefore, the TNI's greatest contribution to a constitutional and democratic civil government is to adhere to the legal provisions that govern it. The TNI must avoid involvement in civil bureaucracy and business and maintain its commitment so as not to become a political tool used by the power elite.

The third aspect, in the legal positivism approach to the revision of the TNI Law, the validity of a rule is determined by the decision of the highest authority and the written regulations that govern it.

Thus, something that was previously illegal or still in a grey area can become legal and have legal force after being officially stipulated in the applicable regulations.

This approach is seen in the appointment of Lieutenant Colonel Teddy Indra Wijaya as Secretary of the Red and White Cabinet by President Prabowo Subianto, which gave rise to controversy.

The appointment was carried out by revising two regulations at once: Presidential Regulation (Perpres) No. 139/2024 concerning the Arrangement of Duties and Functions of the State Ministries of the Red and White Cabinet for the 2024-2029 Period and Presidential Regulation No. 148/2024 concerning the Ministry of State Secretariat.

With this change, active TNI status can be accommodated at the Ministry of State Secretariat through the following two main steps.

First, disband the Cabinet Secretariat which was previously formed based on Presidential Decree No. 55/2020. Second, integrate the Cabinet Secretariat into the Ministry of State Secretariat under the Presidential Military Secretariat so that the position of Cabinet Secretary can be filled by an active military officer.

With a similar mindset, it is not surprising that views and aspirations have emerged that active TNI soldiers can occupy positions in the civil bureaucracy, as long as this is regulated by law.

This paradigm is a mistake. The relevant law to regulate the TNI in the future should consider the socio-political factors underlying TNI reform as a starting point as well as public aspirations that emphasize the importance of civilian supremacy in government.

The fourth aspect, the emergence of a phenomenon called by Giorgio Agamben as the normalization of emergency (State of Exception, 2005). In such conditions, there are two main reasons for the enactment of emergency, namely compelling urgency and the need for the continuity of the state.

As a result, the emergency is continuously managed and extended continuously. This process makes the emergency mechanism or system part of the permanent rules or policies so that the emergency becomes a new standard in social, political, or legal life.

This condition creates the institutionalization of emergency, which has an impact on the decline of the democratic order and the weakening of civil liberties.

This, for example, is reflected in the orientation of the use of flash legislative practices by ignoring public participation, which has given birth to legal products including the Covid-19 Government Regulation in Lieu of Law (Perppu), the Job Creation Law, the Indonesian Capital City Law, and the State Ministry Law.

In addition, there is a high flow of active TNI officers placed in a number of civilian positions that manage civil affairs, including state-owned enterprises and food security and resilience.

Based on this reflection, there are two things that need to be drawn as lessons for civil society.

First, the state expands its power and influence, thereby increasing its control over the public sphere and civil liberties. Second, compelling urgency or emergency conditions become the pretext and instrument of normal governance.

The revision of the TNI Law needs to be readjusted to the ethos of TNI reform which is based on a professional TNI and a balance between civil and military relations. The DPR and the government must not use changes to the Law as a means to provide legitimacy to momentary political interests.

The DPR and the government must also eliminate the pretext of urgent necessity in the legislative process to open up wider space for public expectations and participation.

D Nicky Fahrizal,Researcher at the Center for Strategic and International Studies (CSIS) Jakarta