PLANNING
EXPLANATION
ONTHE ORDINANCE OF THE REPUBLIC OF INDONESIA
NUMBERYEAR
ON
THE SAFETY AND SECURITY OF THE NATIONGENERAL
The Indonesian Independence Proclamation on the 17th of August 1945 is the starting point for the people of Indonesia in living as a nation to continue the struggle to reach the lofty ideals, i.e., an Indonesian community that is independent, sovereign, united, fair and prosperous. In the opening of the 1945 Constitution, the fourth line, it is decided that the Government of the Nation of the Republic of Indonesia has the obligation to protect the whole nation and the motherland of Indonesia, to improve general welfare, to develop the mind of the nation and participate in executing the law and order of the world that is based on independence, eternal peace and social justice. Based on these stipulations, conclusions may be drawn that protecting the whole Indonesian nation and motherland from every form of threat from abroad and the domestic side is in its essence one of the functions of the nation's government that has become the basic in the efforts of arranging welfare and arranging security.
The Indonesian nation that is part of the communities of the nations in the world that occupies a territory located at the cross road position and has become the traffic of the world can not release itself from the interrelation of nations and countries that has a positive and negative influence against the life of the Indonesian nation. Aside from that, the Indonesian inhabitants that consist of various races, religions, ethnic groups and culture distributed on thousands of islands, has the potential for arising conflicts that may result in riots and violence.
The geographic condition of Indonesia that consists of thousands of islands and vast seas, lots of volcanoes and natural riches that are distributed, aside from having the potential to support development, they are also vulnerable against natural disaster and inviting conflicts and is the arena for power struggle from other nations.
From said inhabitants and geographic conditions a conclusion may be drawn up that at any time threats may appear from abroad as well as from the domestic side that may endanger the sovereignty of the nation, unity and integrity of the nation, the wholeness of the territory and the value of the Five Principles of the Nation.
From the history of the nation's struggle and the development of arranging the nation's security defense all this time, has proven that various times the security and safety of the nation have been threatened, among others :
1. a threat against the Nation Unity of the Republic of Indonesia in the form of federal movements and separatism movements of the "Angkatan Perang Ratu Adil (APRA)", the Rebellion of Andi Azis, the Republic of South Moluccas (RMS), the Revolusionary Government of the Republic of Indonesia/Perjuangan Semesta (PRRI/PERMESTA) and Papua Merdeka ;
2. A threat to the sovereignty of the nation, i.e., with the attack from the Dutch that would like to re-establish their power in Indonesia that have caused the outbreak of the first and second war for independence.
3. A threat against the ideology of the "Panca Sila" nation in the form of a.o., Madiun incident 1948/Indonesian Communist Party, , Darul Islam,/Tentara Islam Indonesia (DI/TII) and the 30 September 1965 Movement/Indonesian Communist Party (G-30-S/PKI) ;
4. Threat to the unity and integrity of Indonesian Nation in the form of tribal, religious, racial and inter groups riots in Pontianak in 1997, in Ambon and Sambas in 1999.
Starting from the matters forwarded above, life pertaining to the state shall always be faced with peace or crisis problems. In a state of peace or in a normal state, the arrangement for welfare should be given priority without neglecting the arrangement for safety and security of the nation.
On the contrary in a state of crisis or in a state of danger the arrangement of safety and security should be put forward without neglecting the arrangement for welfare, which is for the sake of protecting the people and country.
In facing and overcoming the threats that may endanger the life pertaining to the nation, the Indonesian nation has always held to the view that "the Indonesian nation loves peace but loves independence more", which means that the Indonesian nation considers that war or any other violence are inhumane deeds. That is why in facing a conflict with abroad, efforts are always tried through peaceful methods and overcoming domestic conflicts always through negotiations for an agreement and persuasive efforts. Whenever all those efforts failed, war or other repressive measures are forced to be taken as a last resort to maintain independence and to up hold the dignity of the nation.
In arranging life pertaining to the nation for arranging the welfare as well as the arranging the safety and security of the nation, in a normal condition and in a state of danger condition should be based on the regulations of the law, because in the system of the nation's government it is specified that Indonesia is nation based on the Law.
The General Explanations of the 1945 Constitution it is specified that the President is the highest executive of the nation's government under the Peoples Consultative Council.
In the Body of the 1945 Constitution and the Ordinance On The Security Defense of the Nation it is mentioned that the authority of the President a.o. are :
a. to hold the authority of the government according to 1945 Constitution;
b. to hold the highest authority of the Army, Navy and Air Force;
c. with the approval of the Peoples Consultative Council to declare war, to make peace and arrange agreements with other nations;
d. to declare a state of emergency
All these points out that the highest authority in the arrangement of the safety and security of the nation is in the hands of the President in normal conditions as well as in a state of emergency.
To arrange said safety and security of the nation, an ordinance as the legal basic for the arrangement of the nation's safety and security shall be necessary to be prepared in facing each threat from abroad or from the domestic side, in normal conditions through special handling as well as in a state of emergency, i.e., the Ordinance on the Nation's Safety and Security.
The arrangement of the Nation's safety and Security in this Ordinance is based on Principles of Law Security, protection of integrity, proportionality, openness and professional principles. Therefore all the stipulations in this Ordinance should reflect the materialization of said six principles.
In normal conditions, the State Police of the Republic of Indonesia as the law enforcement body of the nation shall be responsible and take the duty of maintaining the public safety and law and order.
In a highly urgent and compelling situation for the general benefit, the Police force may request the aid and utilize elements of the Indonesian National Forces. But whenever the Police force with its supporting elements is considered to be unable or not directly able to overcome it, the President shall declare special handling in part or the whole territory of the Republic of Indonesia.
Whenever the intensity of the threat keeps increasing and is unable to be settled with special handling, the President may be able to declare part or the whole of the Republic of Indonesia to be in a state of emergency. The level of a state of emergency in this Ordinance consists of a military state of emergency and a war state of emergency that are different with a state of emergency that is arranged in Ordinance Number 23 Prp of 1959 on the State of Emergency that consists of the Civil State of Emergency, Military State of Emergency and the State of War. These matter is based on the considerations that the nation's security defense responsibility and management are the authority of the Department of Safety Defense that is not within the autonomy of the Regional Government.
Another difference with the previous ordinance is that in this ordinance a reason for announcing the military state of emergency and the state of war, where each is explicitly mentioned in each of said level, which is meant that the President in deciding for the level of situation has a clear guidance, base and reasons, while in the previous Ordinance the reason of the level of declaration is arranged in general.
In this Ordinance it is also explicitly stated that the arrangement of the nation's safety and security are in normal condition with special handling or in a state of emergency should be declared by the President himself after hearing and considering the opinion of the National Safety Defense Board and the Board for Up Holding the Safety and Legal System. This matter has the objective that when the President makes a decision that is fully objective, secure and accurate because it concerns the life of the community.
As has been mentioned above, the announcement of a military state of emergency is executed with reasons that a revolt has occurred and efforts has been made to separate a part of the Nation's territory of the Republic of Indonesia while the state of war is declared with reasons whenever war or danger of war has erupted in part or the whole territory of the Republic of Indonesia.
In a state of emergency, the application of this ordinance has the obligation to heed the international law and hold high the human rights.
Considering that Ordinance Number 23 Prp of the year 1959on the state of emergency that all this time has been the legal base of arranging the nation's safety and security of the nation is not adequate anymore with the development law and state structure , is necessary to be revised with this Ordinance.
ARTICLE BY ARTICLE
Article 1
Clear enough
Article 2
Clear enough
Article 3
Clear enough
Article 4
Point a.
What is meant by "The principle of Law security" is a principle in a legal nation that give priority to the base of regulations of law, appropriateness, and fairness in each policy of Arranging the Nation.Point b.
What is meant with "The Principle of Guardianship" is a principle that provides protection against human rights from arbitrarily steps, as materialization of the Unit Nation of the Republic of Indonesia that is based on lawPoint c.
What is meant by "the Principle of Integrity" is the principle that gives priority tocoordination and cooperation between the concerned partiesPoint d.
What is meant by "the Principle of Proportionality" is a principle that gives priority to the balance between rights and duties for the Arrangement of the Nation.Point e.
What is meant by "the Principle of Openness" is that all regulations and steps taken may be known to the community for its intentions and objectives .Point f.
What is meant with "the Principle of Professionalism" is the principle that gives priority to expertise based on the code of ethics and the stipulations of the regulations of law in force.Article 5
This stipulation is as a confirmation that the safety of the nation is one of the functions of the nation's government. The President is the highest executive of the government as is stated in the General Explanations of the 1945 Constitution on the Nation's Government System.
Article 6
Clear enough
Article 7
Clear enough
Article 8
Paragraph (1)
What is meant by "special handling" is an effort in the arrangement of the nation's safety and security in normal conditions by the utilization of the power of the Indonesian National Forces, whenever the State Police of the Republic of Indonesia with its supporting elements is evaluated as unable or is unable to directly prevent and overcome riots.Paragraph (2)
What is meant with "other riots" are a.o. riots caused by acts of violence by the labor, farmers and fishermen.Point a.
What is meant by "the function of the government is not being executed as it should be" is a.o. caused by the major part of the government's officials are unable to perform their duties, absent from the office due to feeling of fear and or damage of the working means and infra structure as a result of riots.Point b.
What is meant by "the economic life and the social life of the community are disturbed" a.o. is marked by the non-functioning of the economic activities such as the destruction of shops, the fear of people selling, the disturbance of religious executions, and the disturbance in the execution of learning and teaching.Paragraph (3)
The announcement of special handling is a realization of the openness principle on the utilization of the Indonesian National Forces' power.What is meant by "the concerned Non Departmental Government Institutions" are a. o. the Board for Up Holding the Safety and Legal System, the Attorney General, and the Body for the Intelligence Coordination of the Nation.
Paragraph (4)
What is meant by "does not reduce the duties and authority of the State Police of the Republic of Indonesia" contains the meaning that at the time of utilization of the powers of the Indonesian National Forces, the National Police of the Republic of Indonesia remain in the execution of their duties and authority as the state law enforcers, protector and guide of the community in accordance with the regulations of the law in force.Article 9
Clear enough
Article 10
Paragraph (1)
Point a.
Clear enoughPoint b.
Clear enoughPoint c.
Limiting and or closing of territories a. o. limiting and or closing of airports, sea ports, residential areas, economic centers of activities, government centers and location of vital objects.Point d.
To limit people staying outside their homes among others curfew stipulations or others occasions that are stipulated.Paragraph (2)
Clear enoughParagraph (3)
Delegating steps to the Military Region Commander is meant to quicken the threat overcoming process considering the vastness of the territory, characteristics of the region and the incident faced. Delegating steps to the Military Region Commander cannot be delegated any more to an official under him.Article 11
Clear enough
Article 12
Clear enough
Article 13
Clear enough
Article 14
Clear enough
Article 15
Clear enough
Article 16
Paragraph (1)
What is meant with "except stipulated otherwise in said decision" contains the meaning that the validity of said decision is not at the time of announcement, but is stipulated in another time after the announcement, but is not allowed to back dated validity.Paragraph (2)
Clear enoughArticle 17
Clear enough
Article 18
Clear enough
Article 19
Point a.
What is meant with "rebellion" is :
- to fight against the government of Indonesia with weapons.
- To fight the government by a mutual attack or to join oneself with a gang that fights the government.Point b.
What is meant by "efforts to separate as a territory of the Nation Unit of the Republic of Indonesia" are factual efforts that are executed by certain groups based on ethnic, religious and regional racism to determine a part of the territory of the nation as an independent nation.Article 20
Clear enough
Article 21
Paragraph (1)
Clear enoughParagraph (2)
Clear enoughParagraph (3)
The steps mentioned in this paragraph is of universal nature and parallel with the Declaration of Human Rights (United Nations Declaration of 1948) Article 29 which among other said "that in executing his/her rights and freedoms every man should abide only to the limitations that have been determined by the ordinance with only the intention to guarantee the recognition and honor that are suitable for the rights and freedom of other men, and to fulfill the terms that are fair from morality, general discipline in a democratic community. Article 29 is specially aimed at the Human Rights that are relative natured and not meant as steps in the framework of finalizing criminal cases, but is meant to prevent and overcome threats or to reveal the back ground of threats that are faced.Article 22
Paragraph (1)
What is meant with "or of identical rank" is the commandant of the Indonesian National Forces Naval troops and the commandant of the Indonesian National Forces Air Force troops whose ranks are equivalent to that of the Military Resort Commandant.Paragraph (2)
Clear enoughArticle 23
In determining the legal region of the Regional Military State of Emergency Authority, the President is not bound to the government administrative region.
Article 24
Clear enough
Article 25
Clear enough
Article 26
Clear enough
Article 27
Clear enough
Article 28
Clear enough
Article 29
Clear enough
Article 30
What is meant with "his legal area" please see explanations on Article 22.
Article 31
Clear enough.
Article 32
Clear enough
Article 33
Clear enough
Article 34
Clear enough
Article 35
This Article is meant that in whatever condition, the law should still be held.
Article 36
Paragraph (1)
This paragraph is meant that in whatever the condition are, the last wishes of someone like the preparation of a testament should be executed.Paragraph (2)
Clear enoughArticle 37
Clear enough
Article 38
Clear enough
Article 39
Clear enough
Article 40
Clear enough
Article 41
Clear enough
Article 42
Clear enough
Article 43
Clear enough
Article 44
Clear enough
Article 45
Clear enough
ADDITIONAL STATE GAZETTE OF THE REPUBLIC OF INDONESIA NUMBER