THE FOUNDATION OF THE INDONESIAN LEGAL ASSISTANCE INSTITUTION
(YAYASAN LBH INDONESIA)THE MILITARY ARE "FISHING IN TROUBLED WATERS"
ANALYSIS ON THE ORDINANCE PLANNING FOR
SAFETY AND SECURITY OF THE NATIONJakarta
August, 1999.In 1959, Indonesia issued Ordinance Number 23/Prp/1959 on the State of Emergency. The origin of this legal product is in the form of a Government Regulation as an Ordinance Replacement (Perppu). After its legalization through Ordinance Number 1 of the year 1961, said Perppu is therefore changed into an ordinance.
This Ordinance divides the nations state of emergency into three types, i.e., civil state of emergency, nilitary state of emergency and state of war.
What is meant with civil state of emergency is where the safety and law and order in the whole or part of the the territory of Indonesia is threatened by rebellion, riots or as the result of a natural disaster so that it is impossible to overcome with ordinary equipment.
What is meant with a military state of emergency is the appearance of war or danger of war or it is worried that the territory of the Nation of the Republic of Indonesia shall be raped in whatever way it maybe.
What is meant with a state of war is a condition where life as a nation is in a dangerous condition while from special conditions apparently there is or it is worried for symptoms endangering the life as a nation.
As usually is in the state of emergency practice, this ordnance also provides a very large authority to the person in authority to execute limitations and violations against HAM (Human Rights), especially against civil rights and peoples' politics. In a civil state of emergency, movement space of the people is limited, personal secrecy may be disclosed at any one time, the press and various mass media may have their movement space limited, communication through telephone hampered, permits for general meetings should be obtained through the person with authority of the civil state of emergency.
When the New Order was in power, said ordinance has never been executed. Meaning that, normatively, the government of the New Order had never determined that the safety condition of their nation to be in a state of emergency. Routinely, the civil as well as the military officials had always been announcing that the condition of the state is always in a "safe and Controlled" condition. But the statements of the officials of the New Order should never reflect their attitude. Why so ?We just what had happened during these last thirty two years. From the daily attitude of the government, especially from the military and police circles, the people felt that the military and police were always putting an attitude as if the nation is in a state of emergency. Meetings held by the people were always spied on and even hampered, peoples' organization were suspected and paralyzed and the press were bound. Convictions and kidnappings of activists just became matters of nearly "unimportant".
Ordinance Planning for Safety and Security of the Nation proposed by the government c,q. the Department of Defense and Security to the Peoples' Representative Council should be critically viewed and put into a democratic movement context. Especially in our efforts to materialize the wishes of most of the people of Indonesia to rebuilt the democratic political system and honor the Human Rights (HAM). It is in this context that the Ordinance Plan for the Safety and Security of the Nation should be viewed. This perspective is required in order that the reformation process does not give the opportunity to the authoritarian regime to consolidate their strength through various policies justified by themselves. Whenever an opportunity is given to the authoritarian regime to consolidate themselves, the democratization process which at the present moment is progress is in fact facing big danger.
"To fish in troubled waters"
It cannot be denied anymore that the Indonesian National Forces are behind the scenario of the Ordinance Plan formulation. Because it is only the Indonesian National Army (TNI) that has direct as well as indirect interest in the presence of this ordinance plan. In other words, in the power perspective, with the largeness of authority claimed through interpretation expansion on the meaning of the threat against the security and the safety of the nation, the Indonesian National Army shall obtain such a big political benefit if this ordinance plan is accepted by the Peoples Representatives' Council.
The political and social crisis momentum that occurred at the present moment has been securely calculated by the TNI as an opportunity to pass on the discussion process on this Ordinance Plan in the Peoples Representative Council (DPR). The crisis situation that is occurring outside the DPR Building, such as in Aceh, Batam, Ambon and a various number of riots that have been entered into the memories of the members of the DPR in Senayan, is like a pistol that is aimed at the head of each member of the DPR. So that this condition shall later always lead the members of the peoples' representatives to agree with the Ordinance Plan that is forwarded by the government. Selecting this momentum is very clear if we look at the general explanations of the Ordinance Plan. In the explanations it is mentioned that various incidents of social riots and rebellions that have happened in this country, such as the APRA, RMS, PRRI/PERMESTA, the Dutch aggression, the Indonesian Communist Party's uprising/G-30-S, DI/TII, the Madiun Affair, the riots in Ambon, Pontianak and Sambas, has pushed the government c.q. military to request for such a large power.
Political maneuvers like this has always been executed by the military circles to find righteousness for such a big authority they have. Even though historical facts of the military services are still under lots of debate, but what is clear is that the historical fact is unable to be altered to become a historical right.
A Power that is too large
This Ordinance Plan categorized the security condition of the nation into three levels, i.e., normal, military state of emergency and state of war. This leveling shows a the presence of an interpretation gradation of threats and at the same time the gradation of the military role in it. The more severe the situation of the country is, the larger the role that is played by the military. In other words, the larger the threat, the larger shall be the role played by the military, and therefore the larger is also the opportunity for violations of the Human Rights against the people.
We just look at the condition of the security that is NORMAL (see Article 8 to 10 of the Ordinance Plan), there it was stipulated that :
a. In the case that the State Police is regarded as incapable of facing the threat, the military shall therefore be able to interfere. Meanwhile, what is the size of the State Police force that may or may not be adequate, which has never been stated.
b. That is meant as a threat is the horizontal conflict (social riot) that is based on racist, religious, tribal and group issues. Except that, the important part to be scrutinized here is the entrance of violence of farmers and labor as one of the threats that enables the return of the military into the safe keeping function.
c. The type of steps that can be taken by the military and police are grasping, expulsion and isolation, territory blockade, prohibition of going out of homes.
Specially for point b., the meaning of labor and farmer violence as a threat to security shall widely open the opportunity for the military and police to enter into land and labor conflicts. The military and police shall of course not only act repressively, but proactively they will prevent the appearance of threats. On behalf of this preventing the occurrence of farmers and labor violence, the military and police may intervene in labor and land conflicts. If this happens, then the role of the military and police is totally not experiencing a change. With the presence of an ordinance that arrange these matters, the intervention shall even be regarded as a legal step.
If the military and police, in NORMAL conditions are already given the authority as mentioned in point c., it may be taken as granted that lots of Human Rights violations may occur, especially violations against the right to move. Especially if this step is in the context of labor or land disputes, it is clear that this Ordinance Plan is meant for controlling, paralyzing and breaking the resistance power of the farmers and the labor. At the present moment, even though there is not an ordinance that allows police or military to meddle in land and labor disputes, those meddling have occurred lots of times and has always caused a disadvantage to the benefit of the farmers and laborers, because they always put themselves in the position as a law enforcer for government projects or as a protector of businessmen.
The category of a nation in a state of emergency (in Chapter IV of the Ordinance Plan) is still divided into two levels, which are the military state of emergency situation (Article 19 to 25) and the state of war situation (Article 26 to 36 of the Ordinance Plan).
A most concrete example of the military state of emergency is the decision for the DOM status (Military Operation Region) in Aceh, West Irian and East Timor. By viewing the authority that shall be given to the military by the Ordinance Plan, it is clear that violations on human rights will be the most serious impact of the decision for the military state of emergency status. This Ordinance Plan shall later provide the military with authority to cut off all the claims for fairness as is appearing lately in Irian Jaya, Riau and Aceh. There is a totality for the approach against the problems, which according to this ordinance plan is regarded as a threat against the safety and security of the nation. The militaristic approach in a response to the problem of unfairness in the relationship between the Central and regions is proven that it may cause the actual disintegration. Just look at the Aceh case at the present moment.
To undermine the sovereignty of the people
This Ordinance Plan provides the authority that is very large to the government in determining three security conditions for the nation. This Ordinance Plan does not identify the mechanism for forwarding of consult and the responsibility to the Peoples' Representatives Council. The one that is proper to be criticized is the presence of the Department for National Defense and Security and the Council for Up holding the Security and Legal System. Those two Councils were formed by the government of Habibie to give response to political crisis that are at present in progress. In both of said Councils, the position of the military are very dominant. Both are actually institutions of analysis that provides consultative aid to the President in each respective field. So it is clear that both are under the President and are much influenced by military ideas.
So, if the President's decision if a nation is in a state of emergency or not, are based on their suggestions which is why that it is very subjective, containing a conflict of interest and is clearly undermining the sovereignty of the people. The role of the DPR has been entered into subversion by both institutions. It should actually be that people through their representatives in the DPR be the partners of the President for deciding on critical situations of the nation.
The Police is set aside again
The autonomy of the Police against the military is up to the present moment not fully materialized. They are still under the Minister for Defense and Security and only after a few years they will be released as an organization separated from the military organization and placed directly under the President. That is the plan. But this Ordinance Plan has another plan that is much more explicit, that is, the military shall again remove the role of the Police in safe keeping the nation, even though the safety of the nation is in the NORMAL condition. Articles 8 to 10 of this Ordinance Plan shows this tendency. During The New Order in power, the Police has been humbled under the military, structural as well as psychologically. In the Police circles, naming the military, especially for the army, is "older brother". This shows that the Police feels psychologically inferior against the military. In the extra institutional bodies that had once been formed by the New Order, like Kopkamtib or Bakorstanas, the Police institutions were truly under the control of the military through the functional control, especially for cases that are threatening authority. At that time, Kopkamtib or Bakorstanas may just call, interrogate and detain people that are regarded to oppose authority. These methods were not stealthily executed any more. In the mass media they commented that it was as if they were the only ones that have the right to up hold the law. Officially they even conducted the function of investigation, investigations with the pretext to back up the duties of the police. So, with the presence of the Ordinance Plan, the military seems eager to re-enter the matters of up holding the domestic law through the "entrance" of the NORMAL situation of the Nation.
The DECISION of the Peoples' Representatives Assembly
The Special Session of the Peoples' Representatives Assembly in 1998 appeared to be suitable for further discussion. From said session the representatives of the people, of which all are supporters of the Suharto regime and the Duo Function of the Indonesian Armed Forces started a scenario of consolidating the authoritative power. The DESCISION of the Peoples Representatives Assembly (MPR) Number X/MPR/1998 that was produced through a past Special Session of the MPR in 1998 that has provided bases for justifying the government of Habibie that is fully supported by the military to lay an egg for this Ordinance Plan. This is probably some sort of political concession between Habibie and the military. The military side shall support Habibie if Habibie facilitates the rehabilitation process and conservation of the military power on the political stage. The DECISION of the MPR is explicitly stating that it will be necessary to form an ordinance on the safety and security of the nation as replacement of Ordinance Number 11/PNPS/1963 on the Destruction of Subversion Criminal Acts. If this Ordinance Plan is approved, the substance of the Subversion Ordinance shall actually be accommodated in two legal products, i.e., in the Criminal Code of Law (after a change against the stipulations on Crime against the Security of the Nation) and the Ordinance on the Safety and Security of the Nation. This is truly a bit too much.
If within a nation where its government obtained such a large protection guarantee, then usually the protection guarantee against its people shall become smaller. The government shall be protected by subduing the critical attitude and characteristic of the people, the political rights censored and the civilian rights kept within the drawers of those in authority. Therefore, it is proper that the DECISION of the PEOPLES REPRESENTATIVES ASSEMBLY be withdrawn if in the future a democratic life is still hoped for.
What should be done
Principally, the whole political plan that would like to return the authoritarian power should be declined. Just in case that it is still in the form of a plan, the Ordinance Plan on the Safety and Security of the Nation should be cancelled. Whichever DPR it may be, the one that is present now, or that later shall occupy the place in Senayan, should be pushed to decline this plan. This Ordinance Plan is clearly against the reformation current that is at present progressing in this country. The military should actually be in control of themselves. If not, they will become more unpopular in the eyes of the people. The Police should quickly arrange their political agenda t free themselves from the power of the military.
The General Session of the Peoples Representative Assembly in 1999is a quite strategic political momentum to prevent the re-establishment of the authoritarian power in Indonesia.