Military court reform in Indonesia is part of the national security sector reform. As part of the entire national agenda, improvement of military justice has to be an element of the effort to reorganize the functions, structure and culture of institutions responsible for security, in accordance with the values of democracy and human rights.
Aspects of fairness in the military justice scheme has been the main focus since the commencement of security sector reform in 1998. In addition to the separation of the TNI (National Army) -Police in 2000 and the abolition of dual function of ABRI (Former Name of National Army) in 2004, following the reform agenda is the reform of military justice in Indonesia is the legal umbrella of Act No. 31 of 1997 on Military Justice.
That agenda should be performed soon, as a countermeasure to several cases of military misconduct by members of the TNI. While in the other hand, the status quo tend to immunize TNI from the logic of the society. One of the highlights is the case of the military judicial process on nine members of the Battalion 744/Satya Bhakti Yuda, who committed maltreatment against civilians. The tragedy was resulted in several death-toll in Atambua, Belu regency, West Timor. on March 11, 2011.
Following the verdict of the Military Court judges Kupang against the nine members of the Military Justice Infantry Battalion (Yonif) 744/Satya Bhakti Yuda, ENT public spotlight focused on Indonesia's military justice system, particularly drawn from the military tribunal process that occurs in Kupang, on Tuesday, July 21, 2011. At the very least, the family of Charles Mali (21 years) was saddened by the decision of the judges, which was considered away from the principle of fairness and equality before the law. Pro-democracy community groups and human rights actvists expressed rejection of the court decision.
Then, the batallion members were punished by an average sentence in prison under 1 year, with jail term cut and only one member who was disabled from active duty Army. This decision was based on the fact the trial that there had been a negligence committed by 9 Infantry Battalion soldiers 744/SYB and wounded in that task by persecuting civil institutions which lead to casualties (vivanews.com).
It’s lucid that Indonesian Military Trial is likely similar to the civil one, which is far from justice fundamentals and law impartiality. The verdict has broken the people’s heart, particularly the victims’ families. That case of military misconduct has left one with wonder, will this injustice continues?
There are reasons why problem of the military court reform still lingers. The court is supposed to become a securing place for those army members who committ crimes, including violation of human rights. While on the other side, the Law no.31/1997 --which already existed to maintain the court—has less sufficient contextual rule.
Military Law Enforcement Issues
Military justice in Indonesia is still a matter of law enforcement system in Indonesia. The main indicators of the problem are the decision making process and the final verdict read by military judges are not in accordance with the principles of democracy and human rights. During the whole new order of military justice process, from investigation to prosecution by military prosecutors are very closed. In the reform era, the closure of military courts is still happening. Another difference was wounded justice communities are in the process of reform era military tribunals prefer the command line instead of an institution of public conscience, which became the main considerations in the process. It boils down to read the decision by the judges.
The verdict delivered yesterday judges tend to be based on the TNI command line rather than on considerations of the Supreme Court as the holder of the highest judicial authority in the country. The highest judicial power in a military court under the Supreme Court held the delivery of judicial power by a military court in September 2004 the Armed Forces Commander and the Presidential Decree. 56 of 2004, as well as the mandate of Law Number 49 Year 2009 regarding Judicial Power. Based on these three rules of law, supervision of the military court under the Supreme Court, while the discipline and career guidance should be submitted to the Department of Defense.
Under the oversight authority of the Supreme Court, the final decision should be based on the military tribunal process judgment common criminal, not a command line. Coaching Corps Military Law committed by TNI headquarters through Law Development Board (Babinkum) associated with the military career of military personnel in the environment likely influenced the command of Military Justice in law enforcement and justice in the military environment. Command influence occurs when a military authority to influence, obstruct or deliberately directed to the incorrect administration of justice. Influence of the military command not only in military courts, but military prosecutors are in organization and administration which is part of Babinkum TNI based in TNI Headquarter.
Safe Haven
Based on reports in Indonesia policy studies conducted by Imparsial, during the years 2001-2006 there were 46 cases of human rights violations committed by military and police officers with an average sentence under 4 years in prison. While reports of Komnas Ham, kekrasan conducted military against civilians in the province from 2009 until the beginning of 2011 reached 11 cases, only 5 of which are processed in a military court.
Based on the two reports shows that the significance of military justice for criminal acts of the military personnel are still far from expectations. Military justice become safe haven for the resolution of criminal cases committed by military members. Disciplinary action taken by the judges of military courts is very low when compared to the criminal acts committed by members of the military, and even lead to death. The same sentence was given to military members, both in capacity and institutional duty assignment outside the institution. Given sentence is not automatically provide a deterrent effect to the soldiers who did this crime. In fact, the deterrent effect is one of the goals of justice in a democratic country. It is a domino effect on the emergence of a variety of other criminal acts, such as that experienced by Charles Mali and his colleagues, even very open to future possibilities of violence that afflicts other civil society rights violations, particularly in West Timor.
The credibility of the military justice is tarnished in the public eye, because in some cases, including in the case of the death of Charles Mali has been unable to capture the sense of justice and put it in the judge's decision.
Law No. 31 of 1997
One of the main legal basis of military justice in Indonesia are Law No. 31 of 1997, in addition to Law No. 49 of 2009 on Judicial Power. The law of military justice should now be changed, because the rule of law is a product of the regime established by the military domination. In the New Order era, the military court is part of the military hegemony in various areas of community life of Indonesia.
In the early period of the security sector reform, various laws new order dominated by the military to change. The emergence of MPR-RI No.: VI/MPR/2000 of Separation Military and Police, Law No. 3 of 2002 on the TNI and Law No. 34 of National Defence is attempting to regulate the governance of military institutions, including the military court order accordance with the spirit of reform and democracy. Mandate to make changes to military justice is reflected in the TAP MPR No. VII of 2000 on the role of the TNI and the Police Role. In Article 3 (4) (a) declare the Indonesian National Army soldier is subject to the authority of the military justice in violation of military law and subject to the general judicial power in terms of the general criminal law violations. However, to this day attempt to change the Military Justice Act is still confronted with obstacles. One major obstacle is the strong desire to distinguish the TNI military personnel with civilians. In fact, the bill is addressed to the Military Tribunal in 2007 was hit by the strength of the military status quo in the current logic of democracy that give priority to civilian rule and respect for human rights.
Looking at the military court in Kupang on 9 members of Battalion 744 encourages community efforts to revive the spirit of changes in Law No. 31 of 1997 is. General crime committed military forces should use the logic of civil penalty to put the military as an ordinary citizen who has the same status in the eyes of the law (equality before the law). The military is part of ordinary citizens who have the same status in the eyes of the law. Therefore, it should in general crime, such as assault causing death, the verdict is given based on the logic of common criminal.
Military judicial process against the nine members of Battalion 744 and the penalty imposed, encourage the holding of the correction of military justice in Indonesia. Various considerations above are simple considerations that are expected to arouse consciences of all components, especially the NTT law enforcement efforts to encourage a fair and democratic values and human rights.
Hipolitus Wangge,
Researcher at Pacivis University of Indonesia
This piece is formerly published at Pos Kupang, August 27, 2011
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