Civil Supremacy Transformation
In order to map out these constitutional issues, we must first understand that these issues are a legal political consequence of the simultaneous regional head elections that will be held in November 2024.
The reestablishment of civilian supremacy was marked by the separation of the Indonesian Military (TNI) and the National Police through the second amendment to the 1945 Constitution, the stipulation of People’s Consultative Assembly Decree No. 6/2000 and the ratification of Law No. 34/2004 on the TNI and Law No. 2/2002 on the National Police. Since then, civilian supremacy has been a central doctrine in relation to civilian control over military power.
Currently, the doctrine of civil supremacy is facing a crucial constitutional issue, with the government's policy of appointing an active TNI soldier as acting regent of West Seram. Basically, this appointment is part of the policy to fill vacant posts as a consequence of the legal requirements of the Gubenatorial, Regental and Mayoral Election Law which mandates a nationwide simultaneous elections in 2024.
Also read:
> The Stagnation of Civil Society
Kompas daily has published two articles related to the response to this appointment. First, the article entitled "Respect Civil Supremacy" (25/5/2022) opened an important discourse related to the sustainability of our constitutional democracy. Second, the article entitled “MK: Active TNI-National Police Members Cannot Become Acting Regional Heads” (27/5/2022).
Basically, the two articles maintain that, first, the policy to appoint active military personnel is contrary to the spirit of the political and constitution reform of 1998, in which the TNI and National Police were removed from overt in political concerns.
Second, there are a number of regulations and rulings of the Constitutional Court that have been ignored regarding the appointment of active soldiers as acting regional heads. Finally, with the policy of filling positions outside the positions that have been stipulated by the TNI and National Police Law, TNI officers or members of the National Police who want to fill government positions—including fill the position of acting regional head—must resign first.
In order to map out these constitutional issues, we must first understand that these issues are a legal political consequence of the simultaneous regional head elections that will be held in November 2024. There are three consequences that need to be addressed as a result of the implementation of the regional election policy.
At the very least, the existing law requires middle-high-rank positions for acting governors, and lower-high-rank for acting regents and mayors.
First, if there is no appointment, the positions of regional head will be vacant, which will have an impact on the delivery of public services. Second, the filling of those positions indicates special criteria for them. At the very least, the existing law requires middle-high-rank positions for acting governors, and lower-high-rank for acting regents and mayors.
Lastly, with these special criteria, there are opportunities for all members of the state apparatus, both civil servants and non-civil servants, to be appointed as acting regional heads.
Starting from those three consequences, a constitutional issue has arisen in which the government appointed a middle-high-rank official from active TNI service as the acting regional head. If we adhere to the doctrine of civilian supremacy in a strict and militant manner, such appointment is not in line with several applicable regulations, namely Article 47, paragraph 1 of the TNI Law, Article 109 of Law No. 5/2014 on the state civil apparatus and Article 159 of PP No. 20/2020 on the management of civil servants.
But on the contrary, along with the changing socio-political landscape and high demand for public services, the doctrine of civil supremacy has undergone a transformation along with the rapid development of government organizations.
In an article entitled "Hallucinations of the Dual Function of ABRI and True Civil Supremacy" (Kompas 19/3/2019), Connie Rahakudini Bakrie provides an analysis that the involvement of the TNI in the government to cover economic, political, social and cultural fields is based on requests from ministries and agencies and is based on needs.
Because of this situation, there are three arguments that need to be observed carefully related to the widening role of TNI soldiers in agencies, ministries and government affairs. First, Article 109 paragraph 2 of the State Apparatus Law provides a window of opportunity and legal loopholes for the government to accommodate the role of TNI soldiers outside the offices that have been determined by the TNI Law. In the legal construction, resigning from active service is conditional because there is a phrase “if needed”, but meeting competency standards and selection is mandatory.
When we put this in the context of filling vacant posts, the Constitutional Court's consideration in its ruling No. 67/2021, which regulates the need for consideration and attention from the government before issuing implementing regulations, is more of a normative demand for the government. The regulation aims to set a clear mechanism for filling positions, especially those involving the role of TNI soldiers or active members of the National Police. In addition, it is also meant to ensure the legitimacy of the involvement – the merit system – and safeguard the pillars of constitutional democracy.
In this case, the law provides a prescription for concrete conditions, or on how to answer what things are needed to achieve a desired goal, where economic and political factors are taken into account.
So, if we borrow the ideas of Martin Loughlin (Foundation of Public Law, 2010), the normative demand for implementing regulations is the other side of the law, which reveals another character of law, namely potentia. In this case, the law provides a prescription for concrete conditions, or on how to answer what things are needed to achieve a desired goal, where economic and political factors are taken into account.
Second, competency and selection standardization is central for the admission of TNI soldiers into the bureaucracy. Thus, this instrument has strengthened the bureaucratic-legalistic ecosystem and corporate culture in the government. This condition places active soldiers who meet the qualifications as state apparatus employees into resources that are ready to be mobilized by the President as the holder of the nation’s highest authority.
This was taken into consideration by the Constitutional Court in ruling No. 15/2022. When a person has met the competency and selection standards to become a middle-high-tier or middle-low-tier civil servant, the person concerned can be appointed as an acting regional head. In the end, these resources will be earmarked to optimally achieve government priorities and public services. In another sense, we are heading toward a conception of a state whose government is strongly oriented toward the goals or priorities to be achieved, or a teleocracy.
Lastly, the transformation of civilian supremacy reinforces a condition that the involvement of an active TNI soldier in politics can only be done if he resigns or retires from active service. This shows that civilian supremacy ensures that the TNI no longer has the same privileges as it did in the past in the political arena.
In closing, the appointment of active TNI officers as acting regional heads is a form of the increasingly strong influence of civil supremacy in managing the state government.
The demand to continue to be able to provide optimal public services in conditions of transition ahead of the simultaneous local elections has prompted a policy to fill the roles of regional heads from elements of the TNI.
In this case, such demands have absorbed resources from the TNI to support the government. Thus, the lesson we
can draw is that we must formulate, as soon as possible, a regulation that is able to explain what things are needed to accommodate the existence of an acting regional head from the TNI or National Police. This is because, in fact, this is a concrete political situation that is not only happening at this time but is a repetition of policies in 2018.
D Nicky Fahrizal
D Nicky Fahrizal, Political and social change researcher at the Centre for Strategic and International Studies (CSIS) Jakarta
(This article was translated by Kurniawan Siswo)
