Eryanto Nugroho – A convoy of military buses and trucks slowly rolled into the courtyard of the Indonesian House of Representatives (DPR) building in the early hours of Thursday (20/03). Indonesian lawmakers were scheduled to approve revisions to Law 34 of 2004 on the Indonesian Military (TNI) in an attempt to expand the roles of military officers in civil governance.
A few days earlier, members of the TNI's Special Operations Command (Komando Operasi Khusus or Koopsus), the military's elite counter-terrorism unit, were also deployed to guard a five-star luxury hotel in Jakarta. They were there to protect lawmakers deliberating on the TNI Law revisions behind closed doors.
The sight of the military swarming the streets to prevent student protesters from disrupting a DPR plenary session brought back memories of President Soeharto's New Order, when soldiers were an integral and oppressive part of Indonesian political and social life. The new TNI law, which was unanimously approved by the DPR, is clearly designed to bring back the very doctrine that underpined the former dominance of the military: the dual function of the armed forces (Dwifungsi TNI).
Dwifungsi TNI was basically a legal and policy framework that allowed the military to leave the barracks and work in various government and political institutions. It was the core mechanism that allowed Soeharto to rule the country with an iron fist for over three decades.
On Thursday, DPR Speaker Puan Maharani sought to dispel concerns that Dwifungsi TNI was set to return. In a press conference following the plenary session that passed the amendments to the TNI Law, she claimed that the changes were not meant to bring back Dwifungsi. She said that both lawmakers and the government are committed to upholding civilian supremacy.
We have good reason to take her claim with a grain of salt.
The silent return of Dwifungsi?
The word 'Dwifungsi' does not appear in the amended TNI Law. In fact, the bill contains provisions asserting the values and principles of civilian supremacy. However, buried in the fine print are problematic provisions with the potential for interpretations that could further expand opportunities for military personnel to penetrate the civilian realm.
Article 3 – on the TNI's institutional position – is a good example. The amendments change the wording in Article 3(2) law regarding the ways in which the military coordinates with the Defence Ministry. The original 2004 law placed the TNI 'under the coordination (di bawah koordinasi)' of the Defence Department (now Ministry of Defence) for defence policy, strategy, and administrative support.
Now it says 'within the coordination (di dalam koordinasi)' of the Defence Ministry for defence policy and strategy and administrative support, and related to TNI 'strategic planning'. The amendments also delete the last sentence in the original Elucidation (explanatory memorandum) to Article 3(2), which stated: 'In order to achieve the effectiveness and efficiency of national defence management in the future, the TNI institution will be within the Defence Department'.
These changes are subtle but striking, and could have serious implications. At the very least, they significantly weaken the (civilian) Ministry of Defence's authority over the military.
Moreover, the new TNI law modifies Article 7(2)(b) governing 'Military Operations Other Than War '(Operasi Militer Selain Perang or OMSP). These operations were previously carried out 'based on state political policy and decisions'. Under the new law, the legal basis is now 'regulated by Government Regulation or Presidential Regulation'. The result is that the decision to launch an OMSP now entirely rests with the executive power- that is, the president and his ministers.
The amendments also introduce two new OMSP categories (in fact, post-revision, there are now a total of 16 OMSPs). One OMSP category is 'helping counter cyber defence threats' and the other is to 'protecting and rescue Indonesian citizens and national interests abroad.'
A cyber defence OMSP could obviously threaten civil society's freedom in the digital space. This was confirmed just three days after the TNI Bill was approved, when a Ministry of Defence official revealed that the TNI intended to conduct information and disinformation operations to tackle threats to state sovereignty in cyberspace. He added that the TNI would target parties motivated to undermine public trust in defence institutions and the government – a category that could easily be interpreted to cover civil society groups critical of the government.
Article 47 of the amended TNI Law concerning civilian positions that can be occupied by active TNI soldiers also reeks of dwifungsi. It adds five vital civilian institutions (now a total of 14) where positions can be filled by TNI personnel without them having to resign or retire from active military service: the institutions in charge of border management, disaster management, counter-terrorism, and marine security, and the Attorney General's Office.
This can only mean that there will soon be more military officials in powerful civilian positions. To put things in perspective, in 2023, there are already 2,569 active TNI personnel in civilian positions, according to human rights group Imparsial.
Article 53 on the retirement age of soldiers is also indicative of an attempt to revive dwifungsi. The new TNI law raises the retirement age of soldiers, with different limits ranging from the ranks of tamtama (private) and bintara (NCO) to four-star general. Komnas HAM, the national human rights commission, issued a critical note on this issue, warning that this extension of the retirement age risks causing stagnation of leadership regeneration, budget inefficiency, as well as a buildup of personnel without clear tasks – obvious candidates for a role in civilian government.
Lawmaking playbook on repeat
Sadly, passage of the TNI Law Revision fits a pattern of undemocratic lawmaking by the Indonesian elite over the last decade. We have seen many laws being enacted through reckless, rushed, and closed processes that bypass proper legislative procedures and ignore differing opinions.
This is not the first time and will not be the last.
For example, in 2019, the Corruption Eradication Commission (KPK) was systematically weakened through a lightning-fast revision of the KPK Law (completed in just 12 days). In 2020, the highly problematic and controversial Omnibus Law on Job Creation was hastily deliberated in less than six months. Also in 2020, the Mineral and Coal Bill was completed in three months, while a revision to the Constitutional Court Law took just one week. All these legislative processes were carried out without meaningful public participation, and all have been criticised for undermining Indonesian democracy.
This trend in lawmaking continues under Prabowo's leadership.
The DPR will soon discuss revisions to some critically important laws for human rights and democratic freedoms: the Criminal Procedure Code (KUHAP), the National Police Law, and the Attorney General's Office (AGO) Law. If not properly monitored, we can expect to see the same problem repeating over and over again, with dire consequences for civilian freedoms in Indonesia.
With meaningful opposition now absent from the DPR it is safe to say that the Prabowo government could get what it wants with little, if any, pushback, unless, of course, civil society can somehow mobilise the public – a steep climb, but not impossible.