Ridarson Galingging, Jakarta – According to existing Indonesian law, Indonesian Military (TNI) personnel who commit ordinary crimes are supposed to be tried by regular or civilian courts. Military courts only have jurisdiction when military personnel commit military offenses.

These jurisdictional issues are defined in Article 65 of Law No. 34/2004 on the TNI and People's Consultative Assembly (MPR) Decree No. VII/MPR/2000.

However, Defense Minister Juwono Sudarsono and the TNI leadership are resisting placing soldiers and officers under the civilian justice system. They claim that enforcing the 2000 MPR decree regarding the prosecution of military personnel in civilian courts would disrupt the country's defense system.

The House of Representatives special committee working on amending the 1997 Military Tribunals Law is trying to bring the law on military tribunals in line with the 2004 TNI Law and the 2000 MPR decree.

Speaking before the House committee, Defense Minister Sudarsono tried to block civilian court jurisdiction over TNI personnel who commit non-military criminal offenses that fall under the Indonesian Criminal Code. He wants to give exclusive treatment to military personnel who commit crimes unrelated to their military function or operations.

The TNI thinks such crimes are their own business, as if ordinary crimes committed by soldiers and officers in a non-military context have a different status than crimes committed by all other Indonesians.

The minister offered the odd argument that the country's defense system would be disrupted if military personnel were tried in public courts for ordinary crimes. He also argued that the legal infrastructure of civilian courts was not ready to try military personnel, adding that civilian judges were not trained in military affairs.

This is also a strange thing to mention since civilian judges would be trying soldiers and officers for things that have nothing to do with military affairs.

Why is the Defense Ministry suddenly resisting so strongly the jurisdictional reach of civilian courts to include all Indonesian citizens who commit ordinary crimes? Was it a mistake of our legislators to demilitarize Indonesia by making officers and soldiers equal to everyone else when they commit crimes unrelated to their military function, such as rape, corruption or theft?

Is this not an effort to maintain a separate status for military personnel that was common under the authoritarian New Order regime, and which was so thoroughly rejected by millions of Indonesians participating in the dismantling of that same regime?

Are military personnel so arrogant or privileged that they believe they should not be investigated and prosecuted by the police and prosecutors, and sit and be judged by civilian judges for non-military crimes?

The fundamental spirit of a system of laws, courts and justice is the equal treatment of all citizens. Soldiers would be treated just like any other ordinary citizen. They would be presumed innocent until proven guilty, have due process rights, be entitled to a fair trial and be defended by an attorney.

Part of the resistance on the part of the TNI could be historical. During the New Order, the military was above the police in the hierarchy of defense forces. It may be a psychological shock for soldiers and officers to have the police investigating, arresting and detaining them in the cases involving non-military crimes. For more than three decades under Soeharto, the military had its own courts to try officers and soldiers no matter what kind of crime was involved.

If the 2004 law and the 2000 MPR decree are not enforced now, when can we put the military fully under the civilian judicial system as practiced in other democratic countries?

Subjecting military personnel to civilian procedures is seen in other laws passed in recent years. For example, under the antiterrorism law, the police have the power to arrest and detain suspects in terrorist acts, whether civilian or military. Also, under the law on the human rights court, TNI officers and soldiers who commit gross human rights violations such as crimes against humanity and genocide will be adjudicated by a civilian court, not by a military tribunal. And although it was controversial and showed a number of weaknesses, the ad hoc Human Rights Court adjudicated gross human rights violations committed by TNI officers in East Timor.

Admittedly, it takes time for TNI officers and soldiers to adjust to the new democratic, legal and political environment after the reformasi era. But returning to the New Order system would be a setback in the country's effort to reform the military, long considered an omnipotent group answerable to no one in Indonesian society.

Indonesian citizens need to feel confident that their military personnel submit to the same laws and procedures everyone else does when they violate the Criminal Code. The people are naturally suspicious that by allowing the TNI to handle everythingthat opens the door for the military to protect its members from punishment for crimes.

It is not good for the TNI or for Indonesian society in general that such suspicions exist. For instance, there have been cases of drug use and trafficking involving soldiers, but their trials and subsequent sentences have failed to satisfy the public hunger for justice.

Lawmakers' efforts to make TNI personnel accountable to civilian courts for non-military crimes is the right thing to do and the TNI should embrace the principle of equality before the law. This will accelerate internal reforms in the TNI and place the military on a par with other champions of democracy.

The writer (r-galingging2004@law.northwestern.edu) is a lecturer in law at Yarsi University in Jakarta and a doctoral candidate at Northwestern University School of Law in Chicago.