The Constitutional Court Calls for Amendments to the Military Courts Act Within Two Years: What Is the Issue?

On 15 October 2026, the Constitutional Court (Mahkamah Konstitusi or “MK”) granted in its entirety the petition for judicial review of Law Number 31 of 1997 on Military Courts through Decision Number 260/PUU-XXIII/2025. The MK declared the Military Courts Act conditionally inconsistent with the 1945 Constitution unless it is amended within a maximum period of two years from the pronouncement of the decision.

The case was filed by Lenny Damanik and Eva Melina Br. Pasaribu. Both challenged the provisions granting military courts the authority to adjudicate criminal offences committed by Indonesian National Armed Forces (Tentara Nasional Indonesia or “TNI”) personnel, including ordinary criminal offences. According to the Petitioners, these provisions could give rise to legal uncertainty and undermine the equal standing of all persons before the law.

This decision does not automatically abolish the military courts. Rather, the MK emphasised the need for comprehensive reform to clarify the respective jurisdictions of military courts and general courts, while ensuring that the judicial system operates independently and provides legal certainty.

What Is Actually Being Challenged?

The Petitioners sought judicial review of three provisions of the Military Courts Act, namely the phrase “criminal offence” in Article 9 point 1, Article 43 paragraph (3), and Article 127.

Article 9 point 1 provides as follows:

The courts within the military court system shall have the authority to:

1. Adjudicate criminal offences committed by a person who, at the time the criminal offence was committed, was:

a. A member of the armed forces;

b. a person who, under the law, is equated with a member of the armed forces;

c. a member of a group, service, or body, or a person who is equated with or deemed to be a member of the armed forces under the law;

d. a person who does not fall within the categories referred to in letters a, b, and c but who, by decision of the Commander-in-Chief, with the approval of the Minister of Justice, must be tried by a court within the military court system.

The issue is that this provision uses the phrase “criminal offence” without expressly distinguishing between military criminal offences and ordinary criminal offences.

As a result, the jurisdiction of military courts may extend to ordinary criminal offences committed by TNI personnel. Yet ordinary criminal offences are, in principle, governed by criminal law that also applies to civilians.

The Petitioners argued that this situation could result in different treatment of military personnel and civilians who commit similar criminal offences. They also highlighted the risk of conflicts of interest and inadequate accountability if cases that do not possess any specifically military character continue to be examined by military courts.

Meanwhile, Article 43 paragraph (3) and Article 127 govern the resolution of disagreements over whether a case should be brought before a military court or a general court. This mechanism was considered in need of revision to ensure that the determination of the appropriate judicial forum is based on clear rules.

In Decision Number 260/PUU-XXIII/2025, the MK considered that these constitutional issues concerned the independence of judicial power and the guarantee of fair legal certainty, as provided for in Article 24 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution.

Why Must the Jurisdiction of Military Courts Be Clarified?

The existence of military courts is not, in itself, contrary to the Constitution. Article 24 paragraph (2) of the 1945 Constitution expressly recognises military courts as one of the judicial systems under the Supreme Court.

However, according to the MK, this recognition does not mean that all criminal offences committed by military personnel must invariably be tried by military courts. The distinctive nature of military life does require law enforcement mechanisms that take into account military discipline, the chain of command, and the responsibilities of military personnel. Nevertheless, these distinctive characteristics must be distinguished from criminal offences that do not possess a specifically military character.

The MK also considered Article 65 paragraph (2) of Law Number 34 of 2004 on the Indonesian National Armed Forces (the “TNI Law”), which provides:

“Members of the armed forces shall be subject to the jurisdiction of military courts in cases involving violations of military criminal law and shall be subject to the jurisdiction of general courts in cases involving violations of general criminal law as provided for by law.”

This means that the legislation has distinguished the jurisdiction to try military personnel according to the type of criminal offence involved. Military criminal offences are examined by military courts, whereas ordinary criminal offences are examined by general courts.

However, Article 74 of the TNI Law provides:

Article 74

(1) The provisions referred to in Article 64 shall apply upon the enactment of the new law on Military Courts.

(2) Until the new law on military courts has been enacted, Law Number 31 of 1997 on Military Courts shall remain applicable.

This provision explains the problem. Article 65 paragraph (2) distinguishes the jurisdiction of the courts according to the type of criminal offence, but Article 74 paragraph (2) maintains the applicability of the 1997 Military Courts Act until its replacement has been enacted. Consequently, the division of jurisdiction has not yet been fully implemented through the reform of the Military Courts Act.

According to the MK, the mandate for reform has remained unfulfilled for 22 years without a comprehensive resolution. Accordingly, amendments to Law Number 31 of 1997 are necessary to clarify the definitions of military criminal offences and ordinary criminal offences, the jurisdictional boundaries between military courts and general courts, and the mechanism for resolving disagreements concerning which court has jurisdiction over a particular case.

What Must the Government and the House of Representatives Amend?

The MK considered that the issue could not be adequately resolved merely by amending a single phrase in Article 9 point 1 of the Military Courts Act. According to the Court, the phrase “criminal offence” constitutes an essential norm because it determines the substance of the other provisions of the Act as a whole. Consequently, amending that phrase alone without revising the other provisions would risk leaving the jurisdictional issues unresolved in a comprehensive manner.

Such reform should, among other things, clarify the definitions of military criminal offences and ordinary criminal offences, as well as the jurisdictional boundaries between military courts and general courts in trying TNI personnel. The MK also highlighted the need to fully integrate the military court system under the Supreme Court’s single-roof judicial administration, revise the provisions governing courts-martial in combat operations and procedural law, and establish a mechanism for resolving disagreements concerning the judicial forum with jurisdiction over a particular case, as relevant to Article 43 paragraph (3) and Article 127 of the Military Courts Act.

On the basis of these considerations, the MK held that the Military Courts Act must be comprehensively amended to ensure that the rules governing jurisdiction are consistent with the mandate of Articles 65 and 74 of the TNI Law and safeguard the independence of judicial power and fair legal certainty.

In the operative part of its decision, the MK declared Law Number 31 of 1997 inconsistent with the 1945 Constitution and conditionally without binding legal force unless it is amended within a maximum period of two years from the pronouncement of the decision. If no amendments are made within that period, the Act will be contrary to the 1945 Constitution and will have no binding legal force.

Not the Abolition of Military Courts, but the Clarification of Their Jurisdictional Boundaries

This MK decision affirms that the principal issue is not the existence of military courts, but the limits of their jurisdiction. Military courts remain constitutionally recognised, but their governing framework must be consistent with the principles of the rule of law, the independence of judicial power, and fair legal certainty.

The Government and the House of Representatives must ensure that amendments to the Military Courts Act do not merely meet the prescribed deadline, but also provide clarity regarding which courts have jurisdiction to try military personnel according to the type of criminal offence involved.