Legal Literacy - The discourse on amending the 1945 Constitution to strengthen the Indonesian Maritime Security Agency (BAKAMLA RI) has begun to emerge in recent times. This is in line with the increasing maritime security threats in Indonesia, both from within and abroad. So, what is the discourse on the 1945 Constitution amendment like? Let's take a look at the explanation in the following article.

Introduction

Indonesia is the largest archipelagic country in the world, with two-thirds of its total area consisting of oceans.

Geographically, Indonesia is located right in the middle of the intersection between the Asian and Australian continents and between the Pacific and Indian Oceans. This intersecting position causes Indonesian waters to always be busy with international trade routes, both from and to Indonesia and simply passing through (or in transit). This bustle then has implications for the vulnerability of a number of Indonesian sea areas, which then gave rise to the terminology 'Maritime Security'.

In his collection of writings published under the title 'Economic Problems in Indonesia', Dr. Sumitro Djojohadikusumo stated that “security is largely a matter of economics and perspectives for community groups in their daily lives” (Djojohadikusumo, 1951 in Djojohadikusumo, 1952) which means that economic factors are one of the determinants of security, but this statement also has the meaning that security factors are closely related to economic factors so that in maintaining the sustainability of economic activity at sea, Maritime Security needs to be a top priority.

Maritime Security Terminology

The terminology of Maritime Security is defined as a safe and controlled sea condition, free from threats of violence/crime, pollution/ecosystem destruction, and violations of the law (Kurnia, 2017). This terminology already contains ends (purpose), means (meaning), and ways (method) namely sea control as ends, free from the threat of violence/crime and pollution/destruction of ecosystems as means, and Law Enforcement as ways.

Sea Control demonstrates that a country (in this case, Indonesia) has supremacy over its maritime territory. This supremacy is demonstrated by the preservation of marine biota/resources (free from pollution/destruction of ecosystems) and the continued activity of trade/sea trading well (free from the threat of violence/crime), the end result is an increase in state revenue. Meanwhile, to realize this supremacy, Law Enforcement at Sea is needed, which can only be achieved with the presence of Law Enforcement Agencies at Sea.

In the context of law enforcement in territorial waters and jurisdictional areas, the Maritime Security Agency is formed, as stipulated in Article 59 paragraph 3 Law No. 32 of 2014 concerning Maritime Affairs.

This Law is the legal basis for the formation of Bakamla (Maritime Security Agency) of the Republic of Indonesia, which, when viewed from its historical formation, is not a completely newly formed institution but rather a strengthening of an existing institution, namely Bakorkamla (Maritime Security Coordinating Board).

Bakorkamla itself was formed on December 19, 1972, with the Joint Decree (SKB) between the Minister of Transportation, the Minister of Finance, the Minister of Defense, and the Minister of Justice. This SKB gave birth to the Maritime Security Coordinating Board (Bakorkamla), which functions to coordinate institutions that had previously handled maritime security issues, namely:

  1. Sea Transportation (under the Minister of Transportation)
  2. Customs (under the Minister of Finance)
  3. Immigration (under the Minister of Justice)
  4. Indonesian Navy (under the Minister of Defense)

To strengthen its status as an institution authorized in the field of Maritime Security, through Presidential Decree No. 81 of 2005, the Maritime Security Coordinating Board (Bakorkamla) was inaugurated as an independent institution under the Coordinating Minister for Political, Legal, and Security Affairs (Sudiro & Jupriyanto, 2022).

Therefore, the current Bakamla RI is a strengthening of Bakorkamla (after becoming an independent institution) with the elevation of the status of Presidential Decree No. 81 of 2005 to Law (namely Law No. 32 of 2014).

However, the current status of Bakamla RI is that of a non-ministerial government institution which is under and directly responsible to the President through the coordinating minister (Article 60 of Law No. 32 of 2014 concerning Maritime Affairs), which means it has a position equivalent to a Ministry.

This shows that in the realm of Maritime Security, Bakamla RI has the highest position when compared to previously existing institutions, which are one level or even two levels below the Ministry.

Maritime Law Expert Prof. Dr. Mochtar Kusumaatmadja in his collection of writings published under the title Bunga Rampai Hukum Laut [Anthology of Maritime Law] stated that:

The execution of Maritime Security tasks (constabulary function at sea) should be in one hand only, which is Bakamla (Maritime Security Agency). As a body enforcing security of sovereignty at sea, it differs from the Indonesian Navy in that the latter functions to carry out defense tasks (against external attacks) while Bakamla is a domestic security enforcer as a function of implementing sovereignty and law limited to disturbances and order that do not constitute open attacks (by other countries) from abroad.

(Kusumaatmadja, 1975 in Kusumaatmadja, 1978).

Still in the same book, he stated that

the danger of handling constabulary functions by the Indonesian Navy directly and continuously with Indonesian Navy equipment is that this method will absorb too much energy, time, and budget from the Indonesian Navy as a defense unit, which will inevitably reduce its ability as a combat unit in the true sense, because the essence of constabulary functions is different from defense functions.

(Kusumaatmadja, 1977 in Kusumaatmadja, 1978).

These two statements provide two meanings, namely Bakamla RI as the sole Executor of Maritime Security Tasks (constabulary function at sea) which is also referred to as single agent multitasking (SAMT) and the difference between the Maritime Security function and the Defense function.

Problem

In practice, Law No. 32 of 2014 cannot yet fully serve as a basis law for the existence of Bakamla RI as a Law Enforcement at Sea.

The Law only clearly stipulates the establishment of Bakamla RI (Article 59) and the status of Bakamla RI as a non-ministerial government institution that is under and directly responsible to the President (Article 60).

Instead, the point that should be the main discussion is Bakamla RI as the sole Executor of Maritime Security Duties (constabulary function at sea) which is also referred to as single agent multitasking (SAMT) and an explanation regarding the difference between the function of Maritime Security and the function of Defense explicitly does not yet exist.

Even related to the first point, as a matter of legal fact, there is overlap of authority between Bakamla RI and pre-existing institutions, specifically the Sea and Coast Guard (KPLP) and the Supervisors of Marine and Fisheries Resources (PSDKP). Although structurally Bakamla RI occupies the highest position (Bakamla RI is equivalent to the Ministry, PSDKP is one level and KPLP is two levels below the Ministry), both institutions have an equal legal basis, namely Law No. 17 of 2008 concerning Shipping (KPLP) and Law No. 45 of 2009 concerning Fisheries (PSDKP). In addition, these two laws have articles that intersect with Law No. 32 of 2014 (Sudiro & Jupriyanto, 2022).

However, efforts to draft a new law, namely a law that specifically discusses Maritime Security (or even a special law for Bakamla RI) will face obstacles when associated with Hans Kelsen's Theory of the Hierarchy of Legal Norms, namely that legal norms are tiered and layered in a hierarchy (systematic order), in the sense that a lower norm applies, originates and is based on a higher norm (Hanafi & Firdaus, 2022).

This theory is in accordance with the principle of positive law, namely the Principle of Gradation of Laws and Regulations which reads “Lex Superior Derogat Legi Inferiori” (higher-level laws and regulations override lower-level laws and regulations) (Manan, 2004). This means that every law drafting process must refer to the 1945 Constitution, which occupies the highest position in the Hierarchy of Laws and Regulations as stated in Law No. 12 of 2011 concerning Laws and Regulations Article 7 paragraph 1.

The problem that arises is that the 1945 Constitution, specifically Chapter XII which discusses State Defense and State Security, has not explicitly provided space for the restructuring of the state security system, including matters of Law Enforcement at Sea.

Chapter XII only contains one article, namely Article 30, which since the second amendment (in total, the 1945 Constitution has undergone four amendments) has four paragraphs. The results of this amendment have not explicitly provided space for the restructuring of the state security system, including matters of Law Enforcement at Sea. Paragraph 2 only mentions: “The Police of the Republic of Indonesia, as the main force, and the people, as the supporting force” but without mentioning the existence of other security institutions outside the Indonesian National Police but also holding a position as the main force.

Paragraph 3 mentions the division of the Indonesian National Army (as the main defense force) into three dimensions, namely the Army, Navy and Air Force, but paragraph 4 only mentions the Indonesian National Police as a state instrument that maintains public security and order without mentioning the existence and position of other security institutions (in this case, Law Enforcement Institutions at Sea). Therefore, efforts to strengthen Law Enforcement at Sea through strengthening regulations (in the sense of drafting laws) will potentially encounter obstacles because they conflict with the 1945 Constitution, which occupies the highest position in the Hierarchy of Laws and Regulations.

This issue then underlies the discourse on the fifth amendment to the 1945 Constitution in order to strengthen Bakamla RI as a Law Enforcement Agency at Sea, which is the theme of this research. This discourse is based on the inevitability that a country has basic state regulations (a constitution) that are dynamic along with the dynamics experienced by a country as an implication of the imperfections of its constitution (Nugraha, 2018).

The dynamic that occurs in this case is the need for a country (Indonesia) to have a Law Enforcement Agency at Sea, while the imperfection of the constitution is caused by the absence of a constitutional content draft that forms the basis for changes (preliminary) to be discussed and debated by the public. Content draft referred to is a paradigm that forms the framework (overview) regarding the exposition of broad and in-depth state ideas regarding the relationship between the state and its citizens (Ahmad & Nggilu, 2019).

Therefore, this research focuses on the discourse on the fifth amendment to the 1945 Constitution as an initial step in drafting a constitutional content draft related to Law Enforcement at Sea in line with the dynamics that occur in Indonesian waters.

Discourse on the Amendment of the 1945 Constitution

Discourse is the exchange of ideas verbally (KBBI Daring [Online Indonesian Dictionary]). However, in essence, discourse can be oral (verbal) or written (Muis, 2014) so there are two types of discourse, namely oral discourse and written discourse (Widiatmoko, 2015).

Thus, the meaning of the term 'discourse on the fifth amendment to the 1945 Constitution' is that this research is a written presentation of ideas or ideas regarding the possibility of a fifth amendment to the 1945 Constitution in an effort to strengthen Bakamla RI as a Law Enforcement Agency at Sea which aims to realize Indonesia's State Goals.

This can be stated with the terminology ends, means, and ways namely Indonesia's State Goals as ends, efforts to strengthen Bakamla RI as a Law Enforcement Agency at Sea as means, and the Fifth Amendment to the 1945 Constitution as ways.

Amendment Mechanism of the 1945 Constitution

The mechanism for amending the 1945 Constitution is stated in Chapter XVI, Article 37, paragraphs 1-5 of the 1945 Constitution (this provision is also the result of an amendment, namely the fourth amendment). Proposals for changes (amendments) to the articles of the 1945 Constitution can be accepted if submitted by at least one-third of the total members of the People's Consultative Assembly (MPR). The MPR has 711 members, consisting of 575 members of the House of Representatives (DPR) and 136 members of the Regional Representative Council (DPD). Based on this composition, a mapping can be done of the number of DPR and DPD members who have an urgency towards strengthening Bakamla RI as a Law Enforcement Agency at Sea or towards Law Enforcement at Sea.

Based on the assumption (made independently by the author) regarding several Commissions (for the DPR) and Provinces (for the DPD) that have a direct urgency towards Law Enforcement at Sea, the percentage of DPR and DPD members who have an urgency towards Law Enforcement at Sea is 37.27%. This figure (37.27%) is greater than one-third (approximately 33.33%), so if 37.27% of MPR members jointly propose changes to Article 30 of the 1945 Constitution related to Law Enforcement at Sea, the proposal meets the requirements to be put on the agenda in the MPR Session (according to the 1945 Constitution Article 37 paragraph 1). The next mechanism is carried out according to applicable regulations, namely the Session must be attended by at least two-thirds of the MPR members and approved by at least 50%+1 of all MPR members.

Closing

In conclusion, the conclusion of this article is stated as follows:

  1. The discourse on the fifth amendment to the 1945 Constitution in order to strengthen Bakamla RI as a Law Enforcement Agency at Sea, which aims to realize the National Goal of Indonesia, can be expressed in the terminology of ends, means, and ways, namely the National Goal of Indonesia as ends, efforts to strengthen Bakamla RI as a Law Enforcement Agency at Sea as means, and the Fifth Amendment to the 1945 Constitution as ways.
  2. The proposal for changes (amendments) to the articles of the 1945 Constitution (related to Law Enforcement at Sea) can be accepted if submitted by at least one-third of the total members of the People's Consultative Assembly (MPR), namely members of the DPR (per commission) and DPD (per region) who have an urgency towards efforts to strengthen Bakamla RI as a Law Enforcement Agency at Sea or towards Law Enforcement at Sea efforts. The next mechanism is that the Session must be attended by at least two-thirds of the MPR members and approved by at least 50%+1 of all MPR members.
  3. When calculated, the percentage of DPR and DPD members who have an urgency towards Law Enforcement at Sea is 37.27%. This figure is greater than one-third (approximately 33.33%), so if 37.27% of MPR members jointly propose changes to Article 30 of the 1945 Constitution related to Law Enforcement at Sea, the proposal meets the requirements to be included in the MPR Session agenda.