Presentation on theme: "Law on the Governing of Aceh - A Brief Review and Assessment - Bernhard May."— Presentation transcript:
Law on the Governing of Aceh - A Brief Review and Assessment - Bernhard May
Background: Law 44/1999 Law 44/1999 on the Implementation of the Specialty of the Special Province of Aceh was enacted on 4 October 1999, with specialty meaning –to lead a religious life (the right to introduce Syariat Islam) –to implement traditional norms and culture (adat) –to implement education including elements of Syariat Islam –to give the religious (Islamic) leaders a role in policy making (creation of a board of religious leaders)
Background: Law 18/2001 (1/2) Law 18/2001 on Special Autonomy for The Special Province of Aceh as Province of Nanggroe Aceh Darussalam was enacted on 9 August, 2001: –Assignment of government functions as far as not specifically regulated in the law, follows existing regulations (Law 22/1999 and GR 25/2000 on the Distribution of Functions between Central Government and Provinces) –Revenue sharing different from general arrangements (Law 25/1999): 20% of personal income tax revenues (others = 0); for the duration of 8 years 55% of oil revenues in addition to the 15% granted to other regions), and 40% of natural gas revenues in addition to the 30% granted to other regions, after 8 years reduced to additional 35% respectively 20%
Background: Law 18/2001 (2/2) –Establishment of Wali Nanggroe as a (non-political) institution to unify the people of Aceh and provide guidance on traditional norms and culture –Organization of the elections of Governor/Bupati/Walikota by KIP (Independent Election Commission) consisting of the KPU (General Elections Commission) and representatives of the people –Agreement of the Governor to the appointment of police chief needed –Establishment of Syariyah Court (Mahkamah Syariyah) to practice islamic law for followers of Islam in the framework of the national law –All stipulations regarding special authorities of NAD to be followed up by Qanun (regional bylaw), without any reference to existing laws and regulations
The Peace Accord of Helsinki 15 August 2005: Memorandum of Understanding Between The Government of the Republic of Indonesia and the Free Aceh Movement (MoU) signed in Helsinki by the Indonesian Minister of Law and Human Rights, Hamid Awaludin, and Malik Mahmud for the GAM Leadership, witnessed by Martti Ahtisaari, Former President of Finland and Chairman of the Board of Directors of the Crisis Management Initiative as Facilitator of the negotiation process between GOI and GAM
MoU: The Law on the Governing of Aceh According to the MoU, a new Law on the Governing of Aceh (LOGA) will be promulgated and will enter into force as soon as possible and not later than 31 March 2006 The MoU (Article 1.1.2.) stipulates 4 principles the new law is supposed to be based on (meaning the law does not have to follow precisely the wording of the MoU).
Translation of the MoU into the Draft LOGA In elaborating the GOIs draft LOGA, the drafting team has undertaken –to follow as much as possible the draft LOGA that was prepared by the DPRD of the Province of Aceh based on inputs by the provincial government and various stakeholders in Aceh and Jakarta, and –to formulate its own draft by taking into consideration the principles mentioned in the MoU and the perceived meaning of the MoU, and wherever possible the wording of the MoU, however The MoU is not regarded as a legally binding source of the LOGA, therefore the Parliament was free to make its decisions independent of the MoU in line with the Constitution and existing laws.
MoU: Principles of LOGA (1/8) 1 st principle (Article 1.1.2. a.): Aceh will exercise authority within all sectors of public affairs….except in the fields of foreign affairs, external defense, national security, monetary and fiscal matters, justice and freedom of religion, the policies of which belong to the Government of the Republic of Indonesia in conformity with the Constitution. Has been translated into the LOGA (§ 7) by saying: The Governments (pemerintahan) of Aceh and Kabupaten/Kota have the authority to regulate and implement government functions in all public sectors except government functions that are the authority of the central government. Authorities of the central government comprise government functions that are of national character, foreign affairs, defense, security, justice, monetary affairs, national fiscal affairs and certain functions in the field of religion. The LOGA differs from the above principle because of problems, some of which are discussed in the following:
MoU: Principles of LOGA (2/8) Problems related to the 1st principle (1): –This principle was obviously misinterpreted by GAM, other stakeholders in Aceh and even some DPR fractions, who believe that according to the MoU, Aceh will have the right to exercise all authorities within all sectors of public affairs, meaning that the central governments authority in Aceh would be restricted to the six sectors mentioned in the MoU.
MoU: Principles of LOGA (3/8) Problems related to the 1 st principle (continued): While the wording of the MoU does not justify this interpretation, such an arrangement regarding central government functions in Aceh would also be unrealistic, because there are still numerous functions outside the six sectors mentioned in the MoU that need to be regulated and/or even implemented by the central government if they constitute constitutional obligations of the central government the implementation of which has been decentralized, like provision of certain basic services at certain quality standards to all citizens of the nation are related to international conventions which have been translated into national law the implementation of which has been delegated to sub-national governments, like conventions on climate, natural resources and human rights, or if their implementation by the government of Aceh would effect other regions of Indonesia or other countries (create so called externalities), like managing maritime resources outside the 12-mile zone, air traffic regulation and control, providing postal services, regulation of domestic and international trade, regulating and controlling the use of nuclear energy, pandemic disease control etc.
MoU: Principles of LOGA (4/8) Perceived solution of the aforementioned problems in the LOGA as approved by the DPR (1): –§ 7,2: Government functions (urusan) of national character were added as a field of exclusive authority of the central government, with the elucidations saying that such functions include policies in the field of national planning, policies in the fields of national development control, fiscal balance, state administration, state economic institutions, guidance and empowerment of human resources, strategic high technologies, conservation and national standardization, where policies mean the authority of the central government to conduct guidance, facilitation, and the setting and implementation of government functions of national character.include policies in the field of national planning, policies in the fields of national development control, fiscal balance, state administration, state economic institutions, guidance and empowerment of human resources, strategic high technologies, conservation and national standardization, where policies mean the authority of the central government to conduct guidance, facilitation, and the setting and implementation of government functions of national character. –§ 270,1: Central government authorities (kewenangan) of national character and the implementation of this law as far as it refers to the authorities of the central government are regulated by (dengan) laws and regulations.
MoU: Principles of LOGA (5/8) Perceived solution of the aforementioned problems in theLOGA as approved by the DPR (continued): –§ 11,1: The central government sets norms, standards and procedures and conducts the supervision over the implementation of government functions by the Government of Aceh and Kabupaten/Kota governments (elucidations: norms are rules or stipulations that are used as arrangements (tatanan) in implementing regional governance; standards are references (acuan) that are used as directives (patokan) in implementing regional governance; procedures are methods or modes (tata cara) for implementing regional governance. The way this is formulated suggests a broad range of authorities of the central government over the implementation of regional governance in Aceh, which on the other hand is supposed to be constrained by –§ 11,2: Norms, standards and procedures do not reduce the authorities which the Government of Aceh and the Kabupaten/Kota governments have as laid down in § 7,1.
MoU: Principles of LOGA (6/8) Other problems related to the 1 st principle: –The addition of the term external to the term defense and of the term national to the term security is regarded as not being in line with existing laws and regulations and has therefore not been adopted both by the GOI drafting team and by the DPR –The term freedom of religion does not constitute a government authority as such; therefore it is not clear what the exclusive rights of the central government in this field are supposed to be, considering the fact that Aceh has been granted far-reaching authority in this filed (the right to introduce Syariyah and regulate its implementation by its own bylaws); the LOGA assigns certain government affairs in the field of religion to the central government (no further explanation, but probably the same as in Law 32/2004: very unclear except for official acknowledgement of a religion)
MoU: Principles of LOGA (7/8) The 2 nd principle (Article 1.1.2. b. of the MoU): International agreements entered into by the GOI which relate to matters of special interest to Aceh will be entered into in consultation with and with the consent of the legislature of Aceh; and the 3 rd principle (Article 1.1.2. c of the MoU): Decisions with regard to Aceh by the legislature of the Republic of Indonesia will be taken in consultation with and with the consent of the legislature of Aceh are constitutionally problematic as they would infringe upon the constitutional authorities of the President respectively those of the DPR as the sovereign legislative body representing all people of Indonesia, and might have lead to a judicial review by the Constitutional Court. The principles have therefore been translated into the LOGA by saying planned agreements/decisions and in consultation with and with the considerations of DPRA (§ 8).
MoU: Principles of LOGA (8/8) The 4 th principle (Article 1.1.2. d. of the MoU): Administrative measures undertaken by the Government of Indonesia with regard to Aceh will be implemented in consultation and with the consent of the head of the Aceh administration Has been translated into the LOGA by saying: Administrative policies of the central government that are directly related to the Government of Aceh will be made in consultation and with the considerations (not the consent) of the Governor This adjustment was seen as necessary because the governor, neither as head of the region nor (and even less so) as the representative of the central government in the region can have the authority to approve central government decisions. A judicial review against the regulation as proposed in the MoU would have been very likely.
MoU: The name of Aceh The MoU (Article 1.1.3) stipulates: The name of Aceh and the titles of senior elected officials will be determined by the legislature of Aceh after the next elections Has been accommodated in the LOGA (§ 251) by saying: The name of Aceh as a province within the system of the Unitary State of Indonesia based on the Basic Law of the Republic of Indonesia of 1945, and the titles of senior elected officials will be determined by the DPRA after the elections of 2009., and The name of Aceh as a province within the system of the Unitary State of Indonesia based on the Basic Law of the Republic of Indonesia of 1945, and the titles of senior elected officials will be determined by the DPRA after the elections of 2009., and Before the above stipulation is implemented, the Province Nanggroe Aceh Darussalam continues to be used as the name of the province. Before the above stipulation is implemented, the Province Nanggroe Aceh Darussalam continues to be used as the name of the province.
MoU: Kanun Aceh The stipulation of the MoU (Article 1.1.6) that Kanun Aceh will be re-established for Aceh respecting the historical traditions and customs of the people of Aceh and reflecting contemporary legal requirements of Aceh is worded so that it opens up the possibility for multiple interpretation: GAM and some other stakeholders in Aceh seem to interpret it in such a way that the Qanun is a regulatory instrument that is independent of any other laws and regulations, except for the LOGA itself, while the LOGA puts it at an equal level with usual regional regulations (Peraturan Daerah = Perda). is worded so that it opens up the possibility for multiple interpretation: GAM and some other stakeholders in Aceh seem to interpret it in such a way that the Qanun is a regulatory instrument that is independent of any other laws and regulations, except for the LOGA itself, while the LOGA puts it at an equal level with usual regional regulations (Peraturan Daerah = Perda).
MoU: Wali Nanggroe The MoU (Article 1.1.7) stipulates: The institution of Wali Nanggroe with all its ceremonial attributes and entitlements will be established. The LOGA (§ 96) states among others: The Wali Nanggroe institution constitutes a traditional (adat) leadership as unifier of the people, which is independent, and has the authority to guide and supervise the adat institutions, award titles of honor and exercise adat rites. The Wali Nanggroe is neither a political nor a government institution. The Wali Nanggroe institution is headed by a Wali Nanggroe who is an independent individual. All other details regarding candidates, elections, electorate, term in office, status, finance etc. are regulated by a provincial Qanun. Note: The institution of Wali Nanggroe had actually already been introduced by Law 18/2001.
MoU: Political Participation (1/2) The MoU (Article 1.2.1.) stipulates that As sson as possible and not later than one year from the signing of this MoU, GOI agrees to and will facilitate the establishment of Aceh-based political parties that meet national criteria …GOI will create within one year or at the latest 18 months from the signing of the MoU the political and legal conditions for the establishment of local political parties in Aceh in consultation with DPR The DPR followed the proposal of the GOI drafting team and included regulations on local political parties right into the LOGA instead of creating the legal conditions later by revising the Law on Political Parties, with the stipulation that the implementing Government Regulation (PP) will be issued at the latest by February 2007 (§ 257).
MoU: Political Participation (2/2) The MoU (Article 1.2.2) stipulates that Upon the signature of this MoU, the people of Aceh will have the right to nominate candidates for the position of all elected officials to contest the elections in Aceh in April 2006 and thereafter, and Free and fair local elections will be organised under the new LOGA to elect the head of the Aceh administration and other elected officials in April 2006 as well as the legislature of Aceh in 2009 This stipulation is interpreted by GAM, other stakeholders in Aceh and many observers as an agreement to allow independent candidates to run in local elections. After serious internal discussions, this interpretation of the MoU was accepted both by the GOI drafting team and DPR and was accommodated in the LOGA, however with the provision that independent candidates will only be allowed for the first elections after the enactment of the LOGA (§ 256).
MoU: Foreign Loans The MoU (Article 1.3.1) stipulates that Aceh has the right to raise funds with external loans. Has been adopted in the LOGA by saying: The Government of Aceh and Kabupaten/Kota governments can obtain loans from the (central) government that originate from foreign funds or from other sources than foreign loans, with the approval of the Minister of Finance after receiving the considerations of the Minister of Home Affairs. (§ 186, 1), and …further stipulations will be regulated by (provincial) Qanun based on laws and regulations (§ 186, 3) While the wording of the MoU suggests that the Government of Aceh could directly borrow from foreign lenders (which would be a marked difference to the regulations that apply for other regions), the LOGA limits the possibilities of foreign loans to the same procedures that apply in general, namely borrowing through the central government (according to Law 33/2004).
MoU: Interest Rates The MoU (Article 1.3.1.) stipulates that Aceh has the right to set interest rates beyond that set by the Central Bank of the Republic of Indonesia Has been translated into the LOGA by saying (§ 196): The Government of Aceh has the authority to issue regulations on the provision of credits by banks and non-bank financial institutions in Aceh, as long as they are not in contradiction to laws and regulations, and The Government of Aceh can set certain interest rates after having agreed on it with the concerned banks and non-bank financial institutions, and The Government of Aceh can bear the burden of the difference in interest rates in favor of certain development programs that have been agreed upon by DPRA. The stipulation of the MoU (the purpose of which was not quite clear from the outset) has been translated into a regulation that may not be relevant in reality.
MoU: Taxes The MoU (Article 1.3.2.) stipulates: Aceh has the right to set and raise taxes to fund official internal activities Has been regulated in the LOGA in line with the existing regulations of Law 32/2004 on Regional Government and Law 33/2004 on the Fiscal Balance between the Centre and the Regions, which together with Law 34/2000 on Regional Taxes and Levies allow all provincial and district governments to set their own taxes based on criteria given in the Law 34/2000. While LOGA stipulations can be seen as being in line with the MoU, this may not hold true any more once the revision of Law 34/2000 has been enacted, which will most likely cancel the regions right to set own taxes.
MoU: Trade, Foreign Direct Investment and Tourism The MoU stipulates that Aceh has the right to conduct trade and business internally and internationally and to seek foreign direct investment and tourism to Aceh Has been adopted in the LOGA by saying: The people in Aceh can conduct trade and investment internally and internationally according to laws and regulations ( § 165, 1), and The Government of Aceh and the Kabupaten/Kota governments can according to their authority attract foreign tourists and can issue related licenses for investments in form of domestic and foreign investments as well as export and import licenses following national norms, standards and procedures ( § 165, 2). The Government of Aceh and the Kabupaten/Kota governments can according to their authority attract foreign tourists and can issue related licenses for investments in form of domestic and foreign investments as well as export and import licenses following national norms, standards and procedures ( § 165, 2). The MoU has been fulfilled; however, according to these provisions, Aceh will in practical terms have the same rights in this field as those given to all other regions.
MoU: Living Natural Resources in the Sea (1/3) The MoU stipulates that Aceh will have the jurisdiction over living natural resources in the territorial sea surrounding Aceh (where territorial obviously is meant to be identical with the 12 mile zone) Has been translated into the LOGA (§ 156) by saying: The Government of Aceh and the Kabupaten/Kota governments manage natural resources in Aceh on land and in the sea of the Aceh region according to their authority, where management means planning, implementation, as well as utilization and supervision of business activities that can be exploration, exploitation and cultivation, where natural resources include the mining sector, which comprises the mining of minerals, coal and geothermal energy, as well as the sectors of forestry, agriculture, fisheries and maritime resources… the business activities (mentioned above) can be performed by state enterprises, regional enterprises, cooperatives, national and foreign private companies, however in implementing above stipulations, standards, norms and procedures set by the central government have to be followed.
MoU: Living Natural Resources in the Sea (2/3) The LOGA stipulates further (§ 162): The Government of Aceh and the Kabupaten/Kota Governments have the authority to manage living natural resources in the sea of the Aceh region, where managing means conservation and management of natural resources in the sea; regulating the administration and the licensing for fishing and aquaculture; regulating spatial planning in the sea, in coastal areas and on small islands; enforcing regulations that have been issued for the maritime territory that is under their authority; safeguard traditional rights of the sea and security of the sea; and joining in safeguarding the sovereignty of the Republic of Indonesia, and The Government of Aceh and Kabupaten/Kota have the authority to issue licenses for fishing and for the utilization of other maritime resources in the sea surrounding (!) Aceh according to their authority.
MoU: Living Natural Resources in the Sea (3/3) The authorities given to Aceh by the LOGA to manage its territorial sea are basically the same that apply to all regions according to Law 32/2004 (§ 18), the implementation of which is to follow further implementing laws and regulations The LOGA does (different to Law 32/2004) neither in § 156 nor in § 162 stipulate that there will be further implementing regulations required, however the authorities of Aceh are in fact also limited by –the aforementioned stipulations of § 156 (6) on standards, norms and procedures in managing natural resources, and –the stipulations of § 165 (3), which allow the Government of Aceh and Kabupaten/Kota to issue all kinds of licenses (including fisheries in the 12-mile zone for the province, and in one third of this zone for Kabupaten/Kota) according to their authority following national norms, standards and procedures.
MoU: Revenues from Natural Resources The MoU stipulates that Aceh is entitled to retain seventy (70) per cent of the revenues from all current and future hydrocarbon deposits and other natural resources in the territory of Aceh as well as in the territorial sea surrounding Aceh Has been accommodated in the LOGA regulations on shared revenues ( § 181, 1 b) which stipulates that Aceh receives: 80 % from Forestry, Fisheries, General Mining, Geothermal Energy (like all other regions, in line with regulations of Law 33/2004 on Fiscal Balance Between the Central Government and the Regions) 70% from oil revenues (other regions 15.5%) 70% from gas revenues (other regions 30.5%) The wording of the MoU is frequently interpreted as the right of Aceh to directly keep its share of revenues generated in Aceh and forward the remainder to the central government, however the LOGA (§ 181, 2) foresees the same process for revenue collection by the central government and redistribution to Aceh as for the other regions (albeit with greater transparency, as will be seen later).
MoU: Seaports and Airports (1/7) The MoU stipulates that Aceh conducts the development and administration of all seaports and airports within the territory of Aceh. Has been translated into several paragraphs of the LOGA in a somewhat confusing manner in § 19, § 172, § 173 and § 254.
MoU: Seaports and Airports (2/7) LOGA § 19 says: Kabupaten and Kota governments have the authority to operate seaports and general airportsKabupaten and Kota governments have the authority to operate seaports and general airports The said seaports and airports are those that have been operated by the central government before this law became effective The Government of Aceh coordinates with the Kabupaten/Kota governments in operating the said seaports and general airports The said seaports and general airports can be operated by Regional Enterprises –With the elucidations saying: that the regulation refers to all seaports (including inter- insular ports) and general airports (including pioneer airstrips) that have been operated by the central government, except for those which at the time of the enactment of the law have been operated by BUMN.
MoU: Seaports and Airports (3/7) LOGA § 172 says: The Government, the Government of Aceh and the Kabupaten/Kota governments can build seaports and general airports in Aceh, and The management of seaports and airports built by the Government of Aceh and by Kabupaten/Kota governments will be implemented by the Government of Aceh and/or by Kabupaten/Kota governments, and The construction and management of seaports and airports is further regulated by Qanun in accordance with existing norms, standards and procedures
MoU: Seaports and Airports (4/7) LOGA § 173 says: Seaports and general airports which at the time when this law becomes effective are being managed by state enterprises (BUMN) will be operated in cooperation with the Government of Aceh and/or Kabupaten/Kota governments The said cooperation can be implemented in form of a statutory enterprise according to existing norms, standards and procedures The cooperation in managing seaports and general airports which had been operated by BUMN is executed according to existing norms, standards and procedures
MoU: Seaports and Airports (5/7) In addition, LOGA § 254 says: The transfer of authorities for operating seaports and general airports from the central government to Kabupaten/Kota governments as regulated in § 19 will be implemented at the latest at the beginning of the FY 2008, and The operation of seaports and general airports that existed at the time when this law became effective, which according to § 173 has to be executed by BUMN in cooperation with the Government of Aceh and Kabupaten/Kota governments, will be implemented at the latest at the beginning of FY 2008
MoU: Seaports and Airports (6/7) In summary, the LOGA stipulates that After the enactment of the law, the provincial and district governments can build and operate seaports and general airports according to national norms, standards and procedures Seaports and general airports that have been operated by the central government (not through BUMN) at the time of the enactment of the law have to be handed over to district governments at the latest by the beginning of 2008, and Seaports and general airports that have been operated by BUMN at the time of the enactment of the law have to be operated jointly by the BUMN and provincial/district governments, starting at the latest by the beginning of 2008.
MoU: Seaports and Airports (7/7) The wording of the MoU has been interpreted by various stakeholders in Aceh as the right of Aceh to take over all existing seaports and airports, while the LOGA clearly limits this right to seaports and airports that have been operated by the central government on its own (not through BUMN), of which there are only a few in Aceh.
MoU: Free Domestic Trade The MoU stipulates that Aceh will enjoy free trade with all other parts of the Republic of Indonesia unhindered by taxes, tariffs or other restrictions Has been accommodated in the LOGA (§ 163) by saying: The Government, the Government of Aceh and the Kabupaten/Kota governments guarantee the implementation of internal trade in Aceh free of any restrictions, and that The inhabitants of Aceh can freely perform trade in the territory of Indonesia by land, sea and air unhindered by taxes, tariffs and other trade restrictions, except for trade with regions that are separated from the customs territory of Indonesia.
MoU: Access to Foreign Countries The MoU stipulates that Aceh will enjoy direct and unhindered access to foreign countries, by sea and air. Has been vaguely translated into the LOGA (§ 165,1) by saying: The inhabitants of Aceh can implement trade and investments, both domestic and international, according to laws and regulations.
MoU: Transparency of Revenue Collection and Allocation The MoU stipulates that GOI commits to the transparency of the collection and allocation of revenues between the Central Government and Aceh by agreeing to outside auditors to verify this activity and to communicate the results to the head of the Aceh administration Has been translated into the LOGA (§ 194) by saying: The central government will apply the principle of transparency in collecting and allocating revenues that originate from Aceh, and In implementing transparency, the Government of Aceh can use an independent auditor that will be nominated by the Board of Auditors (BPK) to perform audits according to laws and regulations, (elucidation: independent auditors are specialists and/or auditors from outside BPK who work for and in the name of BPK), and BPK submits the results of the audits to the central government and to the Government of Aceh.
MoU: Human Rights The MoU stipulates that GOI will adhere to the United Nations International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights Had been accommodated in the draft LOGA as submitted to the DPR, by saying: The central government, the government of Aceh and the Kabupaten/Kota governments are obliged to fulfill, promote and enforce human rights as stipulated in international covenants that have already been translated into laws and regulations, and This obligation includes the acknowledgement and protection of minority groups and tribes in Aceh. This provision has not been maintained in the LOGA as approved by the DPR, because it is a general obligation of the GOI that is not only related to Aceh, however The LOGA contains an extensive list of human/civil rights (equality before the law, freedom of speech, freedom of the press, freedom of association, freedom to demonstrate etc. etc.)
MoU: Human Rights Court (1/4) The MoU stipulates that A Human Rights Court will be established for Aceh Has been fully accommodated in the draft LOGA by saying in § 228: In order to investigate, pass judgment on and resolve cases of human rights violations that have occurred after this law has become effective, a Human Rights Court will be established in Aceh The judgments passed by the Human Rights Court impose among others compensation, restitution, and/or rehabilitation for the victims of human rights violations. …and in § 259: The Human Rights Court has to be established at the latest one year after this law has become effective.
MoU: Human Rights Court (2/4) Even though the stipulations of the MoU have clearly been fulfilled by the LOGA, the regulations on the Human Rights Court have met with criticism by various parties for 1. the lack of provisions for retro-active justice 2. the lack of provisions for punishments of perpetrators of human rights violations. In assessing the regulations on the Aceh Human Rights Court, the following facts have to be taken into consideration:
MoU: Human Rights Court (3/4) The Law 26/2000 on the Human Rights Court continues to apply for Aceh in line with the stipulation of § 269 of the LOGA that all laws and regulations that existed at the time the LOGA became effective will continue to apply as long as they are not in conflict with the LOGA. As the LOGA does not stipulate that the Human Rights Court is established by the LOGA (different from the Truth and Reconciliation Commission), and does not foresee a specific implementing regulation on the Human Rights Court, it must be assumed that the establishment of the court will follow the regulations of Law 26/2000. As the Law 26/2000 foresees the establishment of a Human Rights Court in Medan with jurisdiction over Aceh, the Law 26/2000 must possibly be amended to provide for the establishment of a Human Rights Court in Aceh
MoU: Human Rights Court (4/4) The functions of the future Human Rights Court in Aceh would according to aforementioned conclusions follow the regulations of the Law 26/2000, which provide for severe punishments for human rights violations (including capital punishment); this would not be in contradiction to the LOGA, as it leaves the possibility for other sanctions than compensation, restitution, and/or rehabilitation open. Regarding retro-active justice, the Law 26/2000 foresees that severe human rights violations that occurred before the enactment of the law (23 November 2000) will be treated by Ad-hoc Human Rights Courts, which can be established upon the proposal of the DPR by Presidential Decree; the procedures of the ad-hoc courts are the same as those of the regular Human Rights Courts. The problem that may arise here is that human rights violations that occurred between November 2000 and the time when the Aceh Human Rights Court is established, may not be covered by the possibility of retro-active justice, unless an amendment of Law 26/2000 provides for it.
MoU: Truth and Reconciliation Commission The MoU stipulates that A Commission for Truth and Reconciliation will be established for Aceh by the Indonesian Commission of Truth and Reconciliation with the task of formulating and determining reconciliation measures Has been accommodated in § 229 of the LOGA by stipulating: In order to seek for truth and reconciliation, a Truth and Reconciliation Commission in Aceh is established by this law The Truth and Reconciliation Commission in Aceh is an inseparable part of the Truth and Reconciliation Commission The Truth and Reconciliation Commission in Aceh works on the basis of laws and regulations (elucidation: Law 27/2004 on the Truth and Reconciliation Commission), and In dealing with cases of human rights violations in Aceh, the Truth and Reconciliation Commission in Aceh can take Adat principles into consideration that are still alive among the Aceh community …and in § 230 by saying that further stipulations on the election of members and the organization, procedures and financing of the commission will be regulated by a provincial Qanun based on existing laws and regulations.
MoU: The Police (1/2) The MoU (Article 4.10) states: Organic police forces will be responsible for upholding internal law and order in Aceh The LOGA (§ 204) states among others: The Police Force in Aceh constitutes part of the National Police. The police in Aceh has the task to safeguard the security and public order, enforce the law, protect, secure and serve the people, and implement other tasks which are assigned by laws and regulations Policies on public tranquility and order in Aceh are coordinated between the Head of the Aceh Police Force and the Governor In implementing duties regarding public tranquility and order, the Head of the Aceh Police Force is responsible to the Governor.
MoU: The Police (2/2) The MoU (Article 1.4.4) states: The appointment of the Chief of the organic police forces and the prosecutors shall be approved by the head of the Aceh administration. The recruitment and training of organic police forces and prosecutors will take place in consultation with and with the consent of the head of the Aceh administration in compliance with the applicable national standards. The LOGA (§ 205) states among others: The Head of the Aceh Police Force is appointed by the Head of the National Police with the approval of the Governor. The LOGA (§ 207) states among others: The Aceh Police Force selects officers taking into consideration legal norms, syariat, culture and traditional customs, and policies of the Governor of Aceh. Basic education for police candidates and general training for officers of the Aceh police force will follow a curriculum with local contents, emphasizing human rights. The education and guidance for POLRI officers who originate from Aceh is conducted nationally by POLRI. The placement of police officers from outside Aceh in Aceh is is decided upon by the Head of the National Police, taking into consideration legal norms, syariat Islam, culture and traditional customs. These arrangements of the LOGA and those in § 204 give the Governor substantially more rights regarding police matters than he/she has in other regions.
MoU: The Prosecutors The LOGA (§ 208) states: Prosecutors in Aceh constitute part of the institution of Attorney General of the Republic of Indonesia The Prosecutors in Aceh implement tasks and technical policies in the field of law enforcement including implementation of syariat Islam The LOGA (§ 209) states: The appointment of prosecutors in Aceh is conducted by the Attorney General (Jaksa Agung) with the consent of the Governor This arrangement of the LOGA gives the governor authority regarding the prosecutors in his/her region that governors in other regions do not avail of.
MoU: Military Forces (1/3) The MoU (Article 4.1.1) states: Military forces will be responsible for upholding external defence of Aceh. In normal peacetime circumstances only organic military forces will be present in Aceh The LOGA (§ 202) states: The Indonesian Armed Forces (TNI) are responsible for maintaining the security of the state and for other duties in Aceh in accordance with laws and regulations. Maintaining the security of the state comprises maintaining, protecting and securing the unity and sovereignty of the Unitary Republic of Indonesia and other duties in Aceh in accordance with laws and regulations. Other duties as mentioned above like dealing with natural disasters, constructing communication infrastructure, and other humanitarian tasks are implemented after consultations with the Governor of Aceh The members of the TNI that are on duty in Aceh must hold the universal principles of human rights in high esteem and honor the culture and traditional customs of Aceh.
MoU: Military Forces (2/3) The reference of the LOGA to existing laws and regulations, in this case the Law 34/2004 on the Indonesian Armed Forces, indicates that the TNI in Aceh will have the same duties as everywhere in the nation. The TNI in Aceh would therefore according to § 6,1,c and respective elucidations of Law 34/2004 have the same far-reaching mandate in dealing with internal security disturbances (albeit in cooperation with other institutions). The sentence that mentions other duties of the TNI that need consultations with the Governor refers only to disaster-related and humanitarian tasks of the TNI, but obviously not to the tasks related to internal security disturbances as intended in § 6,1,c of Law 34/2004.
MoU: Military Forces (3/3) The MoU (Article 1.4.5.) states: All civilian crimes committed by military personnel in Aceh will be tried in civil courts in Aceh The LOGA (§ 203) states: Criminal offences committed by members of the TNI in Aceh will be trialed in accordance with laws and regulations. Trials of members of the TNI as mentioned above are conducted openly and are open for the public unless determined otherwise by laws and regulations. The reference of the LOGA to existing laws and regulations means that (according to § 65,2 of Law 34/2004) soldiers who have committed military crimes will be trialed according to Law 31/1997 on Military Justice (which is in the process of being revised) by military courts (which according to Law 4/2004 on Judicial Authority, like all other courts, are under the Supreme Court) and those who have committed civilian crimes will be trialed by civilian courts according to existing laws.
Brief summary of some main features of the LOGA
Relationship to Other Laws The LOGA –adopts and expands the substance of Law 44/1999, which is however not being revoked by the LOGA –adopts and expands the substance of Law 18/2001, which is revoked by the LOGA –adopts large parts of Law 32/2004 on Regional Government and relevant parts of Law 33/2004 on Fiscal Balance between the Central Government and the Regions, while at the same time all stipulations of these laws apply to Aceh as well, as long as there are no deviating regulations in the LOGA –deals with the substance of numerous sectoral laws, modifying or adjusting it slightly to the Aceh situation, while at the same time all stipulations of these laws apply to Aceh as well, as long as they do not contradict the LOGA (§ 269,1). In fact, the substance taken over from other laws that apply to Aceh as well, needs not be repeated in the LOGA, but the GOI drafting team and the DPR followed the proposal from the DPRD of the Aceh Province.
The Title The title of the LOGA constitutes a translation of the title used in the original (English) version of the MoU, while the official translation of the MoU into Bahasa Indonesia says: UU tentang Penyelenggaraan Pemerintahan di Aceh The translation of the title is not a purely semantic issue, but highly political: –The English language title was chosen, because GAM and other relevant parties in Aceh want to avoid the terms province, region = daerah, provincial government and regional government (as they are used in Law 32/2004 and other laws) to clearly manifest the special character of Aceh as self governing entity = pemerintahan sendiri –The Constitution of 1945, to which the MoU and the draft LOGA refer, does not acknowledge the term self government but uses the above mentioned terminology –The title used for the LOGA could therefore only be accepted by DPR in conjunction with the definition of the term Aceh as given in the general stipulations (Ketentuan Umum) of the LOGA.
The Definition of the Term Aceh The LOGA reads: Aceh is a Province (daerah provinsi) that forms a legal community, which has a special character (bersifat istimewa) and is given special authority (kewenangan khusus) to regulate and implement its own government affairs and the interests of the local community, in accordance with laws and regulations within the system and the principles of the Unitary State of the Republic of Indonesia based on the Basic Law of the Republic of Indonesia of 1945, which is lead by a Governor. This definition declares Aceh clearly a government and administrative unit that is comparable to the other provinces of Indonesia, with the only difference that it is being given special authority. The definition may not satisfy those who tried to promote the concept of Aceh as a self governing region, but it was seen as the only compromise that can still be justified under the constitution.
Levels of Government/Administration The LOGA (§ 2) foresees the following levels of government/administration in Aceh: –Aceh (as province) consists of Kabupaten/Kota (same as other provinces) –Kabupaten/Kota consist of Kecamatan (same as other Kabupaten/Kota) –Kecamatan consist of Mukim (not existing in other regions, but comparable to Nagari in West Sumatera) –Mukim consist of Kelurahan (an administrative su-structure of Kabupaten/Kota without elected bodies, same as in other regions) and Gampong (equal to villages = desa in other regions) Note: Kelurahan have to be gradually changed into Gampong within 2 years after the law has become effective (§ 267).
Which Level Has Special Autonomy? (1/3) The LOGA contains some indications that the special autonomy status is particularly given to Aceh as a province: –The title talks about the Governing of Aceh (as a province) –The definition of Aceh as contained in the Ketentuan Umum says that Aceh (being a province) is given special authority Further indications that the province is given special jurisdiction over the Kabupaten/Kota: –According to § 13, The distribution of government functions related to the syariat Islam between the Government of Aceh and Kabupaten/Kota governments will be regulated by a Qanun of (the province of) Aceh; –According to paragraph 182,2, the Government of Aceh has the authority to manage the additional revenues from oil and gas, the allocation of which for development projects (that are implemented by the provincial government) is regulated by provincial Qanun (different from Law 18/2001, where only the distribution of the funds was supposed to be regulated by provincial Qanun); –The Special Autonomy Funds amounting to of 2% and after 15 years to 1% of the national DAU plafond, are regarded as income of the Government of Aceh, and their utilization is regulated by provincial Qanun (§ 183).
Which Level Has Special Autonomy? (2/3) On the other hand, there are stipulations that indicate that both the Province and Kabupaten/Kota have special authorities: –According to § 7,1 The governments (pemerintahan) of Aceh and Kabupaten/Kota have the authority to regulate and implement government functions in all public sectors, except for those that belong to the authority of the central government…(the six exclusive ones), and –According to paragraph 12 The governments (pemerintahan) of Aceh and Kabupaten/Kota implement government functions that belong to their authority except for those which belong to the authority of the central government as stipulated in § 7,2.and –The implementation of government functions (as stipulated above) is regulated and executed by the Government of Aceh and Kabupaten/Kota governments on their own.
Which Level Has Special Autonomy? (3/3) Other stipulations that support the perception that both levels of government have been given the same decree of autonomy: –The definition of Kabuapten/Kota in the Ketentuan Umum is the same as in Law 32/2004 and therefore indicates that they have the same status as other Kabupaten/Kota, not being hierarchically under the province as autonomous region –Throughout the whole LOGA, responsibilities in various sectors are equally given to the province and Kabupaten/Kota –Obligatory functions (urusan wajib) are assigned to both the province and Kabupaten/Kota by the LOGA (§§ 16 and 17) in the same way as it is regulated in Law32/2004 for all other regions in Indonesia.
Distribution of Government Functions (1/3) The distribution of functions between the central government and the province of Aceh as well as the districts in Aceh seems not be clearly regulated: The stipulations of § 7,1 on the central governments functions of national character in conjunction with the relevant elucidations are so general that they require a more detailed elaboration/clarification on those functions. § 270 determines that these functions will be regulated by laws and regulations. While it is not clear whether this means that existing laws and regulations will be followed or whether specific regulations (like a Government Regulation) will have to be issued, the latter will most likely apply because this is usually the case if the term dengan (by) is used.
Distribution of Government Functions (2/3) Other regulations of the LOGA underline the lack of clarity regarding the distribution of functions: The stipulations of § 11,1 in conjunction with the relevant elucidations suggest that the central government has broad authorities in setting norms, standards and procedures for the implementation of governance in Aceh. It would have been desirable to stipulate how or where these authorities are being regulated or which national regulations will be followed, however there are no such specific stipulations. § 270 determines that the implementation of the LOGA as far as it concerns central government authorities will be regulated by laws and regulations. Again, it is not clear whether this means that existing laws and regulations will be followed or whether specific regulations will have to be issued.
Distribution of Government Functions (3/3) Under the given circumstances, the most plausible assumption is that a new Government Regulation will be issued to regulate the central governments functions of national character, and that the distribution of functions between the provincial government and the Kabupaten/Kota governments will have to follow the Government Regulation on the Distribution of Government Functions between the Central Government, the Provinces and the Kabupaten/Kota (which is an implementing regulation to Law 32/2004 and is presently under preparation), as long as the LOGA does not provide for a different assignment of functions. This procedure could possibly raise questions regarding the special authorities of Aceh again.
Obligatory Functions and Minimum Service Standards The LOGA, –like Law 32/2004, lists a set of (so called) obligatory functions for the Province in § 16, and a nearly identical set of obligatory functions for Kabupaten/Kota in § 17, while adding some special obligatory functions for both levels related to the specialty of Aceh (developed from Law 44/1999) –like Law 32/2004, states that Minimum Service Standards related to obligatory functions will be set by the central government –like Law 32/2004, elaborates on (so called) voluntary functions –states that the implementation of the above mentioned functions will be further regulated by provincial Qanun for the provincial level and by Kabupaten/Kota Qanun for the district level based on (dengan berpedoman) laws and regulations The most plausible assumption is that provincial and Kabupaten/Kota Qanun will have to follow the aforementioned GR on the distribution of functions between levels of government.
Local Political Parties (1/2) Can be formed by at least 50 Indonesian citizens who are at least 21 years of age and are permanent residents of Aceh, with paying attention to (memperhatikan) a representation of at least 30% of women. The leadership of the party has to be formed with paying attention to a representation of at least 30% women. To be registered as legal entities, the party has to have chapters in at least 50% of all Kabupaten/Kota and in 25% of the Kecamatan in every of the respective Kabupaten/Kota Citizens of Indonesia who are permanent residents of Aceh and at least 17 years of age can become members of local political parties Members of local political parties can at the same time be members of national political parties
Local Political Parties (2/2) To participate in elections to provincial (DPRA) and Kabupaten/Kota (DPRK) parliaments, the local political parties must have a party chapter in at least 2/3 of all Kabupaten/Kota in Aceh and in 2/3 of the Kecamatan in each of these Kabupaten/Kota, and have at least 1/1000 of the inhabitants as members of a party chapter In order to participate in the following elections, they have to gain at least 5% of the seats in the DPRA or 5% of the seats in the DPRK, distributed over at least 50% of the Kabupaten/Kota They can nominate pairs of candidates for the positions of Governor/Bupati/Walikota if they have gained at least 15% of theseats in the DPRA or 15% or at least 15% of the votes in the DPRA elections in the respective region They can form coalitions or merge with other local political parties or national parties Local political parties to be further regulated in a Government Regulation at the latest until February 2007.
Implementation of Syariat Islam (1/2) § 125 of the LOGA: Syariat Islam as implemented in Aceh covers aqidah, syariyah and akhlak (belief, Islamic law and moral) Syariat Islam comprises religious service, Islamic family law, Islamic civil law, Islamic criminal law, Islamic judiciary, education, Islamic religious proselytizing, as well as disseminating and defending Islamic teaching. Further stipulations regarding the implementation of syariat Islam will be regulated by provincial Qanun. § 126 of the LOGA: Every follower of the islamic religion in Aceh is is obliged to adhere to syariat Islam Any person who resides in or visits Aceh must honor (menghormati) the implementation of Islamic Syariat.
Implementation of Syariat Islam (2/2) § 127 of the LOGA: The Government of Aceh and the Kabupaten/Kota governments are responsible for the implementation of Syariat Islam. The Government of Aceh and the Kabupaten/Kota governments guarantee the freedom of religion, foster religious harmony, honor the values adhered to by the religious community and protect all religious communities in worshipping according to the religion they adhere to. The construction of places of worship in Aceh must get the permission of the Government of Aceh or Kabupaten/Kota governments. Further stipulations regarding licensing of places of worship are regulated by Qanun, paying attention to laws and regulations.
The Mahkamah Syariyah (1/3) § 128 of the LOGA: Syariat Islam jurisdiction in Aceh is part of the national justice system in the field of religious justice, which is exercised by the Mahkamah Syariyah (MS) which is completely independent. The MS is the court of justice for all followers of Islam who are in Aceh. The MS has the authority to investigate, pass judgment on, decide on and resolve cases that cover the fields of family law, civil law and criminal law based on the syariat Islam. Further details regarding the three fields of law are regulated in a provincial Qanun.
The Mahkamah Syariyah (2/3) § 129 of the LOGA: In case criminal offences are being committed by two or more people together, among whom there are non-muslims, a perpetrator who is not a follower of Islam can chose and subjugate himself voluntarily to the (islamic) criminal law (jinayah). Every person who is not a follower of Islam who commits a crime which is not regulated in the general criminal law (Kitab Undang-undang Hukum Pidana - KUHP) or criminal regulations outside the KUHP will be subject to the islamic criminal law (jinayah) Inhabitants of Aceh who commit crimes outside Aceh will be subject to the KUHP.
The Mahkamah Syariyah (3/3) § 132 of the LOGA Court procedures of the MS are regulated by provincial Qanun. § 133 and 134 of the LOGA Investigations into violations of the syariat Islam as far as they concern criminal acts are undertaken by the National Police and Civil Investigators, whose recruitment, education, training and guidance is facilitated by the National Police according to laws and regulations. § 135 of the LOGA Judges of the MS are appointed by the President upon proposal by the Chairman of the Supreme Court The Chairman and the vice-chairman of the provincial MS are appointed by the Chairman of the Supreme Court, and the chairmen of the Kabupaten/Kota MS are appointed by the Chairman of the Supreme Court upon proposal by the Chairman of the provincial MS.
The Ulama Deliberation Counsil The LOGA (§ 138) states among others: An Ulama Deliberation Counsil (Majelis Permusyawaratan Ulama = MPU) is established in Aceh and in the Kabupaten/Kota whose members consists of islamic religious leaders (ulama) and muslim intellectuals who understand the Islamic religious science, paying attention to the representation of women. MPU is independent and its leadership is elected through deliberations of the Ulama MPU is positioned as partner of the Government of Aceh, the Kabupaten/Kota governments, DPRA and DPRK. The LOGA ( § 139) states among others: The MPU has the function of issuing fatwa that may be considered in regional policies in the fields of governance, development, fostering communities and economy The LOGA ( § 140) states among others … that the MPU can issue fatwa upon and without request on problems in above mentioned fields, and provides guidance over differences in opinion in the community regarding religious matters.
Economy In dealing with economic issues, the LOGA –emphasizes the aspects of sustainability, environmental protection, the welfare and the rights of the people of Aceh, particularly their right to participate in planning and development, the rights and the role of civil society organizations, the rights of workers –does not effectively expand the authority of Aceh beyond the authority given to other regions under the national decentralization policy (exception: joint management of oil and gas resources).
Education According to § 215,1 Education in Aceh is an integral part of the national education system, which is adjusted to the characteristics, potentials and needs of the local community; and According to § 216 Every inhabitant of Aceh has the right to quality and Islamic education, in line with the developments of science and technology; Education is following the principles of democracy and justice, holding in high esteem human rights, Islamic values, culture and the plurality of the nation. According to § 217,1 Inhabitants between 7 and 15 years of age have to follow compulsory basic education free of cost According to § 218,1 The Government of Aceh and Kabupaten/Kota governments set the policies for formal education, religious education and other non- forma education by setting the core curricula and quality standards for all kinds and levels of education according to laws and regulations.
Health According to § 224 Every inhabitant of Aceh has the same right in receiving health care services in order to achieve an optimal degree of health; Every inhabitant of Aceh is obliged to join in maintaining and improving the degree of individual, family and environmental health; Improving the degree of health has at least to follow minimum service standards Further stipulations regarding efforts in the field of health will be regulated in provincial and Kabupaten/Kota Qanuns Problem: According to Law 32/2004 and GR 65/2005 on Minimum Service Standards (SPM), these standards are to be set by the respective central government departments and are to be followed by the regions, with no exception made for Aceh. The regulations in § 224, 3 and 5 are therefore in contradiction to existing laws and regulations and will create uncertainty in implementation.
Regional Finance In determining the revenues of the province and Kabupaten/Kota, the draft LOGA follows largely the stipulations of Law 33/2004 with the main exceptions regarding –special revenue sharing arrangements for oil and gas as mentioned before, –additional funds (dana tambahan) amounting to 2% of the national DAU plafond for the duration of 15 years and 1% for the following 5 years.
Community Development Funds Every mining enterprise in Aceh has to provide Community development funds (§ 159), the amount of which is to be fixed in agreement between the Government of Aceh, district governments and the respective enterprise, amounting to at least 1% of the annual value of production; Plans for the utilization of the funds are jointly (?) prepared, considering the needs of the communities in the vicinity of the mining operations and communities in other places (?), have to involve the respective mining enterprise, and are regulated in a provincial Qanun; The funds for the community development programs are to be managed by the respective mining enterprise itself.
Other Arrangements Arrangements regarding –Provincial and Kabupaten/Kota Parliaments –The structure and apparatus of provincial and Kabupaten/Kota governments –The responsibilities of Governor/Bupati/Walikota –The Election of the Governor/Bupati/Walikota, and –The civil service of Provinces/Kabuapten/Kota follow with very few exceptions literally the arrangements of Law 32/2004
The Follow-up Regulations The implementation of the LOGA needs (depending on the interpretation of some stipulations that are not sufficiently clear) –At least 4 Government Regulations (Peraturan Pemerintah) on: Local Poitical Parties (§ 95), at the latest by February 2007 Management of Oil and Gas resources (§ 160 article 5) The name of Aceh as a province and the titles of office holders (§ 251,3; based on proposal from DPRA after elections in 2009) Central government authorities of national character (§ 270,1) –3 Presidential Regulations (Perpres) on Process of consultation with DPRA on planned international agreements by the central government, and with the Governor on administrative decisions of the central government (§ 8,4) Cooperation of Aceh with foreign institutions and participation in events abroad (§ 9,4) Transfer of offices of the National Land Agency (BPN) at province and district levels to local governments; at the latest at the beginning of FY 2008 (§ 253,2) –At least 58 Provincial Qanun and 35 Kabupaten/Kota Qanun.