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Law on the Governing of Aceh - A Brief Review and Assessment -

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

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Law on the Governing of Aceh - A Brief Review and Assessment -

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  1. Law on the Governing of Aceh- A Brief Review and Assessment - Bernhard May

  2. 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 Syari’at Islam) • to implement traditional norms and culture (adat) • to implement education including elements of Syari’at Islam • to give the religious (Islamic) leaders a role in policy making (creation of a board of religious leaders)

  3. 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%

  4. 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 Syar’iyah Court (Mahkamah Syar’iyah) 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

  5. 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

  6. 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).

  7. Translation of the MoU into the Draft LOGA • In elaborating the GOI’s 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.

  8. MoU: Principles of LOGA (1/8) • 1st 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:

  9. 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 government’s authority in Aceh would be restricted to the six sectors mentioned in the MoU.

  10. MoU: Principles of LOGA (3/8) • Problems related to the 1st 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.

  11. 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 • “includepolicies 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.”

  12. 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.”

  13. MoU: Principles of LOGA (6/8) • Other problems related to the 1st 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 Syar’iyah 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”)

  14. MoU: Principles of LOGA (7/8) • The 2nd 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 3rd 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).

  15. MoU: Principles of LOGA (8/8) • The 4th 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.

  16. 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 • “ Before the above stipulation is implemented, the Province Nanggroe Aceh Darussalam continues to be used as the name of the province.

  17. 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).

  18. 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.

  19. 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).

  20. 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).

  21. 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).

  22. 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.

  23. 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.

  24. 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 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.

  25. 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.”

  26. 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”.

  27. 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.

  28. MoU: Revenues from Natural Resources • The MoU stipulates that • “Aceh is entitled to retainseventy (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).

  29. 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.

  30. MoU: Seaports and Airports (2/7) • LOGA § 19 says: • “Kabupaten 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.

  31. 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”

  32. 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”

  33. 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”

  34. 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.

  35. 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.

  36. 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.”

  37. 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.”

  38. 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”.

  39. 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.)

  40. 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.”

  41. 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:

  42. 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

  43. 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.

  44. 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.

  45. 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.”

  46. 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, syari’at, 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, syari’at 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.

  47. 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 syari’at 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.

  48. 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.”

  49. 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.

  50. 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.

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