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The legislative deliberations on the Law on the Governance of Aceh

by Sebastian Braun

15 August 2005 was a historic moment for the people of Aceh. On this day, the government of Indonesia and the Free Aceh Movement (Gerakan Aceh Merdeka, GAM) signed a Memorandum of Understanding (MoU), effectively terminating the armed conflict that had raged more than three decades in the province and cost over ten thousand lives. However, this accord did not spell the end of the ‘peace-keeping’ process but rather marked its beginning. Point 1.1.1 of the MoU stipulated that a Law on the Governance of Aceh (LoGA) was to be promulgated and enter into force before 31 March 2006. This was a tall order, given the notorious snail speed by which Indonesian legislators normally pass bills into law. Accordingly, the LoGA’s ratification did not occur until July 2006. All factions in the DPR agreed to pass the bill into law amid strong discontent in Aceh. To vent their anger, many Acehnese took part in a general strike in their province. GAM made clear that it was dissatisfied with several articles in the law but would not resort to violence to enforce its position: on the non-requirement of Aceh’s consent (see below); on the central government’s authority to set the norms, standards and procedures for the implementation of state affairs by the government of Aceh (Article 11); on the expansive role of the TNI (see below); on the non-application of civilian courts for adjudicating civilian crimes by soldiers; Aceh’s limited access to the international community; and on the non-retroactivity of the human rights court. Aceh governor Irwandi said to the Jakarta Post: „According to the peace deal, there should be only 14,500 TNI personnel in Aceh for defense purpose.

But the law did not say that. In fact, the TNI has another role, involvement in the reconstruction process (following the December 2004 tsunami)” and on Article 11: „That single article could block other articles, which is dangerous.” 1 By contrast, European members of the Aceh Monitoring Mission considered the law to be broadly in conformity with the MoU.2 Despite its shortcomings, the LoGA has contributed to lasting peace in Aceh and even given rise to more direct democracy in the whole of Indonesia: in July 2007, the Constitutional Court ruled that independent candidates are allowed to contest local elections everywhere.

Autonomy was the catchphrase. GAM demanded it for Aceh and Jakarta granted it – at least in the MoU. The document signed in August 2005 laid out a number of provisions on which the subsequent LoGA was to be based. While the central government was to retain supreme authority on seven policy areas – foreign affairs, external defence, national security, monetary and fiscal matters, justice and freedom of religion –, the provincial legislature (Dewan Perwakilan Rakyat Aceh, DPRA) and administration would be accorded a veto over international agreements, laws and government regulations with special interest to Aceh. The important word in the MoU was ‘consent’ (persetujuan): the central government would not be able to make decisions relating to the province without first obtaining its consent. Another crucial provision regarded the permission of local political parties to contend the province’s legislative elections.

To understand the process by which the MoU was transformed into the LoGA, it is necessary to know the rules of the legislative process in Indonesia. According to the amended Constitution, both the executive and the national parliament (Dewan Perwakilan Rakyat, DPR) have to arrive at a common agreement over the content of a bill before it can be passed into law (Article 20). In other words, not only the DPR but also the President wield a veto over legislation – this has been confirmed by the Constitutional Court. In addition, the decision-making process within parliament is marked by consensus unless approval by all lawmakers involved proves elusive. As the standing orders of the DPR do not set down a time limit, the deliberations may continue indefinitely. During this process, each party composes a list of issues (Daftar Inventarisasi Masalah, DIM) in which it expresses its opinion on individual articles in the draft law. The DIMs then take centre stage in the discussions.

In January 2006, the Ministry of Home Affairs (Departemen Dalam Negeri, Depdagri), headed by former general M. Ma’aruf, submitted its version of the LoGA to the DPR. The draft was immediately criticised by activists grouped in the Aceh Network for Democracy for containing clauses that would allow the division of Aceh into separate provinces.3 Moreover, this move by the Depdagri was notable in that it indicated the government’s reluctance to simply adopt the bill that had been drafted by the Acehnese administration instead of confronting the legislature with its own version. However, the bill was accepted by a plenary session of the DPR which on 14 February approved the formation of a Special Committee (Panitia Khusus, Pansus) to deliberate on the draft.4 The chairman of the 50-member Pansus was Ferry Mursidan Baldan of Golkar; his four vice-chairmen were former general Sembiring Meliala (PDI-P), Tengku Muhammad Yus (PPP), Soekartono Hadiwarsito (PD) and Djoko Susilo (PAN).5 Having five chairpersons is normal practice in Indonesia. As the biggest party in parliament, Golkar obtained the greatest number of seats, that is, 12. It was followed by PDI-P with 10 seats; PPP, PD, PAN and PKB each were given 5 seats; PKS 4; the coalition of small parties BPD 2; and PBR and PDS each received 1 seat.
This roughly corresponds to their number of seats in the DPR as a whole.

Considerable disagreement soon emerged over the authority of the provincial administration (Article 7 in the LoGA). While PDI-P categorically rejected any reference to Acehnese autonomy, parties like PAN and PKB proved more amendable. For instance, PKB proposed in its DIM that a transfer of central government policy areas to the province’s regional government by law should be possible. In a similar vein, PKS and PBR took issue with the Depdagri draft’s diction which slightly deviated from the MoU. Moreover, PKS would have deleted ‘religious affairs’ from the central government’s authority. Golkar, PD and BPD consented to the home ministry’s draft. PDS refrained from passing comment on the passage. In the end, the government’s formulation not only prevailed but was even amended to include ‘national affairs’.

Consequently, the final version covers eight policy areas: national affairs (not in MoU), foreign affairs, defence, security, justice, monetary and fiscal matters, and religion.

While the DPRA draft stipulated that the policy areas that are within the purview of the central government may be transferred to the Acehnese administration, the home ministry draft held that these policy areas may be expanded. Thus the central government altered this paragraph beyond recognition. As PDI-P rejected the proposed Article 7 as a whole, it also rejected this passage, despite its exceedingly centralistic lookout. Golkar and PD again concurred. PPP also agreed but suggested a more detailed formulation which included a provision on the central government transferring matching funds for tasks delegated to Aceh. By contrast, PAN criticized the paragraph for giving the central government unlimited powers in matters concerning Aceh. It suggested Paragraph 3 be restored to its original state as proposed by the DPRA and to be accompanied by a passage on matching funds transferred to Aceh for delegated tasks. PKS’s and PBR’s criticisms of the home ministry’s Paragraph 3 were identical with PAN’s criticism. BPD concurred; PDS again did not offer an opinion. The final version of the paragraph constitutes a compromise between these pro-Aceh positions and the government’s stance. Instead of allowing a full delegation of tasks, the central administration may partly transfer its authority to the regional government of Aceh – only if it chooses to do so. In PAN’s and PKS’s formulation a full transfer of central government authority was theoretically possible. The provision on a potential expansion of the latter was dropped.

Article 8 on international agreements and legislation with regard to Aceh did not undergo any change by the home ministry in comparison to the DPRA’s version. Thus the latter’s draft stipulated that such political decisions had to be taken in consultation with and with the consent (persetujuan) of the DPRA. Golkar and PDI-P strongly objected to this formulation. However, while the latter opted for the deletion of the complete article, Golkar (along with BPD and PDS) suggested amending it by deleting only the word ‘consent’. PD proposed exchanging ‘consent’ with ‘consideration’ (pertimbangan). PPP, PAN, PKS and PBR were content with the paragraph’s substance. PKB, on the other hand, suggested a middle way by eliminating ‘consent’ but adding that the DPRA ‘must’ be consulted. Nonetheless, Article 8 in the LoGA features the formulation ‘in consultation with and with the consideration of the DPRA’ which contrasts with the formulation in the MoU.

Pursuant to Article 40 in the LoGA, the governor of Aceh, qua representative of the government, is accountable to the President. Already the home ministry’s draft, unlike the DPRA draft, did not include the governor’s explicit responsibility towards the DPRA. While PKS, PAN and PBR demanded the reinsertion of the governor’s responsibility towards the DPRA; Golkar, PDI-P, PKB, PD, PPP, BPD did not object to the passage’s deletion. Nonetheless, the DPRA may on legal grounds propose the governor’s dismissal to the President through the home minister. After the Supreme Court has decided on the legality of the dismissal, the proposal is referred to the President (Articles 23
(d) and 48 (4)). As a result of this dual responsibility, the governor delivers an accountability report to the central government and the DPRA (Article 40 (f, g)). The governor’s funds for implementing his tasks, however, are disbursed by the central government (Article 43 (4)). All the parties agreed with this provision, including PDI-P.

Pursuant to Article 67 in the LoGA, the pair of candidates for governor and deputy governor may be submitted by a political party or a coalition of parties; a local party or a coalition of local parties; and by individuals. Surprisingly, the DPRA draft did not explicitly mention local parties. It did, however, contain the provision on independent candidates, that is, candidates not affiliated with a political party.

The home ministry then deleted this passage but added local parties as being able to propose candidates. Again the positions of Golkar, PD, PPP and BPD coincided with the government’s position. Strongly anti-regional-autonomy, PDI-P – along with PDS – differed and suggested deleting the passage about local parties being able to propose candidates. By contrast, PAN, PKB and PBR again assumed a pro-Aceh stance. They favoured reintroducing the possibility of independent candidates. PAN only added that this provision should not come into force before the elections in 2009.

The formation of local political parties is regulated in Article 75 of the LoGA. To establish a local party, one has to be a resident of Aceh; find at least 49 other Indonesian citizens; and set up party offices in at least 50 percent of the regencies/cities and in 25 percent of the sub-districts in each regency/city in Aceh. The DPRA draft, like that of the home ministry, stipulated that a local party had to have offices in at least 50 percent of the districts/cities and in 50 percent of the sub-districts. Most staunchly opposed to this concession, PDI-P and PDS favoured the outright deletion of the whole passage on local political parties. Golkar and PD adhered to the government’s position. PAN, PKS, BPD and PBR suggested adding that the membership of a local party had to be such that one member represented one thousand citizens in each relevant sub-district. PKB refrained from commenting on this article.

Pursuant to Article 76 of the LoGA, local parties are registered with and legalized by the regional office of the justice ministry. However, to participate in the elections for the DPRA, a local party must have offices in at least 2/3 of regencies/cities and 2/3 of sub-districts, and a membership equal to one thousandth of the population in each area where the party has an office (Article 89). Naturally, the acceptance of Pancasila is a prerequisite for a local party’s establishment (Article 82 (2)). The home ministry’s draft also included the stipulation that further regulation on local political parties is the central government’s authority. This was accepted by all parties, except PDI-P and PBR which categorically rejected this article.

Pursuant to Article 202 of the LoGA, the TNI’s functions are state defence and other tasks as regulated by law. Criminal offences committed by soldiers in Aceh are tried in accordance with regulation by law (Article 203). This constitutes a violation of the MoU which stated that criminal offences had to be tried in civilian courts. While the DPRA’s draft had not included this passage, the home ministry inserted it into its draft. The former had also limited the TNI’s functions to ‘external defence’ and made movements of troops contingent on DPRA approval. These passages did not appear in the Depdagri’s draft and are missing in the LoGA as well. While Golkar, PDI-P, PPP, PD, BPD, PKB and PDS agreed with the home ministry or did not raise any objections against these omissions; PAN suggested reducing the military’s authority to guarding national security, to which PKS and PBR added the DPRA’s formulation ‘against external threats’. PAN proposed that movements of troops were conducted with the ‘consultation’ with Aceh. In terms of prosecution of crimes committed by soldiers; PAN, PKS and PBR objected to Article 203 of the LoGA. Golkar, PDI-P, PD and BPD agreed; while PKB, PPP and PDS refrained from passing comment. In another concession to the military, the passage on past human rights violation was dropped from the Depdagri’s draft and does not reappear in the LoGA. The DPRA’s draft had vested the Truth and Reconciliation Commission with the power to decide on the retroactive persecution of such violations (‘melakukan klarifikasi terhadap pelanggaran Hak Asasi Manusia di masa lalu’).

Golkar even suggested explicitly adding the non-application of the retroactive principle. Similary, PDI-P demanded a blanket amnesty for all parties involved in the armed conflict in Aceh. According to PPP and PAN, human rights violations could be tried retroactively (‘bisa bersifat retroaktif’). PBR favoured the DPRA’s formulation. PKB abstained from offering an opinion; the other parties did not take issue with the substance of the article.

Pursuant to Article 235 of the LoGA, the central government may annul Qanun (regulations issued by the Acehnese administration) if these contradict public interest, other Qanun or central government laws. The DPRA draft had only allowed the Supreme Court to review Qanun. The home ministry deleted this passage and stipulated that Qanun were subject to government approval. Nonetheless, Article 235 of the LoGA features the possibility of a Supreme Court review but relegates this to regulation by law. Golkar, PKS and PBR favoured the option of a Supreme Court review of Qanun instead of by the government. PDI-P, PD, BPD agreed with the home ministry; PKB, PPP, and PDS abstained. PAN did not raise any objections.

Pursuant to Article 269 (3) of the LoGA, amending the LoGA requires the consultation with and the consideration (‘pertimbangan’) of the DPRA.
This is in stark contrast to the DPRA’s draft which had stipulated that such change had to obtain the approval (‘persetujuan’) of the DPRA.
Surprisingly, the Depdagri’s draft did not deviate from this position.
While Golkar, PPP, PAN, PKB, PKS, BPD, PBR and PDS did not raise any objections against this formulation; PDI-P and PD suggested the passage’s deletion.

In summary, the simple answer to the question of how the highly centralistic LoGA could materialise is that there was substantial support for continued centralism among the political parties. However, the parties’ positions were also marked by significant divergence which helped the central government impose its stance. PDI-P’s stalwart opposition to any substantial compromise of the unitary state made it the most consistently centralistic legislative actor in the deliberations. The party never refrained from offering an opinion on important articles and invariably rejected those passages that devolved wide-ranging powers to the provincial administration. This was done by suggesting either the outright deletion or a complete rewrite of the paragraph in question. PDI-P even surpassed the central government, which was bound to some degree by the MoU, in its openly centralistic attitude. For instance, the provision on local political parties was rejected by PDI-P but accepted by the central government as a non-amendable point in the MoU. In conformity with the centralistic imperative, the party chose to side with the TNI in opposing the application of the retroactive principle and trying criminal offences perpetrated by soldiers in civilian courts.6 By contrast, PD and Golkar generally conformed to their role as the government’s primary supporters in the DPR. They almost invariably agreed to the home ministry’s draft, hardly proposing more than mere grammatical changes. Only in very few instances did Golkar and PD deviate from the Depdagri’s draft, and then only to reinforce the central government’s position. For example, while the home ministry had complied with the MoU on the point on international agreements and legislation pertaining to Aceh (Article 8 of the LoGA), Golkar came out squarely against investing the province with a veto. PD then offered the face-saving solution of compelling the President and the DPR to take into account the province’s ‘consideration’. However, Golkar differed with the home ministry over the authority to review Qanun which it would have given to the Supreme Court. With regard to the TNI, Golkar and PD pursued the same policy line as PDI-P. The smaller Fractions of PDS and BPD often joined PDI-P, Golkar and PD in defending centralism. Of the Islamic parties, PPP proved the most inclined towards the home ministry. Thus the party agreed to a possible expansion of central government policy areas but deviated on relatively minor issues such as on the application of Sharia in the province. However, PPP did not rule out retroactively prosecuting crimes committed by soldiers. Staunchly pro-Aceh, PAN, PKS and PBR often clashed with the home ministry, in general favouring the DRPA’s draft.
This difference in opinion was most patently displayed in the Depdagri’s revision of the paragraph on the authority of the central government which was roundly criticised by these parties as a grab for unlimited power. In the face of such opposition and as this would have constituted a grave violation of the MoU, the home ministry relented. Nonetheless, it did manage to alter the rest of Article 7 to its benefit. In addition, PAN, PKS and PBR rejected Article 203 on criminal offences perpetrated by soldiers. PKB on several occasions occupied the middle ground between the pro-Aceh group of PAN, PKS, and PBR, and the more government friendly PPP. While the party remained silent on several issues, its stance became clear when it proposed a compromise on the question of Aceh’s veto (Article 8 of the LoGA). Instead of ‘consent’, PKB would have written ‘the DPRA must be consulted’. Whereas PPP chose to side with the government with regard to the prohibition of independent candidates, PKB favoured the DPRA’s draft. On the complete TNI article, however, PKB desisted from offering an opinion.

The rejection of a truly autonomous Aceh by the major players in the legislative process and the divergence of party positions generally enabled the executive to select its optimal point. As PDI-P was adamant in its rejection of articles it deemed a sell-out of central government authorities and the parties closest to the executive consistently supported the home ministry’s draft, the final version of the bill contained fewer concessions to Aceh than the MoU. The central government knew full well that it could renege on several of these previous commitments with impunity because necessary legislative support was simply not forthcoming. On the other hand, the executive was cognizant of the fact that this reneging could not go too far, not least because of the international attention that the law attracted. Thus the strongly pro-Aceh position of PKS, PAN and PBR gave the central government the means to salvage certain crucial parts of the MoU without which the peace agreement with GAM would have been jeopardized. For example, giving in to PDI-P’s refusal to accept local political parties in Aceh was out of the question thanks to the strong backing by the other parties. In terms of veto power, the DPRA’s proposal met such fierce resistance that the central government could deviate to its own advantage from the home ministry’s draft which had conformed to the MoU in this respect. Only in isolated instances did the pro-Aceh parties prevail over the advocates of centralism. Thus the central government saw its authorities limited against its will to eight policy areas without providing for a possible expansion of the latter. However, even this outcome favoured the administration in Jakarta over its regional counterpart. In order to impose its position, the home ministry did not only rely on the diversity of opinion among the parties but also actively sought to directly influence the course of the deliberations.
The government’s payments to the legislators who were members of the Pansus testified to these unsavoury attempts at swaying opinion in the home ministry’s favour.7 In addition, the payments served to expedite the legislative process which was slowed down by the initial lack of consensus. <>

1 See The Jakarta Post online (August 03, 2006: GAM wants Aceh governance law revised to meet peace deal).
2 See Agence France-Presse online (July 13, 2006: Foreign monitors give initial nod to Indonesia’s Aceh law).
3 See The Jakarta Post online (January 27, 2006: House gets Aceh draft law to debate; February 08, 2006: Aceh bill ‘needs overhaul’).
4 See The Jakarta Post online (February 15, 2006: House sets up committee to debate Aceh bill).
5 See The Jakarta Post online (February 23, 2006: Preparations keep Aceh bill deliberation on hold).
6 Officially, the TNI’s was not against the application of the retroactive principle.
7 See The Jakarta Post online (April 22, 2006: Payments taint Aceh bill).