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

Law on Law on the Governing of Acehthe Governing of Aceh

- - A Brief Review and Assessment -A Brief Review and Assessment - Bernhard MayBernhard May

Background: Law 44/1999Background: Law 44/1999

Law 44/1999 on the Law 44/1999 on the Implementation of the Implementation of the Specialty of the Special Province of AcehSpecialty of the Special Province of Aceh was enacted on 4 October 1999, with “specialty” was enacted on 4 October 1999, with “specialty” meaningmeaning– to lead a religious life (the right to introduce to lead a religious life (the right to introduce Syari’at Syari’at

IslamIslam))– to implement traditional norms and cultureto implement traditional norms and culture (adat) (adat) – to implement to implement educationeducation including elements of including elements of

Syari’at IslamSyari’at Islam– to give the to give the religious (Islamic) leadersreligious (Islamic) leaders a role in policy a role in policy

making (creation of a board of religious leaders)making (creation of a board of religious leaders)

Background: Law 18/2001 (1/2)Background: Law 18/2001 (1/2)Law 18/2001 on “Law 18/2001 on “Special Autonomy for The Special Province of Special Autonomy for The Special Province of Aceh as Province of Nanggroe Aceh Darussalam” Aceh as Province of Nanggroe Aceh Darussalam” was enacted was enacted on 9 August, 2001:on 9 August, 2001:

– Assignment of government functions as far as not Assignment of government functions as far as not specifically regulated in the law, follows existing specifically regulated in the law, follows existing regulations (Law 22/1999 and GR 25/2000 on the regulations (Law 22/1999 and GR 25/2000 on the Distribution of Functions between Central Government and Distribution of Functions between Central Government and Provinces)Provinces)

– Revenue sharing different from general arrangements Revenue sharing different from general arrangements (Law 25/1999): 20% of personal income tax revenues (Law 25/1999): 20% of personal income tax revenues (others = 0); for the duration of 8 years 55% of oil (others = 0); for the duration of 8 years 55% of oil revenues in addition to the 15% granted to other regions), revenues in addition to the 15% granted to other regions), and 40% of natural gas revenues in addition to the 30% and 40% of natural gas revenues in addition to the 30% granted to other regions, after 8 years reduced to granted to other regions, after 8 years reduced to additional 35% respectively 20%additional 35% respectively 20%

Background: Law 18/2001 (2/2)Background: Law 18/2001 (2/2)– Establishment of Establishment of Wali NanggroeWali Nanggroe as a (non-political) as a (non-political)

institution to unify the people of Aceh and provide institution to unify the people of Aceh and provide guidance on traditional norms and cultureguidance on traditional norms and culture

– Organization of the elections of Organization of the elections of Governor/Bupati/Walikota by Governor/Bupati/Walikota by KIPKIP (Independent (Independent Election Commission) consisting of the KPU (General Election Commission) consisting of the KPU (General Elections Commission) and representatives of the Elections Commission) and representatives of the peoplepeople

– Agreement of the Governor to the appointment of Agreement of the Governor to the appointment of police chief neededpolice chief needed

– Establishment of Syar’iyah Court (Mahkamah Establishment of Syar’iyah Court (Mahkamah Syar’iyah) to practice islamic law for followers of Islam Syar’iyah) to practice islamic law for followers of Islam in the framework of the national lawin the framework of the national law

– All stipulations regarding special authorities of NAD to All stipulations regarding special authorities of NAD to be followed up by be followed up by Qanun Qanun (regional bylaw), (regional bylaw), without without any reference to existing laws and regulationsany reference to existing laws and regulations

The Peace Accord of HelsinkiThe Peace Accord of Helsinki

15 August 2005:15 August 2005: “Memorandum of “Memorandum of Understanding Between The Government of Understanding Between The Government of the Republic of Indonesia and the Free Aceh the Republic of Indonesia and the Free Aceh Movement”Movement” (MoU) signed in Helsinki by the (MoU) signed in Helsinki by the Indonesian Minister of Law and Human Rights, Indonesian Minister of Law and Human Rights, Hamid Awaludin, and Malik Mahmud for the Hamid Awaludin, and Malik Mahmud for the GAM Leadership, witnessed by Martti Ahtisaari, GAM Leadership, witnessed by Martti Ahtisaari, Former President of Finland and Chairman of Former President of Finland and Chairman of the Board of Directors of the Crisis Management the Board of Directors of the Crisis Management Initiative as Facilitator of the negotiation process Initiative as Facilitator of the negotiation process between GOI and GAMbetween GOI and GAM

MoU: The Law on the Governing of MoU: The Law on the Governing of AcehAceh

According to the MoU, “a new According to the MoU, “a new Law on the Law on the Governing of AcehGoverning of Aceh (LOGA) will be (LOGA) will be promulgated and will enter into force as promulgated and will enter into force as soon as possible and not later than 31 soon as possible and not later than 31 March 2006”March 2006”The MoU (Article 1.1.2.) stipulates 4 The MoU (Article 1.1.2.) stipulates 4 principlesprinciples the new law is supposed to be the new law is supposed to be based on (meaning the law does not have based on (meaning the law does not have to follow precisely the wording of the to follow precisely the wording of the MoU).MoU).

Translation of the MoU into the Translation of the MoU into the Draft LOGADraft LOGA

In elaborating the GOI’s draft LOGA, the drafting In elaborating the GOI’s draft LOGA, the drafting team has undertakenteam has undertaken– to follow as much as possible the draft LOGA that to follow as much as possible the draft LOGA that

was prepared by the DPRD of the Province of Aceh was prepared by the DPRD of the Province of Aceh based on inputs by the provincial government and based on inputs by the provincial government and various stakeholders in Aceh and Jakarta, and various stakeholders in Aceh and Jakarta, and

– to formulate its own draft by taking into consideration to formulate its own draft by taking into consideration the principles mentioned in the MoUthe principles mentioned in the MoU and the and the perceived meaning of the MoU, and wherever perceived meaning of the MoU, and wherever possible the wording of the MoU, howeverpossible the wording of the MoU, however

The MoU is The MoU is not regarded as a legally binding not regarded as a legally binding sourcesource of the LOGA, therefore the Parliament of the LOGA, therefore the Parliament was free to make its decisions independent of was free to make its decisions independent of the MoU in line with the Constitution and existing the MoU in line with the Constitution and existing laws.laws.

MoU: Principles of LOGA (1/8)MoU: Principles of LOGA (1/8)

11stst principle (Article 1.1.2. a.): principle (Article 1.1.2. a.):““Aceh will exercise authority within all sectors of public Aceh will exercise authority within all sectors of public affairs….except in the fields of foreign affairs, affairs….except in the fields of foreign affairs, external external defense, defense, nationalnational security, monetary and fiscal matters, justice and security, monetary and fiscal matters, justice and freedom freedom of religionof religion, the policies of which belong to the Government of the , the policies of which belong to the Government of the Republic of Indonesia in conformity with the Constitution.”Republic of Indonesia in conformity with the Constitution.”

Has been translated into the LOGA (Has been translated into the LOGA (§ 7)§ 7) by saying: by saying: ““The Governments The Governments (pemerintahan) (pemerintahan) of Aceh and Kabupaten/Kota of Aceh and Kabupaten/Kota have the authority to regulate and implement government functions have the authority to regulate and implement government functions in all public sectors except government functions that are the in all public sectors except government functions that are the authority of the central government.”authority of the central government.”““Authorities of the central government comprise government Authorities of the central government comprise government functions that are of national character, foreign affairs, defense, functions that are of national character, foreign affairs, defense, security, justice, monetary affairs, national fiscal affairs and certain security, justice, monetary affairs, national fiscal affairs and certain functions in the field of religion.”functions in the field of religion.”

The LOGA differs from the above principle because of The LOGA differs from the above principle because of problems, some of which are discussed in the following:problems, some of which are discussed in the following:


Problems related to the 1st principle (1):Problems related to the 1st principle (1):– This principle was obviously misinterpreted This principle was obviously misinterpreted

by GAM, other stakeholders in Aceh and by GAM, other stakeholders in Aceh and even some DPR fractions, who believe that even some DPR fractions, who believe that according to the MoU, Aceh will have the according to the MoU, Aceh will have the right to exercise right to exercise allall authorities within all authorities within all sectors of public affairs, meaning that the sectors of public affairs, meaning that the central government’s authority in Aceh central government’s authority in Aceh would be restricted to the six sectors would be restricted to the six sectors mentioned in the MoU.mentioned in the MoU.

MoU: Principles of LOGA (3/8)MoU: Principles of LOGA (3/8)Problems related to the 1Problems related to the 1stst principle (continued): principle (continued):While the wording of the MoU does not justify this interpretation, While the wording of the MoU does not justify this interpretation, such an arrangement regarding central government functions in such an arrangement regarding central government functions in Aceh would also be unrealistic, because there are still Aceh would also be unrealistic, because there are still numerous numerous functions outside the six sectorsfunctions outside the six sectors mentioned in the MoU that need to mentioned in the MoU that need to be regulated and/or even implemented by the central government if be regulated and/or even implemented by the central government if theythey

constitute constitutional obligationsconstitute constitutional obligations of the central government the of the central government the implementation of which has been decentralized, like provision of implementation of which has been decentralized, like provision of certain basic services at certain quality standards to all citizens of certain basic services at certain quality standards to all citizens of the nationthe nationare are related to international conventionsrelated to international conventions which have been translated which have been translated into national law the implementation of which has been delegated to into national law the implementation of which has been delegated to sub-national governments, like conventions on climate, natural sub-national governments, like conventions on climate, natural resources and human rights, or resources and human rights, or if their implementation by the government of Aceh would if their implementation by the government of Aceh would effect other effect other regions of Indonesia or other countriesregions of Indonesia or other countries (create so called (create so called externalities), like managing maritime resources outside the 12-mile externalities), like managing maritime resources outside the 12-mile zone, air traffic regulation and control, providing postal services, zone, air traffic regulation and control, providing postal services, regulation of domestic and international trade, regulating and regulation of domestic and international trade, regulating and controlling the use of nuclear energy, pandemic disease control etc.controlling the use of nuclear energy, pandemic disease control etc.

MoU: Principles of LOGA (4/8)MoU: Principles of LOGA (4/8)Perceived solution of the aforementioned problems in Perceived solution of the aforementioned problems in the LOGA as approved by the DPR (1):the LOGA as approved by the DPR (1):– § 7,2:§ 7,2:

““Government functions Government functions (urusan)(urusan) of national character” of national character” were added were added as a field of exclusive authority of the central government, as a field of exclusive authority of the central government, with the with the elucidations saying that such functionselucidations saying that such functions““includeinclude policies in the field of national planning, policies in the fields policies in the field of national planning, policies in the fields of national development control, fiscal balance, state administration, of national development control, fiscal balance, state administration, state economic institutions, guidance and empowerment of human state economic institutions, guidance and empowerment of human resources, strategic high technologies, conservation and national resources, strategic high technologies, conservation and national standardization”, where policies mean “the authority of the central standardization”, where policies mean “the authority of the central government to conduct guidance, facilitation, and the setting and government to conduct guidance, facilitation, and the setting and implementation of government functions of national character”.implementation of government functions of national character”.

– § 270,1: § 270,1: ““Central Central government authorities government authorities (kewenangan)(kewenangan) of national character of national character and the implementation of this law as far as it refers to the and the implementation of this law as far as it refers to the authorities of the central government are regulated by authorities of the central government are regulated by (dengan)(dengan) laws and regulations.”laws and regulations.”

MoU: Principles of LOGA (5/8)MoU: Principles of LOGA (5/8)Perceived solution of the aforementioned problems in Perceived solution of the aforementioned problems in theLOGA as approved by the DPR (continued):theLOGA as approved by the DPR (continued):– § 11,1:§ 11,1:

““The central government sets The central government sets norms, standards and proceduresnorms, standards and procedures and and conducts the supervision over the implementation of government conducts the supervision over the implementation of government functions by the Government of Aceh and Kabupaten/Kota functions by the Government of Aceh and Kabupaten/Kota governments (elucidations: “norms are rules or stipulations that are governments (elucidations: “norms are rules or stipulations that are used as arrangements used as arrangements (tatanan) (tatanan) in implementing regional in implementing regional governance; standards are references governance; standards are references (acuan)(acuan) that are used as that are used as directives (directives (patokan) patokan) in implementing regional governance; in implementing regional governance; procedures are methods or modes (procedures are methods or modes (tata cara) tata cara) for implementing for implementing regional governance”. regional governance”.

The way this is formulated suggests a broad range of The way this is formulated suggests a broad range of authorities of the central government over the authorities of the central government over the implementation of regional governance in Aceh, which implementation of regional governance in Aceh, which on the other hand is supposed to be constrained byon the other hand is supposed to be constrained by– § 11,2:§ 11,2:

““Norms, standards and procedures do not reduce the authorities Norms, standards and procedures do not reduce the authorities which the Government of Aceh and the Kabupaten/Kota which the Government of Aceh and the Kabupaten/Kota governments have as laid down in § 7,1.”governments have as laid down in § 7,1.”

MoU: Principles of LOGA (6/8) MoU: Principles of LOGA (6/8) Other problems related to the 1Other problems related to the 1st st principle:principle:– The addition of the term The addition of the term “external”“external” to the term “defense” and to the term “defense” and

of the term of the term “national”“national” to the term “security” is regarded as not to the term “security” is regarded as not being in line with existing laws and regulations and has being in line with existing laws and regulations and has therefore not been adopted both by the GOI drafting team therefore not been adopted both by the GOI drafting team and by the DPRand by the DPR

– The term “The term “freedom of religion”freedom of religion” does not constitute a does not constitute a government authority as such; therefore it is not clear what government authority as such; therefore it is not clear what the exclusive rights of the central government in this field are the exclusive rights of the central government in this field are supposed to be, considering the fact that Aceh has been supposed to be, considering the fact that Aceh has been granted far-reaching authority in this filed (the right to granted far-reaching authority in this filed (the right to introduce Syar’iyah and regulate its implementation by its introduce Syar’iyah and regulate its implementation by its own bylaws); the LOGA assigns “own bylaws); the LOGA assigns “certain government affairs certain government affairs in the field of religionin the field of religion” to the central government (no further ” to the central government (no further explanation, but probably the same as in Law 32/2004: very explanation, but probably the same as in Law 32/2004: very unclear except for “official acknowledgement of a religion”)unclear except for “official acknowledgement of a religion”)


The 2The 2ndnd principle (Article 1.1.2. b. of the MoU): principle (Article 1.1.2. b. of the MoU):““International agreements entered into by the GOI which relate to International agreements entered into by the GOI which relate to matters of special interest to Aceh will be entered into matters of special interest to Aceh will be entered into in in consultation withconsultation with and and with the consentwith the consent of the legislature of Aceh”; of the legislature of Aceh”; andand

the 3the 3rdrd principle (Article 1.1.2. c of the MoU): principle (Article 1.1.2. c of the MoU):““Decisions with regard to Aceh by the legislature of the Republic of Decisions with regard to Aceh by the legislature of the Republic of Indonesia will be taken in Indonesia will be taken in consultation withconsultation with and and with the consentwith the consent of of the legislature of Aceh”the legislature of Aceh”

are constitutionally problematic as they would infringe upon the are constitutionally problematic as they would infringe upon the constitutional authorities of the President respectively those of the constitutional authorities of the President respectively those of the DPR as the sovereign legislative body representing all people of DPR as the sovereign legislative body representing all people of Indonesia, and might have lead to a judicial review by the Indonesia, and might have lead to a judicial review by the Constitutional Court.Constitutional Court.The principles have therefore been translated into the LOGA by The principles have therefore been translated into the LOGA by saying “saying “plannedplanned agreements/decisions” and agreements/decisions” and “in consultation with “in consultation with and with the considerations of DPRA”and with the considerations of DPRA” ( (§ 8).§ 8).


The 4The 4thth principle (Article 1.1.2. d. of the MoU): principle (Article 1.1.2. d. of the MoU):““Administrative measures undertaken by the Government of Administrative measures undertaken by the Government of Indonesia with regard to Aceh will be implemented in consultation Indonesia with regard to Aceh will be implemented in consultation and with the consent of the head of the Aceh administration”and with the consent of the head of the Aceh administration”

Has been translated into the LOGA by saying:Has been translated into the LOGA by saying:““Administrative policies of the central government that are directly Administrative policies of the central government that are directly related to the Government of Aceh will be made in consultation and related to the Government of Aceh will be made in consultation and with the with the considerationsconsiderations (not the consent) of the Governor” (not the consent) of the Governor”

This adjustment was seen as necessary because the This adjustment was seen as necessary because the governor, neither as head of the region nor (and even governor, neither as head of the region nor (and even less so) as the representative of the central government less so) as the representative of the central government in the region can have the authority to approve central in the region can have the authority to approve central government decisions. A judicial review against the government decisions. A judicial review against the regulation as proposed in the MoU would have been very regulation as proposed in the MoU would have been very likely.likely.

MoU: The name of AcehMoU: The name of Aceh

The MoU (Article 1.1.3) stipulates:The MoU (Article 1.1.3) stipulates:““The name of Aceh and the titles of senior elected officials The name of Aceh and the titles of senior elected officials will be determined by the legislature of Aceh after the next will be determined by the legislature of Aceh after the next elections”elections”

Has been accommodated in the LOGA (Has been accommodated in the LOGA (§ 251) § 251) by saying:by saying:

“ “ The name of Aceh as a province within the system of the The name of Aceh as a province within the system of the Unitary State of Indonesia based on the Basic Law of the Unitary State of Indonesia based on the Basic Law of the Republic of Indonesia of 1945, and the titles of senior elected Republic of Indonesia of 1945, and the titles of senior elected officials will be determined by the DPRA after the elections of officials will be determined by the DPRA after the elections of 2009.”, and2009.”, and“ “ Before the above stipulation is implemented, the Province Before the above stipulation is implemented, the Province Nanggroe Aceh Darussalam continues to be used as the Nanggroe Aceh Darussalam continues to be used as the name of the province.name of the province.

MoU: Kanun AcehMoU: Kanun Aceh

The stipulation of the MoU (Article 1.1.6) thatThe stipulation of the MoU (Article 1.1.6) that““Kanun Aceh will be re-established for Aceh respecting the Kanun Aceh will be re-established for Aceh respecting the historical traditions and customs of the people of Aceh and historical traditions and customs of the people of Aceh and reflecting contemporary legal requirements of Aceh”reflecting contemporary legal requirements of Aceh”

is worded so that it opens up the possibility for is worded so that it opens up the possibility for multiple interpretation: GAM and some other multiple interpretation: GAM and some other stakeholders in Aceh seem to interpret it in such a stakeholders in Aceh seem to interpret it in such a way that the “Qanun” is a regulatory instrument that is way that the “Qanun” is a regulatory instrument that is independent of any other laws and regulations, except independent of any other laws and regulations, except for the LOGA itself, while the LOGA puts it at an equal for the LOGA itself, while the LOGA puts it at an equal level with usual regional regulations (Peraturan level with usual regional regulations (Peraturan Daerah = Perda). Daerah = Perda).

MoU: Wali NanggroeMoU: Wali Nanggroe

The MoU (Article 1.1.7) stipulates:The MoU (Article 1.1.7) stipulates:““The institution of Wali Nanggroe with all its ceremonial attributes The institution of Wali Nanggroe with all its ceremonial attributes and entitlements will be established.”and entitlements will be established.”

The LOGA (The LOGA (§ 96) § 96) states among others:states among others:The Wali Nanggroe institution constitutes a traditional (adat) The Wali Nanggroe institution constitutes a traditional (adat) leadership as unifier of the people, which is independent, and leadership as unifier of the people, which is independent, and has the authority to guide and supervise the adat institutions, has the authority to guide and supervise the adat institutions, award titles of honor and exercise adat rites. award titles of honor and exercise adat rites. The Wali Nanggroe is The Wali Nanggroe is neither a political nor a government neither a political nor a government institution.institution.The Wali Nanggroe institution is headed by a Wali Nanggroe The Wali Nanggroe institution is headed by a Wali Nanggroe who is an independent individual.who is an independent individual.All other details regarding candidates, elections, electorate, All other details regarding candidates, elections, electorate, term in office, status, finance etc. are regulated by a term in office, status, finance etc. are regulated by a provincial Qanun. provincial Qanun.

Note: The institution of Wali Nanggroe had actually already Note: The institution of Wali Nanggroe had actually already been introduced by Law 18/2001.been introduced by Law 18/2001.

MoU: Political Participation (1/2)MoU: Political Participation (1/2)

The MoU (Article 1.2.1.) stipulates that The MoU (Article 1.2.1.) stipulates that ““As sson as possible and not later than one year from the As sson as possible and not later than one year from the signing of this MoU, GOI agrees to and will facilitate the signing of this MoU, GOI agrees to and will facilitate the establishment of Aceh-based political parties that meet national establishment of Aceh-based political parties that meet national criteria”criteria”“…“…GOI will create within one year or at the latest 18 months GOI will create within one year or at the latest 18 months from the signing of the MoU the political and legal conditions for from the signing of the MoU the political and legal conditions for the establishment of local political parties in Aceh in the establishment of local political parties in Aceh in consultation with DPR” consultation with DPR”

The DPR followed the proposal of the GOI drafting The DPR followed the proposal of the GOI drafting team and included regulations on local political team and included regulations on local political parties right into the LOGA instead of “creating the parties right into the LOGA instead of “creating the legal conditions” later by revising the Law on legal conditions” later by revising the Law on Political Parties, with the stipulation that the Political Parties, with the stipulation that the implementing Government Regulation (PP) will be implementing Government Regulation (PP) will be issued at the latest by February 2007 (issued at the latest by February 2007 (§ 257).§ 257).

MoU: Political Participation (2/2)MoU: Political Participation (2/2)

The MoU (Article 1.2.2) stipulates that The MoU (Article 1.2.2) stipulates that ““Upon the signature of this MoU, the people of Aceh will have the Upon the signature of this MoU, the people of Aceh will have the right to nominate candidatesright to nominate candidates for the position of all elected officials to for the position of all elected officials to contest the elections in Aceh in April 2006 and thereafter”, andcontest the elections in Aceh in April 2006 and thereafter”, and““Free and fair local elections will be organised Free and fair local elections will be organised under the new LOGAunder the new LOGA to elect the head of the Aceh administration and other elected to elect the head of the Aceh administration and other elected officials in April 2006 as well as the legislature of Aceh in 2009”officials in April 2006 as well as the legislature of Aceh in 2009”

This stipulation is interpreted by GAM, other This stipulation is interpreted by GAM, other stakeholders in Aceh and many observers as an stakeholders in Aceh and many observers as an agreement to allow agreement to allow independent candidatesindependent candidates to run in to run in local elections.local elections.After serious internal discussions, this interpretation of After serious internal discussions, this interpretation of the MoU was accepted both by the GOI drafting team the MoU was accepted both by the GOI drafting team and DPR and was accommodated in the LOGA, and DPR and was accommodated in the LOGA, however with the provision that independent candidates however with the provision that independent candidates will only be allowed for the first elections after the will only be allowed for the first elections after the enactment of the LOGA (enactment of the LOGA (§ 256).§ 256).

MoU: Foreign LoansMoU: Foreign Loans

The MoU (Article 1.3.1) stipulates thatThe MoU (Article 1.3.1) stipulates that““Aceh has the right to raise funds with external loans.”Aceh has the right to raise funds with external loans.”

Has been adopted in the LOGA by saying: Has been adopted in the LOGA by saying: ““The Government of Aceh and Kabupaten/Kota governments can The Government of Aceh and Kabupaten/Kota governments can obtain loans obtain loans from the (central) governmentfrom the (central) government that originate from that originate from foreign funds or from other sources than foreign loans, with the foreign funds or from other sources than foreign loans, with the approval of the Minister of Finance after receiving the approval of the Minister of Finance after receiving the considerations of the Minister of Home Affairs.” (considerations of the Minister of Home Affairs.” (§ 186, 1), and§ 186, 1), and“…“…further stipulations will be regulated by (provincial) Qanun further stipulations will be regulated by (provincial) Qanun based based on laws and regulationson laws and regulations” (§ 186, 3)” (§ 186, 3)

While the wording of the MoU suggests that the While the wording of the MoU suggests that the Government of Aceh could directly borrow from foreign Government of Aceh could directly borrow from foreign lenders (which would be a marked difference to the lenders (which would be a marked difference to the regulations that apply for other regions), the LOGA limits regulations that apply for other regions), the LOGA limits the possibilities of foreign loans to the same procedures the possibilities of foreign loans to the same procedures that apply in general, namely borrowing that apply in general, namely borrowing through the through the central governmentcentral government (according to Law 33/2004). (according to Law 33/2004).

MoU: Interest RatesMoU: Interest RatesThe MoU (Article 1.3.1.) stipulates thatThe MoU (Article 1.3.1.) stipulates that

““Aceh has the right to set interest rates beyond that set by the Aceh has the right to set interest rates beyond that set by the Central Bank of the Republic of Indonesia”Central Bank of the Republic of Indonesia”

Has been translated into the LOGA by saying (Has been translated into the LOGA by saying (§ 196)§ 196)::““The Government of Aceh has the authority to issue regulations on The Government of Aceh has the authority to issue regulations on the provision of credits by banks and non-bank financial institutions the provision of credits by banks and non-bank financial institutions in Aceh, as long as they are not in contradiction to laws and in Aceh, as long as they are not in contradiction to laws and regulations”, andregulations”, andThe Government of Aceh can set certain interest rates after having The Government of Aceh can set certain interest rates after having agreed on it with the concerned banks and non-bank financial agreed on it with the concerned banks and non-bank financial institutions”, andinstitutions”, andThe Government of Aceh can bear the burden of the difference in The Government of Aceh can bear the burden of the difference in interest rates in favor of certain development programs that have interest rates in favor of certain development programs that have been agreed upon by DPRA.been agreed upon by DPRA.

The stipulation of the MoU (the purpose of which was not The stipulation of the MoU (the purpose of which was not quite clear from the outset) has been translated into a quite clear from the outset) has been translated into a regulation that may not be relevant in reality.regulation that may not be relevant in reality.

MoU: TaxesMoU: Taxes

The MoU (Article 1.3.2.) stipulates:The MoU (Article 1.3.2.) stipulates:““Aceh has the right to set and raise taxes to fund official internal Aceh has the right to set and raise taxes to fund official internal activities”activities”

Has been regulated in the LOGA in line with the existing Has been regulated in the LOGA in line with the existing regulations of Law 32/2004 on Regional Government regulations of Law 32/2004 on Regional Government and Law 33/2004 on the Fiscal Balance between the and Law 33/2004 on the Fiscal Balance between the Centre and the Regions, which together with Law Centre and the Regions, which together with Law 34/2000 on Regional Taxes and Levies allow all 34/2000 on Regional Taxes and Levies allow all provincial and district governments to set their own taxes provincial and district governments to set their own taxes based on criteria given in the Law 34/2000.based on criteria given in the Law 34/2000.While LOGA stipulations can be seen as being in line While LOGA stipulations can be seen as being in line with the MoU, this may not hold true any more once the with the MoU, this may not hold true any more once the revision of Law 34/2000 has been enacted, which will revision of Law 34/2000 has been enacted, which will most likely cancel the regions’ right to set own taxes. most likely cancel the regions’ right to set own taxes.

MoU: Trade, Foreign Direct MoU: Trade, Foreign Direct Investment and TourismInvestment and Tourism

The MoU stipulates thatThe MoU stipulates that““Aceh has the right to conduct trade and business internally and Aceh has the right to conduct trade and business internally and internationally and to seek foreign direct investment and tourism to internationally and to seek foreign direct investment and tourism to Aceh”Aceh”

Has been adopted in the LOGA by saying:Has been adopted in the LOGA by saying:““The people in Aceh can conduct trade and investment internally The people in Aceh can conduct trade and investment internally and internationally according to laws and regulations” (and internationally according to laws and regulations” ( § 165, 1), § 165, 1), andand “ “The Government of Aceh and the Kabupaten/Kota governments The Government of Aceh and the Kabupaten/Kota governments can according to their authority attract foreign tourists and can issue can according to their authority attract foreign tourists and can issue related licenses for investments in form of domestic and foreign related licenses for investments in form of domestic and foreign investments as well as export and import licenses following national investments as well as export and import licenses following national norms, standards and procedures “norms, standards and procedures “(( § 165, 2). § 165, 2).

The MoU has been fulfilled; however, according to these The MoU has been fulfilled; however, according to these provisions, Aceh will in practical terms have the same provisions, Aceh will in practical terms have the same rights in this field as those given to all other regions.rights in this field as those given to all other regions.

MoU: Living Natural Resources in MoU: Living Natural Resources in the Sea (1/3)the Sea (1/3)

The MoU stipulates that “Aceh will have the The MoU stipulates that “Aceh will have the jurisdictionjurisdiction over living over living natural resources in the natural resources in the territorialterritorial sea surrounding Aceh” (where sea surrounding Aceh” (where “territorial” obviously is meant to be identical with the 12 mile zone)“territorial” obviously is meant to be identical with the 12 mile zone)Has been translated into the LOGA (Has been translated into the LOGA (§ 156) by saying: § 156) by saying:

““The Government of Aceh and the Kabupaten/Kota governments The Government of Aceh and the Kabupaten/Kota governments managemanage natural resources in Aceh on land and in the sea of the natural resources in Aceh on land and in the sea of the Aceh region Aceh region according to their authorityaccording to their authority”, where management ”, where management meansmeans““planning, implementation, as well as utilization and supervision of planning, implementation, as well as utilization and supervision of business activities that can be exploration, exploitation and business activities that can be exploration, exploitation and cultivation”, where natural resources include cultivation”, where natural resources include ““the mining sector, which comprises the mining of minerals, coal the mining sector, which comprises the mining of minerals, coal and geothermal energy, as well as the sectors of forestry, and geothermal energy, as well as the sectors of forestry, agriculture, fisheries and maritime resources…”agriculture, fisheries and maritime resources…”““the business activities (mentioned above) can be performed by the business activities (mentioned above) can be performed by state enterprises, regional enterprises, cooperatives, national and state enterprises, regional enterprises, cooperatives, national and foreign private companies” , howeverforeign private companies” , however““in implementing above stipulations, in implementing above stipulations, standards, norms and standards, norms and procedures set by the central government have to be followedprocedures set by the central government have to be followed..” ”


The LOGA stipulates further (§ 162): The LOGA stipulates further (§ 162): ““The Government of Aceh and the Kabupaten/Kota The Government of Aceh and the Kabupaten/Kota Governments have the authority to Governments have the authority to managemanage living natural living natural resources in the sea of the Aceh region”, where managing resources in the sea of the Aceh region”, where managing meansmeans““conservation and management of natural resources in the conservation and management of natural resources in the sea; sea; regulatingregulating the administration and the licensing for fishing the administration and the licensing for fishing and aquaculture; and aquaculture; regulatingregulating spatial planning in the sea, in spatial planning in the sea, in coastal areas and on small islands; coastal areas and on small islands; enforcing regulationsenforcing regulations that that have been issued for the maritime territory that is under their have been issued for the maritime territory that is under their authority; safeguard traditional rights of the sea and security authority; safeguard traditional rights of the sea and security of the sea; and joining in safeguarding the sovereignty of the of the sea; and joining in safeguarding the sovereignty of the Republic of Indonesia”, and Republic of Indonesia”, and ““The Government of Aceh and Kabupaten/Kota have the The Government of Aceh and Kabupaten/Kota have the authority to issue licenses for fishing and for the utilization of authority to issue licenses for fishing and for the utilization of other maritime resources in the sea surrounding (!) Aceh other maritime resources in the sea surrounding (!) Aceh according to their authorityaccording to their authority”.”.


The authorities given to Aceh by the LOGA to manage its The authorities given to Aceh by the LOGA to manage its territorial sea are basically the territorial sea are basically the same that apply to all regionssame that apply to all regions according to Law 32/2004 (according to Law 32/2004 (§ 18)§ 18), the implementation of , the implementation of which is to follow which is to follow further implementing laws and regulationsfurther implementing laws and regulationsThe LOGA does (different to Law 32/2004) neither in The LOGA does (different to Law 32/2004) neither in § 156 § 156 nor in § 162 stipulate that there will be further implementing nor in § 162 stipulate that there will be further implementing regulations required, however the authorities of Aceh are in regulations required, however the authorities of Aceh are in fact also limited byfact also limited by– the aforementioned stipulations of § 156 (6) on standards, norms and the aforementioned stipulations of § 156 (6) on standards, norms and

procedures in managing natural resources, and procedures in managing natural resources, and – the stipulations of § 165 (3), which allow the Government of Aceh and the stipulations of § 165 (3), which allow the Government of Aceh and

Kabupaten/Kota to issue all kinds of licenses (including fisheries in 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 the 12-mile zone for the province, and in one third of this zone for Kabupaten/Kota) according to their authority following Kabupaten/Kota) according to their authority following national national norms, standards and procedures.norms, standards and procedures.

MoU: Revenues from Natural MoU: Revenues from Natural ResourcesResources

The MoU stipulates thatThe MoU stipulates that““Aceh is entitled to Aceh is entitled to retainretain seventy (70) per centseventy (70) per cent of the revenues from all current of the revenues from all current and future hydrocarbon deposits and other natural resources in the territory of and future hydrocarbon deposits and other natural resources in the territory of Aceh as well as in the territorial sea surrounding Aceh”Aceh as well as in the territorial sea surrounding Aceh”

Has been accommodated in the LOGA regulations on shared revenues Has been accommodated in the LOGA regulations on shared revenues ( ( § 181, 1 b) § 181, 1 b) which stipulates that Aceh receives:which stipulates that Aceh receives:

80 % from Forestry, Fisheries, General Mining, Geothermal Energy (like all other 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 regions, in line with regulations of Law 33/2004 on “Fiscal Balance Between the Central Government and the Regions”)Central Government and the Regions”)70% from oil revenues (other regions 15.5%)70% from oil revenues (other regions 15.5%)70% from gas revenues (other regions 30.5%)70% from gas revenues (other regions 30.5%)

The wording of the MoU is frequently interpreted as the right of Aceh to 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 directly keep its share of revenues generated in Aceh and forward the remainder to the central government, howeverremainder to the central government, howeverthe LOGA (the LOGA (§ 181, 2)§ 181, 2) foresees the same process for revenue collection foresees the same process for revenue collection by the central government and redistribution to Aceh as for the other by the central government and redistribution to Aceh as for the other regions (albeit with greater transparency, as will be seen later).regions (albeit with greater transparency, as will be seen later).

MoU: Seaports and Airports (1/7)MoU: Seaports and Airports (1/7)

The MoU stipulates thatThe MoU stipulates that““Aceh conducts the development and Aceh conducts the development and administration of administration of allall seaports and airports within seaports and airports within the territory of Aceh.”the territory of Aceh.”

Has been translated into several Has been translated into several paragraphs of the LOGA in a somewhat paragraphs of the LOGA in a somewhat confusing manner iconfusing manner in § 19, § 172, § 173 n § 19, § 172, § 173 and § 254.and § 254.


LOGA § 19 says:LOGA § 19 says:““Kabupaten and Kota governmentsKabupaten and Kota governments have the authority to have the authority to operate seaports and general airports”operate seaports and general airports”““The said seaports and airports are those that have been The said seaports and airports are those that have been operated by the central government before this law became operated by the central government before this law became effective”effective”““The Government of Aceh coordinates with the The Government of Aceh coordinates with the Kabupaten/Kota governments in operating the said seaports Kabupaten/Kota governments in operating the said seaports and general airports”and general airports”““The said seaports and general airports can be operated by The said seaports and general airports can be operated by Regional Enterprises”Regional Enterprises”

– With the elucidations saying:With the elucidations saying:that the regulation refers to all seaports (including inter-that the regulation refers to all seaports (including inter-insular ports) and general airports (including pioneer insular ports) and general airports (including pioneer airstrips) that have been operated by the central government, airstrips) that have been operated by the central government, except for those which at the time of the enactment of the except for those which at the time of the enactment of the law have been operated by BUMN. law have been operated by BUMN.


LOGA LOGA § 172 § 172 says: says: ““The Government, the Government of Aceh and The Government, the Government of Aceh and the Kabupaten/Kota governments can build the Kabupaten/Kota governments can build seaports and general airports in Aceh”, andseaports and general airports in Aceh”, and““The management of seaports and airports built by The management of seaports and airports built by the Government of Aceh and by Kabupaten/Kota the Government of Aceh and by Kabupaten/Kota governments will be implemented by the governments will be implemented by the Government of Aceh and/or by Kabupaten/Kota Government of Aceh and/or by Kabupaten/Kota governments”, andgovernments”, and““The construction and management of seaports The construction and management of seaports and airports is further regulated by Qanun in and airports is further regulated by Qanun in accordance with existing norms, standards and accordance with existing norms, standards and procedures”procedures”


LOGA LOGA § 173§ 173 says: says:““Seaports and general airports which at the time Seaports and general airports which at the time when this law becomes effective are being when this law becomes effective are being managed by state enterprises (BUMN) will be managed by state enterprises (BUMN) will be operated in cooperation with the Government of operated in cooperation with the Government of Aceh and/or Kabupaten/Kota governments”Aceh and/or Kabupaten/Kota governments”““The said cooperation can be implemented in form The said cooperation can be implemented in form of a statutory enterprise according to existing of a statutory enterprise according to existing norms, standards and procedures”norms, standards and procedures”““The cooperation in managing seaports and The cooperation in managing seaports and general airports which had been operated by general airports which had been operated by BUMN is executed according to existing norms, BUMN is executed according to existing norms, standards and procedures”standards and procedures”


In addition, LOGA § 254 says:In addition, LOGA § 254 says:““The transfer of authorities for operating seaports The transfer of authorities for operating seaports and general airports from the central government and general airports from the central government to Kabupaten/Kota governments as regulated in to Kabupaten/Kota governments as regulated in § 19 will be implemented at the latest at the § 19 will be implemented at the latest at the beginning of the FY 2008”, and beginning of the FY 2008”, and ““The operation of seaports and general airports The operation of seaports and general airports that existed at the time when this law became that existed at the time when this law became effective, which according to § 173 has to be effective, which according to § 173 has to be executed by BUMN in cooperation with the executed by BUMN in cooperation with the Government of Aceh and Kabupaten/Kota Government of Aceh and Kabupaten/Kota governments, will be implemented at the latest at governments, will be implemented at the latest at the beginning of FY 2008” the beginning of FY 2008”


In summary, the LOGA stipulates thatIn summary, the LOGA stipulates thatAfter the enactment of the law, the provincial and district After the enactment of the law, the provincial and district governments can build and operate seaports and general governments can build and operate seaports and general airports airports according to national norms, standards and according to national norms, standards and proceduresprocedures

Seaports and general airports that have been operated by Seaports and general airports that have been operated by the central government (not through BUMN) at the time of the central government (not through BUMN) at the time of the enactment of the law have to be handed over to the enactment of the law have to be handed over to district district governmentsgovernments at the latest by the beginning of 2008, and at the latest by the beginning of 2008, and

Seaports and general airports that have been operated by Seaports and general airports that have been operated by BUMN at the time of the enactment of the law have to be BUMN at the time of the enactment of the law have to be operated jointlyoperated jointly by the BUMN and provincial/district by the BUMN and provincial/district governments, starting at the latest by the beginning of 2008. governments, starting at the latest by the beginning of 2008.


The wording of the MoU has been The wording of the MoU has been interpreted by various stakeholders in interpreted by various stakeholders in Aceh as the right of Aceh to take over all Aceh as the right of Aceh to take over all existing seaports and airports, while the existing seaports and airports, while the LOGA clearly limits this right to seaports LOGA clearly limits this right to seaports and airports that have been operated by and airports that have been operated by the central government on its own (not the central government on its own (not through BUMN), of which there are only a through BUMN), of which there are only a few in Aceh.few in Aceh.

MoU: Free Domestic TradeMoU: Free Domestic Trade

The MoU stipulates thatThe MoU stipulates that““Aceh will enjoy free trade with all other parts of the Republic Aceh will enjoy free trade with all other parts of the Republic of Indonesia unhindered by taxes, tariffs or other restrictions”of Indonesia unhindered by taxes, tariffs or other restrictions”

Has been accommodated in the LOGA (Has been accommodated in the LOGA (§ 163)§ 163) by saying:by saying:

““The Government, the Government of Aceh and the The Government, the Government of Aceh and the Kabupaten/Kota governments guarantee the implementation Kabupaten/Kota governments guarantee the implementation of internal trade in Aceh free of any restrictions”, and thatof internal trade in Aceh free of any restrictions”, and that

““The inhabitants of Aceh can freely perform trade in the The inhabitants of Aceh can freely perform trade in the territory of Indonesia by land, sea and air unhindered by territory of Indonesia by land, sea and air unhindered by taxes, tariffs and other trade restrictions, except for trade with taxes, tariffs and other trade restrictions, except for trade with regions that are separated from the customs territory of regions that are separated from the customs territory of Indonesia.”Indonesia.”

MoU: Access to Foreign Countries MoU: Access to Foreign Countries

The MoU stipulates thatThe MoU stipulates that““Aceh will enjoy direct and unhindered access to Aceh will enjoy direct and unhindered access to foreign countries, by sea and air.”foreign countries, by sea and air.”

Has been vaguely translated into the Has been vaguely translated into the LOGA (LOGA (§ 165§ 165,1,1)) by saying: by saying:

““The inhabitants of Aceh can implement trade and The inhabitants of Aceh can implement trade and investments, both domestic and international, investments, both domestic and international, according to laws and regulationsaccording to laws and regulations.”.”

MoU: Transparency of Revenue MoU: Transparency of Revenue Collection and AllocationCollection and Allocation

The MoU stipulates thatThe MoU stipulates that““GOI commits to the transparency of the collection and GOI commits to the transparency of the collection and allocation of revenues between the Central Government and allocation of revenues between the Central Government and Aceh by agreeing to outside auditors to verify this activity and Aceh by agreeing to outside auditors to verify this activity and to communicate the results to the head of the Aceh to communicate the results to the head of the Aceh administration”administration”

Has been translated into the LOGA (Has been translated into the LOGA (§ 194)§ 194) by by saying:saying:

““The central government will apply the principle of The central government will apply the principle of transparency in collecting and allocating revenues that transparency in collecting and allocating revenues that originate from Aceh”, and originate from Aceh”, and ““In implementing transparency, the Government of Aceh can In implementing transparency, the Government of Aceh can use an independent auditor that will be nominated by the use an independent auditor that will be nominated by the Board of Auditors (BPK) to perform audits Board of Auditors (BPK) to perform audits according to laws according to laws and regulationsand regulations”, (elucidation: independent auditors are ”, (elucidation: independent auditors are specialists and/or auditors from outside BPK who work for specialists and/or auditors from outside BPK who work for and in the name of BPK), andand in the name of BPK), and““BPK submits the results of the audits to the central BPK submits the results of the audits to the central government and to the Government of Aceh”.government and to the Government of Aceh”.

MoU: Human RightsMoU: Human Rights

The MoU stipulates thatThe MoU stipulates that““GOI will adhere to the United Nations International Covenants on GOI will adhere to the United Nations International Covenants on Civil and Political Rights and on Economic, Social and Cultural Civil and Political Rights and on Economic, Social and Cultural Rights’Rights’

Had been accommodated in the draft LOGA as Had been accommodated in the draft LOGA as submitted to the DPR, by saying:submitted to the DPR, by saying:

““The central government, the government of Aceh and the The central government, the government of Aceh and the Kabupaten/Kota governments are obliged to fulfill, promote and Kabupaten/Kota governments are obliged to fulfill, promote and enforce human rights as stipulated in international covenants that enforce human rights as stipulated in international covenants that have already been translated into laws and regulations”, andhave already been translated into laws and regulations”, and““This obligation includes the acknowledgement and protection of This obligation includes the acknowledgement and protection of minority groups and tribes in Aceh.”minority groups and tribes in Aceh.”

This provision has not been maintained in the LOGA as This provision has not been maintained in the LOGA as approved by the DPR, because it is a general obligation approved by the DPR, because it is a general obligation of the GOI that is not only related to Aceh, howeverof the GOI that is not only related to Aceh, however

The LOGA contains an extensive list of human/civil rights (equality The LOGA contains an extensive list of human/civil rights (equality before the law, freedom of speech, freedom of the press, freedom of before the law, freedom of speech, freedom of the press, freedom of association, freedom to demonstrate etc. etc.) association, freedom to demonstrate etc. etc.)

MoU: Human Rights Court (1/4)MoU: Human Rights Court (1/4)

The MoU stipulates thatThe MoU stipulates that““A Human Rights Court will be established for Aceh”A Human Rights Court will be established for Aceh”

Has been fully accommodated in the draft LOGA Has been fully accommodated in the draft LOGA by saying in § 228:by saying in § 228:

““In order to investigate, pass judgment on and resolve cases In order to investigate, pass judgment on and resolve cases of human rights violations that have occurred after this law of human rights violations that have occurred after this law has become effective, a Human Rights Court will be has become effective, a Human Rights Court will be established in Aceh”established in Aceh”““The judgments passed by the Human Rights Court impose The judgments passed by the Human Rights Court impose among othersamong others compensation, restitution, and/or rehabilitation compensation, restitution, and/or rehabilitation for the victims of human rights violations.”for the victims of human rights violations.”

……and in § 259:and in § 259:““The Human Rights Court has to be established at the latest The Human Rights Court has to be established at the latest one year after this law has become effective.”one year after this law has become effective.”


Even though the stipulations of the MoU have Even though the stipulations of the MoU have clearly been fulfilled by the LOGA, the clearly been fulfilled by the LOGA, the regulations on the Human Rights Court have regulations on the Human Rights Court have met with criticism by various parties formet with criticism by various parties for1. the lack of provisions for retro-active justice1. the lack of provisions for retro-active justice

2. the lack of provisions for punishments of perpetrators 2. the lack of provisions for punishments of perpetrators of human rights violations.of human rights violations.

In assessing the regulations on the Aceh Human In assessing the regulations on the Aceh Human Rights Court, the following facts have to be Rights Court, the following facts have to be taken into consideration:taken into consideration:


The The Law 26/2000 on the Human Rights CourtLaw 26/2000 on the Human Rights Court continues continues to apply for Aceh in line with the stipulation of to apply for Aceh in line with the stipulation of § 269 of § 269 of the LOGA that all laws and regulations that existed at the the LOGA that all laws and regulations that existed at the time the LOGA became effective will continue to apply time the LOGA became effective will continue to apply as long as they are not in conflict with the LOGA.as long as they are not in conflict with the LOGA.As the LOGA does not stipulate that the Human Rights As the LOGA does not stipulate that the Human Rights Court is established by the LOGA (different from the Court is established by the LOGA (different from the Truth and Reconciliation Commission), and does not Truth and Reconciliation Commission), and does not foresee a specific implementing regulation on the Human foresee a specific implementing regulation on the Human Rights Court, it must be assumed that the establishment Rights Court, it must be assumed that the establishment of the court will follow the regulations of Law 26/2000.of the court will follow the regulations of Law 26/2000.As the Law 26/2000 foresees the establishment of a As the Law 26/2000 foresees the establishment of a Human Rights Court in Medan with jurisdiction over Human Rights Court in Medan with jurisdiction over Aceh, the Law 26/2000 must possibly be amended to Aceh, the Law 26/2000 must possibly be amended to provide for the establishment of a Human Rights Court in provide for the establishment of a Human Rights Court in AcehAceh


The functions of the future Human Rights Court in Aceh would The functions of the future Human Rights Court in Aceh would according to aforementioned conclusions follow the regulations of according to aforementioned conclusions follow the regulations of the Law 26/2000, which provide for severe the Law 26/2000, which provide for severe punishmentspunishments for human for human rights violations (including capital punishment); this would not be in rights violations (including capital punishment); this would not be in contradiction to the LOGA, as it leaves the possibility for other contradiction to the LOGA, as it leaves the possibility for other sanctions than “compensation, restitution, and/or rehabilitation” sanctions than “compensation, restitution, and/or rehabilitation” open. open. Regarding Regarding retro-active justiceretro-active justice, the Law 26/2000 foresees that , the Law 26/2000 foresees that severe human rights violations that occurred before the enactment severe human rights violations that occurred before the enactment of the law (23 November 2000) will be treated by Ad-hoc Human of the law (23 November 2000) will be treated by Ad-hoc Human Rights Courts, which can be established upon the proposal of the Rights Courts, which can be established upon the proposal of the DPR by Presidential Decree; the procedures of the ad-hoc courts DPR by Presidential Decree; the procedures of the ad-hoc courts are the same as those of the regular Human Rights Courts.are the same as those of the regular Human Rights Courts.The problem that may arise here is that human rights violations that The problem that may arise here is that human rights violations that occurred between November 2000 and the time when the Aceh occurred between November 2000 and the time when the Aceh Human Rights Court is established, may not be covered by the Human Rights Court is established, may not be covered by the possibility of retro-active justice, unless an amendment of Law possibility of retro-active justice, unless an amendment of Law 26/2000 provides for it.26/2000 provides for it.

MoU: Truth and Reconciliation MoU: Truth and Reconciliation CommissionCommission

The MoU stipulates thatThe MoU stipulates that““A Commission for Truth and Reconciliation will be established for Aceh by A Commission for Truth and Reconciliation will be established for Aceh by the Indonesian Commission of Truth and Reconciliation with the task of the Indonesian Commission of Truth and Reconciliation with the task of formulating and determining reconciliation measures”formulating and determining reconciliation measures”

Has been accommodated in Has been accommodated in § 229 of the LOGA by stipulating:§ 229 of the LOGA by stipulating:““In order to seek for truth and reconciliation, a Truth and Reconciliation In order to seek for truth and reconciliation, a Truth and Reconciliation Commission in Aceh is established Commission in Aceh is established by this lawby this law””““The Truth and Reconciliation Commission in Aceh is an inseparable part of The Truth and Reconciliation Commission in Aceh is an inseparable part of the Truth and Reconciliation Commission”the Truth and Reconciliation Commission”““The Truth and Reconciliation Commission in Aceh The Truth and Reconciliation Commission in Aceh works on the basis of works on the basis of laws and regulationslaws and regulations” (elucidation: Law 27/2004 on the Truth and ” (elucidation: Law 27/2004 on the Truth and Reconciliation Commission), andReconciliation Commission), and““In dealing with cases of human rights violations in Aceh, the Truth and In dealing with cases of human rights violations in Aceh, the Truth and Reconciliation Commission in Aceh can take Adat principles into Reconciliation Commission in Aceh can take Adat principles into consideration that are still alive among the Aceh community”consideration that are still alive among the Aceh community”

……and in § 230 by saying that further stipulations on the election of and in § 230 by saying that further stipulations on the election of members and the organization, procedures and financing of the members and the organization, procedures and financing of the commission will be regulated by a commission will be regulated by a provincial Qanun based on provincial Qanun based on existing laws and regulationsexisting laws and regulations. .

MoU: The Police (1/2)MoU: The Police (1/2)The MoU (Article 4.10) states:The MoU (Article 4.10) states:

““Organic police forces will be responsible for upholding Organic police forces will be responsible for upholding internal law and order in Aceh”internal law and order in Aceh”

The LOGA (The LOGA (§ 204) § 204) states among others:states among others:““The Police Force in Aceh constitutes part of the National The Police Force in Aceh constitutes part of the National Police.”Police.”““The police in Aceh has the task to safeguard the security The police in Aceh has the task to safeguard the security and public order, enforce the law, protect, secure and serve and public order, enforce the law, protect, secure and serve the people, and implement other tasks which are assigned by the people, and implement other tasks which are assigned by laws and regulations”laws and regulations”““Policies on public tranquility and order in Aceh are Policies on public tranquility and order in Aceh are coordinated between the Head of the Aceh Police Force and coordinated between the Head of the Aceh Police Force and the Governorthe Governor””““In implementing duties regarding public tranquility and order, In implementing duties regarding public tranquility and order, the Head of the Aceh Police Force the Head of the Aceh Police Force is responsible to the is responsible to the GovernorGovernor.”.”

MoU: The Police (2/2)MoU: The Police (2/2)The MoU (Article 1.4.4) states:The MoU (Article 1.4.4) states:

““The appointment of the Chief of the organic police forces and the The appointment of the Chief of the organic police forces and the prosecutors shall be prosecutors shall be approved by the head of the Aceh administrationapproved by the head of the Aceh administration. The . The recruitment and training of organic police forces and prosecutors will take recruitment and training of organic police forces and prosecutors will take place in consultation with and place in consultation with and with the consent of the head of the Aceh with the consent of the head of the Aceh administrationadministration in compliance with the applicable national standards.” in compliance with the applicable national standards.”

The LOGA (The LOGA (§ 205) states among others:§ 205) states among others:““The Head of the Aceh Police Force is appointed by the Head of the National The Head of the Aceh Police Force is appointed by the Head of the National Police with the Police with the approval of the Governorapproval of the Governor.”.”

The LOGA (The LOGA (§ 207) states among others:§ 207) states among others:““The Aceh Police Force selects officers taking into consideration legal The Aceh Police Force selects officers taking into consideration legal norms, syari’at, culture and traditional customs, and norms, syari’at, culture and traditional customs, and policies of the Governor policies of the Governor of Acehof Aceh.”.”““Basic education for police candidates and general training for officers of the Basic education for police candidates and general training for officers of the Aceh police force will follow a curriculum with local contents, emphasizing Aceh police force will follow a curriculum with local contents, emphasizing human rights.”human rights.”“”“”The education and guidance for POLRI officers who originate from Aceh is The education and guidance for POLRI officers who originate from Aceh is conducted nationally by POLRI.”conducted nationally by POLRI.”““The placement of police officers from outside Aceh in Aceh is is decided 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 upon by the Head of the National Police, taking into consideration legal norms, syari’at Islam, culture and traditional customs.”norms, syari’at Islam, culture and traditional customs.”

These arrangements of the LOGA and those in These arrangements of the LOGA and those in § 204 § 204 give the give the Governor substantially more rights regarding police matters than Governor substantially more rights regarding police matters than he/she has in other regions.he/she has in other regions.

MoU: The ProsecutorsMoU: The Prosecutors

The LOGA (The LOGA (§ 208) states:§ 208) states:““Prosecutors in Aceh constitute part of the institution of Prosecutors in Aceh constitute part of the institution of Attorney General of the Republic of Indonesia”Attorney General of the Republic of Indonesia”““The Prosecutors in Aceh implement tasks and technical The Prosecutors in Aceh implement tasks and technical policies in the field of law enforcement including policies in the field of law enforcement including implementation of syari’at Islam”implementation of syari’at Islam”

The LOGA (§ 209) states:The LOGA (§ 209) states:““The appointment of prosecutors in Aceh is conducted by the The appointment of prosecutors in Aceh is conducted by the Attorney General (Jaksa Agung) Attorney General (Jaksa Agung) with the consent of the with the consent of the GovernorGovernor””

This arrangement of the LOGA gives the This arrangement of the LOGA gives the governor authority regarding the prosecutors in governor authority regarding the prosecutors in his/her region that governors in other regions do his/her region that governors in other regions do not avail of.not avail of.

MoU: Military Forces (1/3)MoU: Military Forces (1/3)The MoU (Article 4.1.1) states:The MoU (Article 4.1.1) states:

““Military forces will be responsible for upholding Military forces will be responsible for upholding externalexternal defence of defence of Aceh. In normal peacetime circumstances only organic military Aceh. In normal peacetime circumstances only organic military forces will be present in Aceh” forces will be present in Aceh”

The LOGA (The LOGA (§ 202) § 202) states:states:““The Indonesian Armed Forces (TNI) are responsible for The Indonesian Armed Forces (TNI) are responsible for maintaining the security of the state and for other duties in maintaining the security of the state and for other duties in Aceh Aceh in accordance with laws and regulationsin accordance with laws and regulations”.”.““Maintaining the security of the state comprises Maintaining the security of the state comprises maintaining, maintaining, protecting and securing the unity and sovereignty of the protecting and securing the unity and sovereignty of the Unitary Republic of Indonesia and other duties in Aceh in Unitary Republic of Indonesia and other duties in Aceh in accordance with laws and regulations.”accordance with laws and regulations.”““Other duties as mentioned above like dealing with natural Other duties as mentioned above like dealing with natural disasters, constructing communication infrastructure, and disasters, constructing communication infrastructure, and other humanitarian tasks are implemented after consultations other humanitarian tasks are implemented after consultations with the Governor of Aceh” with the Governor of Aceh” ““The members of the TNI that are on duty in Aceh must hold The members of the TNI that are on duty in Aceh must hold the the universal principles of human rightsuniversal principles of human rights in high esteem and in high esteem and honor the culture and traditional customs of Aceh.”honor the culture and traditional customs of Aceh.”

MoU: Military Forces (2/3)MoU: Military Forces (2/3)

The reference of the LOGA to existing laws and The reference of the LOGA to existing laws and regulations, in this case the Law 34/2004 on the regulations, in this case the Law 34/2004 on the Indonesian Armed Forces, indicates that the TNI in Aceh Indonesian Armed Forces, indicates that the TNI in Aceh will have the same duties as everywhere in the nation.will have the same duties as everywhere in the nation.The TNI in Aceh would therefore according to The TNI in Aceh would therefore according to § 6,1,c § 6,1,c and respective elucidations of Law 34/2004 and respective elucidations of Law 34/2004 have the have the same far-reaching mandate in dealing with internal same far-reaching mandate in dealing with internal security disturbances (albeit in cooperation with other security disturbances (albeit in cooperation with other institutions).institutions).The sentence that mentions “other duties” of the TNI that The sentence that mentions “other duties” of the TNI that need consultations with the Governor refers only to need consultations with the Governor refers only to disaster-related and humanitarian tasks of the TNI, but disaster-related and humanitarian tasks of the TNI, but obviously not to the tasks related to internal security obviously not to the tasks related to internal security disturbances as intended in disturbances as intended in § 6,1,c of Law 34/2004.§ 6,1,c of Law 34/2004.

MoU: Military Forces (3/3)MoU: Military Forces (3/3)

The MoU (Article 1.4.5.) states:The MoU (Article 1.4.5.) states:““All civilian crimes committed by military personnel in Aceh will be All civilian crimes committed by military personnel in Aceh will be tried in civil courts in Aceh”tried in civil courts in Aceh”

The LOGA (The LOGA (§ 203) states:§ 203) states:““Criminal offences committed by members of the TNI in Aceh will be Criminal offences committed by members of the TNI in Aceh will be trialed trialed in accordance with laws and regulationsin accordance with laws and regulations.”.”““Trials of members of the TNI as mentioned above are conducted Trials of members of the TNI as mentioned above are conducted openly and are open for the public unless determined otherwise by openly and are open for the public unless determined otherwise by laws and regulations.”laws and regulations.”

The reference of the LOGA to existing laws and regulations means The reference of the LOGA to existing laws and regulations means that (according to that (according to § 65,2 of Law 34/2004) § 65,2 of Law 34/2004) soldiers who have soldiers who have committed “military crimes” will be trialed according to Law 31/1997 committed “military crimes” will be trialed according to Law 31/1997 on Military Justice (which is in the process of being revised) by on Military Justice (which is in the process of being revised) by military courts (which according to Law 4/2004 on Judicial Authority, military courts (which according to Law 4/2004 on Judicial Authority, like all other courts, are under the Supreme Court) and those who like all other courts, are under the Supreme Court) and those who have committed “civilian crimes” will be trialed by civilian courts have committed “civilian crimes” will be trialed by civilian courts according to existing laws.according to existing laws.

Brief summary Brief summary

of some main features of some main features

of the LOGAof the LOGA

Relationship to Other LawsRelationship to Other Laws

The LOGAThe LOGA– adopts and expands the substance of Law 44/1999, which is adopts and expands the substance of Law 44/1999, which is

however not being revoked by the LOGAhowever not being revoked by the LOGA– adopts and expands the substance of Law 18/2001, which is adopts and expands the substance of Law 18/2001, which is

revoked by the LOGArevoked by the LOGA– adopts large parts of Law 32/2004 on Regional Government and adopts large parts of Law 32/2004 on Regional Government and

relevant parts of Law 33/2004 on Fiscal Balance between the relevant parts of Law 33/2004 on Fiscal Balance between the Central Government and the Regions, while at the same time all Central Government and the Regions, while at the same time all stipulations of these laws apply to Aceh as well, as long as there stipulations of these laws apply to Aceh as well, as long as there are no deviating regulations in the LOGAare no deviating regulations in the LOGA

– deals with the substance of numerous sectoral laws, modifying deals with the substance of numerous sectoral laws, modifying or adjusting it slightly to the Aceh situation, while at the same 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 time all stipulations of these laws apply to Aceh as well, as long as they do not contradict the LOGA (as they do not contradict the LOGA (§ 269,1)§ 269,1)..

In fact, the substance taken over from other laws that In fact, the substance taken over from other laws that apply to Aceh as well, needs not be repeated in the apply to Aceh as well, needs not be repeated in the LOGA, but the GOI drafting team and the DPR followed LOGA, but the GOI drafting team and the DPR followed the proposal from the DPRD of the Aceh Province.the proposal from the DPRD of the Aceh Province.

The Title The Title The title of the LOGA constitutes a translation of the title used in the 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 original (English) version of the MoU, while the official translation of the MoU into Bahasa Indonesia says: UU tentang the MoU into Bahasa Indonesia says: UU tentang “Penyelenggaraan Pemerintahan di Aceh”“Penyelenggaraan Pemerintahan di Aceh”The translation of the title is not a purely semantic issue, but highly The translation of the title is not a purely semantic issue, but highly political:political:– The English language title was chosen, because GAM and other The English language title was chosen, because GAM and other

relevant parties in Aceh want to avoid the terms “province”, relevant parties in Aceh want to avoid the terms “province”, “region = daerah”, “provincial government” and “regional “region = daerah”, “provincial government” and “regional government” (as they are used in Law 32/2004 and other laws) government” (as they are used in Law 32/2004 and other laws) to clearly manifest the special character of Aceh as “self to clearly manifest the special character of Aceh as “self governing entity = pemerintahan sendiri” governing entity = pemerintahan sendiri”

– The Constitution of 1945, to which the MoU and the draft LOGA The Constitution of 1945, to which the MoU and the draft LOGA refer, does not acknowledge the term “self government” but uses refer, does not acknowledge the term “self government” but uses the above mentioned terminologythe above mentioned terminology

– The title used for the LOGA could therefore only be accepted by The title used for the LOGA could therefore only be accepted by DPR in conjunction with the definition of the term “Aceh” as DPR in conjunction with the definition of the term “Aceh” as given in the “general stipulations” (Ketentuan Umum) of the given in the “general stipulations” (Ketentuan Umum) of the LOGA.LOGA.

The Definition of the Term “Aceh”The Definition of the Term “Aceh”The LOGA reads: “ Aceh is a The LOGA reads: “ Aceh is a ProvinceProvince (daerah provinsi) (daerah provinsi) that forms a legal community, which has a that forms a legal community, which has a special special charactercharacter (bersifat istimewa) and is (bersifat istimewa) and is given special given special authorityauthority (kewenangan khusus) to regulate and (kewenangan khusus) to regulate and implement its own government affairs and the interests implement its own government affairs and the interests of the local community, in accordance with laws and of the local community, in accordance with laws and regulations regulations within the system and the principles of the within the system and the principles of the Unitary State of the Republic of IndonesiaUnitary State of the Republic of Indonesia based on the based on the Basic Law of the Republic of Indonesia of 1945, which is Basic Law of the Republic of Indonesia of 1945, which is lead by a Governor.”lead by a Governor.”This definition declares Aceh clearly a government and This definition declares Aceh clearly a government and administrative unit that is administrative unit that is comparable to the other comparable to the other provincesprovinces of Indonesia, with the only difference that it is of Indonesia, with the only difference that it is being given special authority.being given special authority.The definition may not satisfy those who tried to promote The definition may not satisfy those who tried to promote the concept of Aceh as a “self governing region”, but it the concept of Aceh as a “self governing region”, but it was seen as the only compromise that can still be was seen as the only compromise that can still be justified under the constitution.justified under the constitution.

Levels of Levels of Government/Administration Government/Administration

The LOGA (The LOGA (§ 2) § 2) foresees the following levels of foresees the following levels of government/administration in Aceh:government/administration in Aceh:– Aceh (as province) consists of Aceh (as province) consists of Kabupaten/KotaKabupaten/Kota (same as (same as

other provinces)other provinces)– Kabupaten/Kota consist of Kabupaten/Kota consist of KecamatanKecamatan (same as other (same as other

Kabupaten/Kota)Kabupaten/Kota)– Kecamatan consist of Kecamatan consist of MukimMukim (not existing in other regions, (not existing in other regions,

but comparable to Nagari in West Sumatera)but comparable to Nagari in West Sumatera)– Mukim consist of Mukim consist of KelurahanKelurahan (an administrative su-structure of (an administrative su-structure of

Kabupaten/Kota without elected bodies, same as in other Kabupaten/Kota without elected bodies, same as in other regions) and regions) and GampongGampong (equal to villages = desa in other (equal to villages = desa in other regions)regions)

Note: Kelurahan have to be gradually changed into Gampong Note: Kelurahan have to be gradually changed into Gampong within 2 years after the law has become effective (within 2 years after the law has become effective (§ § 267).267).

Which Level Has Special Which Level Has Special Autonomy? (1/3)Autonomy? (1/3)

The LOGA contains some indications that the special autonomy The LOGA contains some indications that the special autonomy status is particularly given to Aceh as a status is particularly given to Aceh as a provinceprovince::– The title talks about the “Governing of The title talks about the “Governing of AcehAceh” (as a province)” (as a province)– The definition of “Aceh” as contained in the “Ketentuan Umum” says The definition of “Aceh” as contained in the “Ketentuan Umum” says

that that AcehAceh (being a province) is given special authority (being a province) is given special authorityFurther indications that the Further indications that the provinceprovince is given special jurisdiction over is given special jurisdiction over the Kabupaten/Kota:the Kabupaten/Kota:– According to According to § § 13, “The distribution of government functions related to 13, “The distribution of government functions related to

the syari’at Islam between the Government of Aceh and the syari’at Islam between the Government of Aceh and Kabupaten/Kota governments will be regulated by a Qanun of (the Kabupaten/Kota governments will be regulated by a Qanun of (the province of) province of) Aceh;Aceh;

– According to paragraph 182,2, the Government of Aceh has the According to paragraph 182,2, the Government of Aceh has the authority to manage the authority to manage the additionaladditional revenues from oil and gas, the revenues from oil and gas, the allocation of which for development projects (that are implemented by allocation of which for development projects (that are implemented by the provincial government) is regulated by the provincial government) is regulated by provincialprovincial Qanun (different Qanun (different from Law 18/2001, where only the distribution of the funds was from Law 18/2001, where only the distribution of the funds was supposed to be regulated by provincial Qanun);supposed to be regulated by provincial Qanun);

– The Special Autonomy Funds amounting to of 2% and after 15 years to 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 1% of the national DAU plafond, are regarded as income of the Government of Aceh, and their utilization is regulated by provincial Government of Aceh, and their utilization is regulated by provincial Qanun (Qanun (§ § 183).183).


On the other hand, there are stipulations that indicate On the other hand, there are stipulations that indicate that both the Province that both the Province andand Kabupaten/Kota have special Kabupaten/Kota have special authorities: authorities: – According to According to §§ 7,1 “The governments 7,1 “The governments (pemerintahan)(pemerintahan) of of Aceh Aceh

and Kabupaten/Kotaand Kabupaten/Kota have the authority to regulate and have the authority to regulate and implement government functions in all public sectors, except for implement government functions in all public sectors, except for those that belong to the authority of the central government…those that belong to the authority of the central government…(the six exclusive ones)”, and(the six exclusive ones)”, and

– According to paragraph 12 “The governments According to paragraph 12 “The governments (pemerintahan)(pemerintahan) of of Aceh and Kabupaten/KotaAceh and Kabupaten/Kota implement government functions that implement government functions that belong to their authority except for those which belong to the belong to their authority except for those which belong to the authority of the central government as stipulated in authority of the central government as stipulated in § 7,2.”and§ 7,2.”and

– ““The implementation of government functions (as stipulated The implementation of government functions (as stipulated above) is regulated and executed by the above) is regulated and executed by the Government of Aceh Government of Aceh and Kabupaten/Kota governmentsand Kabupaten/Kota governments on their own”. on their own”.


Other stipulations that support the perception that both Other stipulations that support the perception that both levels of government have been given the same decree levels of government have been given the same decree of autonomy:of autonomy:– The definition of Kabuapten/Kota in the “Ketentuan Umum” is the The definition of Kabuapten/Kota in the “Ketentuan Umum” is the

same as in Law 32/2004 and therefore indicates that they have same as in Law 32/2004 and therefore indicates that they have the the same status as other Kabupaten/Kotasame status as other Kabupaten/Kota, not being , not being hierarchically under the province as autonomous regionhierarchically under the province as autonomous region

– Throughout the whole LOGA, responsibilities in various sectors Throughout the whole LOGA, responsibilities in various sectors are are equally given to the province and Kabupaten/Kotaequally given to the province and Kabupaten/Kota

– Obligatory functions (urusan wajib) are assigned to Obligatory functions (urusan wajib) are assigned to both the both the province and Kabupaten/Kotaprovince and Kabupaten/Kota by the LOGA ( by the LOGA (§§ 16 and 17) §§ 16 and 17) in in the same way as it is regulated in Law32/2004 for all other the same way as it is regulated in Law32/2004 for all other regions in Indonesia.regions in Indonesia.

Distribution of Government Distribution of Government Functions (1/3)Functions (1/3)

The distribution of functions between the central The distribution of functions between the central government and the province of Aceh as well as government and the province of Aceh as well as the districts in Aceh seems not be clearly the districts in Aceh seems not be clearly regulated:regulated:

The stipulations of § 7,1 on the central government’s The stipulations of § 7,1 on the central government’s “functions of national character” in conjunction with the “functions of national character” in conjunction with the relevant elucidations are so general that they require a more relevant elucidations are so general that they require a more detailed elaboration/clarification on those functions.detailed elaboration/clarification on those functions.§ 270 determines that these functions will be regulated by § 270 determines that these functions will be regulated by laws and regulations. While it is not clear whether this means laws and regulations. While it is not clear whether this means that existing laws and regulations will be followed or whether that existing laws and regulations will be followed or whether specific regulations (like a Government Regulation) will have specific regulations (like a Government Regulation) will have to be issued, the latter will most likely apply because this is to be issued, the latter will most likely apply because this is usually the case if the term “dengan” (by) is used.usually the case if the term “dengan” (by) is used.

Distribution of Government Functions Distribution of Government Functions (2/3)(2/3)

Other regulations of the LOGA underline the lack Other regulations of the LOGA underline the lack of clarity regarding the distribution of functions:of clarity regarding the distribution of functions:

The stipulations of § 11,1 in conjunction with the relevant The stipulations of § 11,1 in conjunction with the relevant elucidations suggest that the central government has broad elucidations suggest that the central government has broad authorities in setting norms, standards and procedures for authorities in setting norms, standards and procedures for the implementation of governance in Aceh. It would have the implementation of governance in Aceh. It would have been desirable to stipulate how or where these authorities been desirable to stipulate how or where these authorities are being regulated or which national regulations will be are being regulated or which national regulations will be followed, however there are no such specific stipulations.followed, however there are no such specific stipulations.

§ 270 determines that the implementation of the LOGA as § 270 determines that the implementation of the LOGA as far as it concerns central government authorities will be far as it concerns central government authorities will be regulated by laws and regulations. Again, it is not clear regulated by laws and regulations. Again, it is not clear whether this means that existing laws and regulations will whether this means that existing laws and regulations will be followed or whether specific regulations will have to be be followed or whether specific regulations will have to be issued.issued.

Distribution of Government Distribution of Government Functions (3/3)Functions (3/3)

Under the given circumstances, the most Under the given circumstances, the most plausible assumption is that plausible assumption is that

a new Government Regulation will be issued to regulate the a new Government Regulation will be issued to regulate the central government’s functions of national character, and thatcentral government’s functions of national character, and thatthe distribution of functions between the provincial the distribution of functions between the provincial government and the Kabupaten/Kota governments will have government and the Kabupaten/Kota governments will have to follow the to follow the Government Regulation on the “Distribution of Government Regulation on the “Distribution of Government Functions between the Central Government, the Government Functions between the Central Government, the Provinces and the Kabupaten/Kota”Provinces and the Kabupaten/Kota” ( (which is an which is an implementing regulation to Law 32/2004 and is presently implementing regulation to Law 32/2004 and is presently under preparation), as long as the LOGA does not provide under preparation), as long as the LOGA does not provide for a different assignment of functions.for a different assignment of functions.

This procedure could possibly raise questions This procedure could possibly raise questions regarding the special authorities of Aceh again.regarding the special authorities of Aceh again.

Obligatory Functions and Obligatory Functions and Minimum Service Standards Minimum Service Standards

The LOGA,The LOGA,– like Law 32/2004, lists a set of (so called) obligatory functions for like Law 32/2004, lists a set of (so called) obligatory functions for

the Province in the Province in § 16,§ 16, and a nearly identical set of obligatory and a nearly identical set of obligatory functions for Kabupaten/Kota in functions for Kabupaten/Kota in § 17§ 17, while adding some special , while adding some special obligatory functions for both levels related to the “specialty of obligatory functions for both levels related to the “specialty of Aceh” (developed from Law 44/1999)Aceh” (developed from Law 44/1999)

– like Law 32/2004, states that Minimum Service Standards like Law 32/2004, states that Minimum Service Standards related to obligatory functions will be set by the central related to obligatory functions will be set by the central governmentgovernment

– like Law 32/2004, elaborates on (so called) voluntary functionslike Law 32/2004, elaborates on (so called) voluntary functions– states that the implementation of the above mentioned functions states that the implementation of the above mentioned functions

will be further regulated by provincial Qanun for the provincial will be further regulated by provincial Qanun for the provincial level and by Kabupaten/Kota Qanun for the district level based level and by Kabupaten/Kota Qanun for the district level based on on (dengan berpedoman)(dengan berpedoman) laws and regulationslaws and regulations

The most plausible assumption is that provincial and The most plausible assumption is that provincial and Kabupaten/Kota Qanun will have to follow the aforementioned GR Kabupaten/Kota Qanun will have to follow the aforementioned GR on the distribution of functions between levels of government.on the distribution of functions between levels of government.

Local Political Parties (1/2)Local Political Parties (1/2)

Can be formed by at least 50 Indonesian citizens who Can be formed by at least 50 Indonesian citizens who are at least 21 years of age and are permanent residents are at least 21 years of age and are permanent residents of Aceh, with of Aceh, with paying attentionpaying attention to to (memperhatikan) (memperhatikan) a a representation of at least 30% of women.representation of at least 30% of women.The leadership of the party has to be formed with The leadership of the party has to be formed with paying paying attentionattention to a representation of at least 30% women. to a representation of at least 30% women.To be registered as legal entities, the party has to have To be registered as legal entities, the party has to have chapters in at least 50% of all Kabupaten/Kota and in chapters in at least 50% of all Kabupaten/Kota and in 25% of the Kecamatan in every of the respective 25% of the Kecamatan in every of the respective Kabupaten/KotaKabupaten/KotaCitizens of Indonesia who are permanent residents of Citizens of Indonesia who are permanent residents of Aceh and at least 17 years of age can become members Aceh and at least 17 years of age can become members of local political partiesof local political partiesMembers of local political parties can at the same time Members of local political parties can at the same time be members of national political parties be members of national political parties

Local Political Parties (2/2)Local Political Parties (2/2)

To participate in elections to provincial (DPRA) and Kabupaten/Kota To participate in elections to provincial (DPRA) and Kabupaten/Kota (DPRK) parliaments, the local political parties must have a party (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 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 the Kecamatan in each of these Kabupaten/Kota, and have at least 1/1000 of the inhabitants as members of a party chapter1/1000 of the inhabitants as members of a party chapterIn order to participate in the following elections, they have to gain at 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, least 5% of the seats in the DPRA or 5% of the seats in the DPRK, distributed over at least 50% of the Kabupaten/Kotadistributed over at least 50% of the Kabupaten/KotaThey can nominate pairs of candidates for the positions of They can nominate pairs of candidates for the positions of Governor/Bupati/Walikota if they have gained at least 15% 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 theseats in the DPRA or 15% or at least 15% of the votes in the DPRA elections in the respective regionDPRA elections in the respective regionThey can form coalitions or merge with other local political parties or They can form coalitions or merge with other local political parties or national partiesnational partiesLocal political parties to be further regulated in a Government Local political parties to be further regulated in a Government Regulation at the latest until February 2007.Regulation at the latest until February 2007.

Implementation of Syari’at Islam Implementation of Syari’at Islam (1/2)(1/2)

§ 125 of the LOGA:§ 125 of the LOGA:““Syari’at Islam as implemented in Aceh covers “aqidah, Syari’at Islam as implemented in Aceh covers “aqidah, syar’iyah and akhlak” (belief, Islamic law and moral)”syar’iyah and akhlak” (belief, Islamic law and moral)”

““Syari’at Islam comprises religious service, Islamic family Syari’at Islam comprises religious service, Islamic family law, Islamic civil law, Islamic criminal law, Islamic judiciary, law, Islamic civil law, Islamic criminal law, Islamic judiciary, education, Islamic religious proselytizing, as well as education, Islamic religious proselytizing, as well as disseminating and defending Islamic teaching.”disseminating and defending Islamic teaching.”

Further stipulations regarding the implementation of syari’at Further stipulations regarding the implementation of syari’at Islam will be regulated by provincial Qanun.”Islam will be regulated by provincial Qanun.”

§ 126 of the LOGA:§ 126 of the LOGA: ““Every follower of the islamic religion in Aceh is is obliged to Every follower of the islamic religion in Aceh is is obliged to adhere to syari’at Islam”adhere to syari’at Islam”

““Any person who resides in or visits Aceh Any person who resides in or visits Aceh must honormust honor (menghormati) (menghormati) the implementation of Islamic Syari’at.the implementation of Islamic Syari’at.””

Implementation of Syari’at Islam Implementation of Syari’at Islam (2/2)(2/2)

§ 127 of the LOGA:§ 127 of the LOGA:The Government of Aceh and the Kabupaten/Kota The Government of Aceh and the Kabupaten/Kota governments are responsible for the implementation of governments are responsible for the implementation of Syari’at Islam.Syari’at Islam.The Government of Aceh and the Kabupaten/Kota The Government of Aceh and the Kabupaten/Kota governments guarantee the governments guarantee the freedom of religionfreedom of religion, foster , foster religious harmonyreligious harmony, honor the values adhered to by the , honor the values adhered to by the religious community and religious community and protect all religious communitiesprotect all religious communities in in worshipping according to the religion they adhere to. worshipping according to the religion they adhere to. The construction of places of worship in Aceh must get the The construction of places of worship in Aceh must get the permission of the Government of Aceh or Kabupaten/Kota permission of the Government of Aceh or Kabupaten/Kota governments. governments. Further stipulations regarding licensing of places of worship Further stipulations regarding licensing of places of worship are regulated by Qanun, are regulated by Qanun, paying attention topaying attention to laws and laws and regulations.regulations.

The Mahkamah Syar’iyah (1/3)The Mahkamah Syar’iyah (1/3)

§ 128 of the LOGA:§ 128 of the LOGA:Syari’at Islam jurisdiction in Aceh is Syari’at Islam jurisdiction in Aceh is part of the part of the national justice system in the field of religious national justice system in the field of religious justicejustice, which is exercised by the Mahkamah , which is exercised by the Mahkamah Syar’iyah (MS) which is completely independent.Syar’iyah (MS) which is completely independent.The MS is the court of justice for all The MS is the court of justice for all followers of followers of IslamIslam who who areare in Aceh. in Aceh.The MS has the authority to investigate, pass The MS has the authority to investigate, pass judgment on, decide on and resolve cases that judgment on, decide on and resolve cases that cover the fields of cover the fields of family law, civil law and criminal family law, civil law and criminal lawlaw based on the syari’at Islam. based on the syari’at Islam.Further details regarding the three fields of law are Further details regarding the three fields of law are regulated in a regulated in a provincial Qanunprovincial Qanun..


§ 129 of the LOGA:§ 129 of the LOGA:In case criminal offences are being committed by In case criminal offences are being committed by two or more people together, among whom there two or more people together, among whom there are non-muslims, a perpetrator who is not a are non-muslims, a perpetrator who is not a follower of Islam can chose and subjugate himself follower of Islam can chose and subjugate himself voluntarily to the (islamic) criminal law (jinayah).voluntarily to the (islamic) criminal law (jinayah).Every person who is not a follower of Islam who Every person who is not a follower of Islam who commits a crime which is not regulated in the commits a crime which is not regulated in the general criminal law general criminal law (Kitab Undang-undang Hukum (Kitab Undang-undang Hukum Pidana - KUHP) Pidana - KUHP) or criminal regulations outside the or criminal regulations outside the KUHP will be subject to the islamic criminal law KUHP will be subject to the islamic criminal law (jinayah)(jinayah)Inhabitants of Aceh who commit crimes outside Inhabitants of Aceh who commit crimes outside Aceh will be subject to the KUHP. Aceh will be subject to the KUHP.


§ 132 of the LOGA§ 132 of the LOGACourt procedures of the MS are regulated by provincial Court procedures of the MS are regulated by provincial Qanun.Qanun.

§ 133 and 134 of the LOGA§ 133 and 134 of the LOGAInvestigations into violations of the syari’at Islam as far as Investigations into violations of the syari’at Islam as far as they concern criminal acts are undertaken by the National they concern criminal acts are undertaken by the National Police and Civil Investigators , whose recruitment, education, Police and Civil Investigators , whose recruitment, education, training and guidance is facilitated by the National Police training and guidance is facilitated by the National Police according to laws and regulations.according to laws and regulations.

§ 135 of the LOGA§ 135 of the LOGAJudges of the MS are appointed by the President upon Judges of the MS are appointed by the President upon proposal by the Chairman of the Supreme Courtproposal by the Chairman of the Supreme CourtThe Chairman and the vice-chairman of the provincial MS The Chairman and the vice-chairman of the provincial MS are appointed by the Chairman of the Supreme Court, and are appointed by the Chairman of the Supreme Court, and the chairmen of the Kabupaten/Kota MS are appointed by the chairmen of the Kabupaten/Kota MS are appointed by the Chairman of the Supreme Court upon proposal by the the Chairman of the Supreme Court upon proposal by the Chairman of the provincial MS.Chairman of the provincial MS.

The Ulama Deliberation Counsil The Ulama Deliberation Counsil

The LOGA (The LOGA (§ 138) § 138) states among others:states among others:““An Ulama Deliberation Counsil (Majelis Permusyawaratan Ulama = An Ulama Deliberation Counsil (Majelis Permusyawaratan Ulama = MPU) is established in Aceh and in the Kabupaten/Kota whose MPU) is established in Aceh and in the Kabupaten/Kota whose members consists of islamic religious leaders (ulama) and muslim members consists of islamic religious leaders (ulama) and muslim intellectuals who understand the Islamic religious science, paying intellectuals who understand the Islamic religious science, paying attention to the representation of women.”attention to the representation of women.”““MPU is independent and its leadership is elected through MPU is independent and its leadership is elected through deliberations of the Ulama”deliberations of the Ulama”““MPU is MPU is positioned as partnerpositioned as partner of the Government of Aceh, the of the Government of Aceh, the Kabupaten/Kota governments, DPRA and DPRK.Kabupaten/Kota governments, DPRA and DPRK.

The LOGA (The LOGA (§ 139) states among others:§ 139) states among others:““The MPU has the function of issuing The MPU has the function of issuing fatwa fatwa that may be considered that may be considered in regional policies in the fields of governance, development, in regional policies in the fields of governance, development, fostering communities and economy”fostering communities and economy”

The LOGA (The LOGA (§ 140) states among others§ 140) states among others… … that the MPU can issue fatwa that the MPU can issue fatwa upon and without request on problems upon and without request on problems in above mentioned fields, and provides guidance over differences in above mentioned fields, and provides guidance over differences in opinion in the community regarding religious matters. in opinion in the community regarding religious matters.

EconomyEconomy

In dealing with economic issues, the LOGAIn dealing with economic issues, the LOGA– emphasizes the aspects of sustainability, emphasizes the aspects of sustainability,

environmental protection, the welfare and the environmental protection, the welfare and the rights of the people of Aceh, particularly their rights of the people of Aceh, particularly their right to participate in planning and right to participate in planning and development, the rights and the role of civil development, the rights and the role of civil society organizations, the rights of workerssociety organizations, the rights of workers

– does not effectively expand the authority of does not effectively expand the authority of Aceh beyond the authority given to other Aceh beyond the authority given to other regions under the national decentralization regions under the national decentralization policy (exception: joint management of oil and policy (exception: joint management of oil and gas resources). gas resources).

Education Education According to According to § 215,1§ 215,1

Education in Aceh is an Education in Aceh is an integral part of the national education integral part of the national education systemsystem, which is adjusted to the characteristics, potentials and , which is adjusted to the characteristics, potentials and needs of the local community; andneeds of the local community; and

According to According to § 216§ 216 Every inhabitant of Aceh has the Every inhabitant of Aceh has the right to quality and Islamic right to quality and Islamic educationeducation, in line with the developments of science and technology;, in line with the developments of science and technology;Education is following the principles of democracy and justice, Education is following the principles of democracy and justice, holding in high esteem human rights, Islamic values, culture and the holding in high esteem human rights, Islamic values, culture and the plurality of the nation.plurality of the nation.

According to According to § 217,1§ 217,1Inhabitants between 7 and 15 years of age have to follow Inhabitants between 7 and 15 years of age have to follow compulsory basic education free of costcompulsory basic education free of cost

According to According to § 218,1§ 218,1The Government of Aceh and Kabupaten/Kota governments set the The Government of Aceh and Kabupaten/Kota governments set the policies for formal education, religious education and other non-policies for formal education, religious education and other non-forma education by setting the core curricula and quality standards forma education by setting the core curricula and quality standards for all kinds and levels of education for all kinds and levels of education according to laws and according to laws and regulationsregulations. .

HealthHealthAccording to According to § 224§ 224

Every inhabitant of Aceh has the same right in receiving health care Every inhabitant of Aceh has the same right in receiving health care services in order to achieve an optimal degree of health;services in order to achieve an optimal degree of health;Every inhabitant of Aceh is obliged to join in maintaining and Every inhabitant of Aceh is obliged to join in maintaining and improving the degree of individual, family and environmental health;improving the degree of individual, family and environmental health;Improving the degree of health has at least to follow Improving the degree of health has at least to follow minimum minimum service standardsservice standardsFurther stipulations regarding efforts in the field of health will be Further stipulations regarding efforts in the field of health will be regulated in provincial and Kabupaten/Kota Qanuns regulated in provincial and Kabupaten/Kota Qanuns

Problem: According to Law 32/2004 and GR 65/2005 on Problem: According to Law 32/2004 and GR 65/2005 on Minimum Service Standards (SPM), these standards are Minimum Service Standards (SPM), these standards are to be set by the respective central government to be set by the respective central government departments and are to be followed by the regions, with departments and are to be followed by the regions, with no exception made for Aceh. The regulations in no exception made for Aceh. The regulations in § 224, 3 § 224, 3 and 5and 5 are therefore in contradiction to existing laws and are therefore in contradiction to existing laws and regulations and will create uncertainty in implementation.regulations and will create uncertainty in implementation.

Regional FinanceRegional Finance

In determining the revenues of the In determining the revenues of the province and Kabupaten/Kota, the draft province and Kabupaten/Kota, the draft LOGA follows largely the stipulations of LOGA follows largely the stipulations of Law 33/2004 with the main exceptions Law 33/2004 with the main exceptions regarding regarding – special revenue sharing arrangementsspecial revenue sharing arrangements for oil for oil

and gas as mentioned before, and gas as mentioned before, – additional fundsadditional funds (dana tambahan) amounting (dana tambahan) amounting

to 2% of the national DAU plafond for the to 2% of the national DAU plafond for the duration of 15 years and 1% for the following duration of 15 years and 1% for the following 5 years.5 years.

Community Development FundsCommunity Development Funds

Every mining enterprise in Aceh has to provide Every mining enterprise in Aceh has to provide Community development funds Community development funds ((§ 159)§ 159), ,

the amount of which is to be fixed in agreement between the the amount of which is to be fixed in agreement between the Government of Aceh, district governments and the respective Government of Aceh, district governments and the respective enterprise, amounting to at least 1% of the annual value of enterprise, amounting to at least 1% of the annual value of production;production;

Plans for the utilization of the funds are jointly (?) prepared, Plans for the utilization of the funds are jointly (?) prepared, considering the needs of the communities in the vicinity of considering the needs of the communities in the vicinity of the mining operations and communities in other places (?), the mining operations and communities in other places (?), have to involve the respective mining enterprise, and are have to involve the respective mining enterprise, and are regulated in a provincial Qanun; regulated in a provincial Qanun;

The funds for the community development programs are to The funds for the community development programs are to be managed by the respective mining enterprise itself. be managed by the respective mining enterprise itself.

Other ArrangementsOther Arrangements

Arrangements regardingArrangements regarding– Provincial and Kabupaten/Kota ParliamentsProvincial and Kabupaten/Kota Parliaments– The structure and apparatus of provincial and The structure and apparatus of provincial and

Kabupaten/Kota governmentsKabupaten/Kota governments– The responsibilities of Governor/Bupati/WalikotaThe responsibilities of Governor/Bupati/Walikota– The Election of the Governor/Bupati/Walikota, andThe Election of the Governor/Bupati/Walikota, and– The civil service of Provinces/Kabuapten/KotaThe civil service of Provinces/Kabuapten/Kota

follow with very few exceptions literally the follow with very few exceptions literally the arrangements of Law 32/2004 arrangements of Law 32/2004

The Follow-up RegulationsThe Follow-up Regulations

The implementation of the LOGA needs (depending on the The implementation of the LOGA needs (depending on the interpretation of some stipulations that are not sufficiently clear)interpretation of some stipulations that are not sufficiently clear)– At least 4 Government Regulations (Peraturan Pemerintah) on:At least 4 Government Regulations (Peraturan Pemerintah) on:

Local Poitical Parties (§ 95), at the latest by February 2007Local Poitical Parties (§ 95), at the latest by February 2007Management of Oil and Gas resources (§ 160 article 5)Management of Oil and Gas resources (§ 160 article 5)The name of Aceh as a province and the titles of office holders The name of Aceh as a province and the titles of office holders (§ 251,3; based on proposal from DPRA after elections in 2009)(§ 251,3; based on proposal from DPRA after elections in 2009)Central government authorities of national character (§ 270,1) Central government authorities of national character (§ 270,1)

– 3 Presidential Regulations (Perpres) on3 Presidential Regulations (Perpres) onProcess of consultation with DPRA on planned international Process of consultation with DPRA on planned international agreements by the central government, and with the Governor agreements by the central government, and with the Governor on administrative decisions of the central government (§ 8,4)on administrative decisions of the central government (§ 8,4)Cooperation of Aceh with foreign institutions and participation in Cooperation of Aceh with foreign institutions and participation in events abroad (§ 9,4)events abroad (§ 9,4)Transfer of offices of the National Land Agency (BPN) at Transfer of offices of the National Land Agency (BPN) at province and district levels to local governments; at the latest at province and district levels to local governments; at the latest at the beginning of FY 2008 (§ 253,2)the beginning of FY 2008 (§ 253,2)

– At least 58 Provincial Qanun and 35 Kabupaten/Kota Qanun.At least 58 Provincial Qanun and 35 Kabupaten/Kota Qanun.

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

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