Aceh martial law authority not unaccountable

Luhut M.P. Pangaribuan, Lawyer, Jakarta

The martial law in the province of Aceh was issued in a decree signed by President Megawati Soekarnoputri. The decision was taken based on the reasoning that a comprehensive approach and dialog had failed to change the separatist intentions of the Free Aceh Movement (GAM) from unitary state of Indonesia (NKRI).

The government instead saw that the movement had spread, adding to the suffering of the people, thus prompting the government to decide to stop all this as soon as possible through "integrated" efforts.

The President now holds the highest authority of the military emergency structure, assisted by an executive body headed by Coordinating Minister for Political and Security Affairs (Gen.) Susilo Bambang Yudhoyono.

The above decision was taken based on the President's constitutional authority, which is further specified in Law No. 23/1959 on the state of emergency and Law No. 2/2002 on the National Police. These are the legal references by which to judge whether the authorities of the current military emergency in Aceh are acting in accordance with the law.

Because of its emergency feature, the martial law authority is very strong, but this does not mean it is unlimited or unaccountable. Article 12 of Law No. 23/1959 stipulates that each civil servant must provide all information needed by the authorities, unless reasons justify otherwise. So if a civil servant is still forced to provide the requested information even though he has raised his reasons for not doing so, the authority in charge could be held accountable.

It thus needs to be clarified whether the arrest of several officials in Aceh was related to their refusal to provide reasons for not releasing the requested information to authorities.

Paragraph 1 of Article 57 in Law No. 23 states that officials of the martial law structure who abuse their power can be sentenced to prison for a maximum of five years. Paragraph 2 says the first article does not apply if the said abuse is a crime regulated by another law, which entails a heavier punishment.

In the same law, Article 60 points out that those parties who feel disadvantaged by actions mentioned in the law, which are proved to have been taken without reason, are entitled to compensation. 23/1959. Paragraph 2, Article 34, states that the martial law authority has full or conditional power from the President to regulate those issues under national law, apart from those regulated under the law on state of emergency. Article 33 mentions a number of paragraphs that can be ignored by the authorities, meaning that the authorities must abide with all the other laws.

Authorities are entitled to arrest and detain people for 20 days at the most, but the arrest must be reported to the martial law authority within 12 days. Within 10 days, the detainee must be investigated, the result of which must be reported to the martial law authority. The investigation must result in a dossier (Article 32), and if in 20 days the investigation is not completed and if detention is still required, the said person can be detained up to 50 days by the central authority of martial law. All arrests and detentions must be made with warrants.

This process is not regulated in the 1959 law, so here the Criminal Code procedure applies. So if arrests and detentions is conducted beyond what is regulated in the 1959 law, the Article 1 of Chapter X in the Criminal Code applies, and the military authority can be brought to a civil court.