Aceh's peace agreement stronger than RI law
Aceh's peace agreement stronger than RI law
Afridal Darmi, Head, Banda Aceh Legal Aid Institute (LBH Banda Aceh),
Banda Aceh
Police have arrested Muhammad Nazar and are now hunting down
Kautsar. They have accused Nazar, chairman of the Aceh Referendum
Information Center (SIRA) and Kautsar, a former chairman of the
Acehnese Democratic Resistance Front (FPDRA) of spreading
sedition against the government. Both have allegedly violated the
articles in the criminal code known as Haatzaai Artikelen
(articles on sedition).
Police measures have been lambasted as a violation of the
Cessation of Hostilities Agreement (CoHA) signed by the
government and the Free Aceh Movement (GAM) last Dec. 9.
Indonesian authorities have said the national law prevails in
Indonesian territory and therefore the government can force
compliance to this law even if this contradicts the CoHA.
In the case of a conflict between Indonesia's positive law and
the stipulations in CoHA, which one prevails? Article 2(f) of
CoHA stipulates that both parties pledge to allow civilian
members to enjoy freedom of expression without hampering their
rights of democracy. Indonesia has a law that limits the freedom
of expression and entitles law enforcers to arrest and detain
those violating this law.
The legal doctrine Pacta Sunt Servanda means a treaty which is
legally drawn up shall be binding as a law to the signatories.
Article 26 of the 1969 Vienna Convention on Law Making Treaties
says, "every treaty that is made shall be binding to the parties
and shall have to be implemented by both parties with a good
intention."
This stipulation implies: (1) that this treaty must be
complied with so that sanctions must be imposed on those
violating it; (2) this treaty must be made in good intention; and
(3) this treaty cannot be unilaterally abrogated. A treaty is
made on the basis of the wishes of the two parties, thus its
abrogation or cessation must also be based on the wishes of both
parties.
The above legal doctrine demands that the treaty fulfills the
following: (1) That there is an agreement between the parties;
(2) the parties making the pledge shall be those authorized to do
so; (3) the object of the treaty must be clear; and (4) this
treaty must be made on something that the law allows to be made
an object of a treaty. The treaty must not involve coercion,
errors or fraud.
These main arguments can be found in Book III of Indonesia's
civil code. These stipulations are universally applicable; they
have adopted the universal stipulations on Pacta Sunt Servanda
and the conditions that a treaty has to fulfill to be considered
legitimate.
Therefore, CoHA applies with the same force as a law to the
signatories, who must abide by it although the national laws and
regulations stipulate otherwise. Consideration of a treaty being
a law brings about a legal relationship, not just a moral one.
There is doubt that Indonesia has the right to make a treaty
with any parties it so desires. What about GAM?
Prior to negotiations, the political status of GAM's
sovereignty was at the level of an international legal subject,
as GAM had acquired the status of insurgency. To get to this
status level, this group must meet the following conditions: (1)
it must be organized; (2) it must have a counter government
structure; (3) it must aspire to liberate a territory and (4) it
must have its claim on a certain territory.
To obtain this status GAM must prove its effective control of
the territory that it claims to liberate. So far GAM is largely
in control only over the hinterland as well as a number of sub-
districts in the eastern and western coastal areas.
The initiative of the previous administration of president
Abdurrahman Wahid (Gus Dur) confirmed this insurgency status. Gus
Dur's administration invited GAM to the negotiating table in the
Joint Understanding on Humanitarian Pause in June 2001. This
understanding made the status of GAM move to that of a party with
equal footing to the government before international law.
Nevertheless the legal force of CoHA vis-a-vis national law is
yet to be found. Another legal axiom says -- "specific
stipulations prevail over general ones" (lex specialis derogat
lege generalis).
In view of its nature, scope and the area it seeks to
regulate, CoHA, when positioned against various national
stipulations, is a specific stipulation on the management of
Aceh. Therefore, CoHA prevails over other stipulations.
If linked with freedom of expression, this axiom can be
interpreted as follows: "The stipulations in CoHA on the freedom
of expression has a stronger force than the national legal
stipulation hampering the freedom of expression."
CoHA is a treaty which applies as a law to the Republic and
GAM, both having legally signed it, and is a special regulation
with a stronger force than the general stipulations in the
legislation of the Republic and GAM.
Therefore, CoHA stipulations, particularly those on the
freedom of expression for civilian scoiety members, have a
stronger authority than those of the Haatzai Artikelen of the
civil code and the 1998 law on freedom of expression.
The two parties must strive earnestly and in good intention to
honor the freedom to air opinions, and then show their good
intention by releasing all detainees.
Given the lack of understanding of the above the CoHA must
still be more widely popularized among the community and those
spreading understanding about it must be parties which people
have strong confidence in. To prevent unilateral interpretation,
it is also important to have an authentic interpretation of this
treaty.
Finally, the success of saving the Acehnese by means of CoHA
depends on the patience of relevant parties in maintaining peace.
Both parties must be encouraged to remain committed to the treaty
and eliminate all potential dangers to its sustainability.
This article is based on a position paper written for the
Civil Coalition for Peace, set up to bolster efforts to settle
the Aceh conflict and provide alternative democratic channels
that honor human rights for the conflict settlement.