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.