Revoking Aceh's state of emergency: Was it legal?

Imanuddin Razak, Jakarta

A few days after the deadly earthquake and the subsequent tsunami that devastated Aceh province, Vice President Jusuf Kalla issued a statement declaring the annulment of the state of emergency in the former province.

The statement, announced by the vice president, to a certain extent was a relief, at least for the Acehnese who have been trapped in the middle of a prolonged war between the separatist Free Aceh Movement (GAM) and government military. The ongoing power struggle seems to have been greatly affected by the powerful quake and deadly tidal waves, which had killed more than 104,000 people in Aceh and North Sumatra.

Kalla's statement was also a positive sign of the government's intention to prioritize the relief and rehabilitation programs for Aceh in its short-term agenda.

Nevertheless, the vice president's announcement was controversial in terms of the existing protocol and constitutional mechanisms in the country for changing such a status.

It could become a point of contention because the statement was made by the vice president, not the president, as is stipulated in the Constitution. It is indeed guaranteed in the Constitution that the president has the right to declare war on another country or, in the case of a domestic war, declare martial law or a state of emergency (The two are essentially the same, except under martial law the head of the local administration is the military commander and in a state of emergency, the administration head is the local civilian politician, usually a governor).

In addition, it is the president that must revoke or change such a status.

The vice president can only act or make important state decisions on behalf of the president if the latter is unable to perform state duties.

Kalla's statement was also controversial as it was made without prior consultation with the House of Representatives as the presidential institution law stipulates.

From the reports we have received about the security condition in Aceh, it is likely too early to say that the state of emergency should be lifted from Aceh. Despite the now-devastated province's poor condition, there have been recent attacks by armed groups, but there has not been any solid evidence of who was responsible. The military blames GAM, and vice-versa.

Any immediate withdrawal of troops from the province will only create a power vacuum that will make it easier for GAM members to act. And potential attacks by GAM, therefore, will only justify the need to maintain the military troops' presence in the war- town province.

Military operation-wise, in such a normal or "non-emergency" situation, the security authority or the Indonesian Military (TNI) would need to obtain an official request from the local administration and/or the central government prior to getting involved in fighting such an armed group. And if the state of emergency is revoked, then the troops would need to secure Jakarta's permission to combat GAM. On the other hand, during a state of emergency, they can directly deal with GAM if the latter launches an attack.

Under then President Soeharto, Aceh was declared a military operation zone (DOM) following the heightened security disturbances in the province. The DOM was revoked in 1998, a few months after Soeharto stepped down.

However, an increase of armed conflicts in the province following a failed COHA agreement, led Jakarta to declare martial law in May 2003 to quell the GAM rebellion. That lasted one year, before the it was downgraded to a state of emergency on May 19, 2004. The emergency was extended on Nov. 19, 2004 for another six months after an evaluation by the central government.

Kalla's statement, if enacted, will force the TNI to withdraw all non-regular troops from the province and retain only those attached with the Iskandar Muda provincial military command.

Nobody can predict what may happen if the non-regular troops were to be withdrawn from the province. So, unless the government -- or Kalla himself -- can guarantee that there will be no attacks from GAM in the future, or that regular troops can handle GAM in the absence of supporting troops from other provinces, it may be a questionable decision.

The fact that there were more troops sent to Aceh to support the provincial military command in combating GAM with a ratio of an estimated five to one was controversial. There were some 40,000 troops deployed to the province, compared with GAM members who numbered just 8,000. But by the end of 2004, the TNI headquarters claimed that there were only 2,200 GAM members remaining.

But such an immediate decision to revoke the state of emergency, which would result in the withdrawal of the non- regular troops from the province is also controversial as the troops are still needed to combat GAM or other armed groups there. And most importantly, they are still needed to help with all the relief efforts.

It seems that such a hasty decision will only hamper attempts to restore the province to pre-tsunami conditions.

It is true that one day the state of emergency must be revoked in line with the improving security and post-tsunami social conditions. It must be a non-permanent policy of Jakarta, but such a decision should be made by the president upon the recommendation and approval by the House as stipulated in the Constitution.

The author is a staff writer for The Jakarta Post and can be reached at iman@thejakartapost.com.