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

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.