Law on the Governing of Aceh a brief Review and Assessment Bernhard May

§ 125 of the LOGA:

• “Syari’at Islam as implemented in Aceh covers “aqidah, syar’iyah and akhlak” (belief, Islamic law and moral)”
• “Syari’at Islam comprises religious service, Islamic family law, Islamic civil law, Islamic criminal law, Islamic judiciary, education, Islamic religious proselytizing, as well as disseminating and defending Islamic teaching.”
• Further stipulations regarding the implementation of syari’at Islam will be regulated by provincial Qanun.”

§ 126 of the LOGA:

• “Every follower of the islamic religion in Aceh is is obliged to adhere to syari’at Islam”
• “Any person who resides in or visits Aceh must honor (menghormati) the implementation of Islamic Syari’at.”

Implementation of Syari’at Islam (2/2)

• § 127 of the LOGA:

• The Government of Aceh and the Kabupaten/Kota governments are responsible for the implementation of Syari’at Islam.
• The Government of Aceh and the Kabupaten/Kota governments guarantee the freedom of religion, foster religious harmony, honor the values adhered to by the religious community and protect all religious communities in worshipping according to the religion they adhere to.
• The construction of places of worship in Aceh must get the permission of the Government of Aceh or Kabupaten/Kota governments.
• Further stipulations regarding licensing of places of worship are regulated by Qanun, paying attention to laws and regulations.

The Mahkamah Syar’iyah (1/3)

• § 128 of the LOGA:

• Syari’at Islam jurisdiction in Aceh is part of the national justice system in the field of religious justice, which is exercised by the Mahkamah Syar’iyah (MS) which is completely independent.
• The MS is the court of justice for all followers of Islam who are in Aceh.
• The MS has the authority to investigate, pass judgment on, decide on and resolve cases that cover the fields of family law, civil law and criminal law based on the syari’at Islam.
• Further details regarding the three fields of law are regulated in a provincial Qanun.

The Mahkamah Syar’iyah (2/3)

• § 129 of the LOGA:

• In case criminal offences are being committed by two or more people together, among whom there are non-muslims, a perpetrator who is not a follower of Islam can chose and subjugate himself voluntarily to the (islamic) criminal law (jinayah).
• Every person who is not a follower of Islam who commits a crime which is not regulated in the general criminal law (Kitab Undang-undang Hukum Pidana - KUHP) or criminal regulations outside the KUHP will be subject to the islamic criminal law (jinayah)
• Inhabitants of Aceh who commit crimes outside Aceh will be subject to the KUHP.

The Mahkamah Syar’iyah (3/3)

• § 132 of the LOGA

• Court procedures of the MS are regulated by provincial Qanun.

• § 133 and 134 of the LOGA

• Investigations into violations of the syari’at Islam as far as they concern criminal acts are undertaken by the National Police and Civil Investigators , whose recruitment, education, training and guidance is facilitated by the National Police according to laws and regulations.

• § 135 of the LOGA

• Judges of the MS are appointed by the President upon proposal by the Chairman of the Supreme Court
• The Chairman and the vice-chairman of the provincial MS are appointed by the Chairman of the Supreme Court, and the chairmen of the Kabupaten/Kota MS are appointed by the Chairman of the Supreme Court upon proposal by the Chairman of the provincial MS.

The Ulama Deliberation Counsil

• The LOGA (§ 138) states among others:

• “An Ulama Deliberation Counsil (Majelis Permusyawaratan Ulama = MPU) is established in Aceh and in the Kabupaten/Kota whose members consists of islamic religious leaders (ulama) and muslim intellectuals who understand the Islamic religious science, paying attention to the representation of women.”
• “MPU is independent and its leadership is elected through deliberations of the Ulama”
• “MPU is positioned as partner of the Government of Aceh, the Kabupaten/Kota governments, DPRA and DPRK.

• The LOGA (§ 139) states among others:

• “The MPU has the function of issuing fatwa that may be considered in regional policies in the fields of governance, development, fostering communities and economy”

• The LOGA (§ 140) states among others

• … that the MPU can issue fatwa upon and without request on problems in above mentioned fields, and provides guidance over differences in opinion in the community regarding religious matters.

Economy

• In dealing with economic issues, the LOGA

• emphasizes the aspects of sustainability, environmental protection, the welfare and the rights of the people of Aceh, particularly their right to participate in planning and development, the rights and the role of civil society organizations, the rights of workers
• does not effectively expand the authority of Aceh beyond the authority given to other regions under the national decentralization policy (exception: joint management of oil and gas resources).

Education

• According to § 215,1

• Education in Aceh is an integral part of the national education system, which is adjusted to the characteristics, potentials and needs of the local community; and

• According to § 216

• Every inhabitant of Aceh has the right to quality and Islamic education, in line with the developments of science and technology;
• Education is following the principles of democracy and justice, holding in high esteem human rights, Islamic values, culture and the plurality of the nation.

• According to § 217,1

• Inhabitants between 7 and 15 years of age have to follow compulsory basic education free of cost

• According to § 218,1

• The Government of Aceh and Kabupaten/Kota governments set the policies for formal education, religious education and other non-forma education by setting the core curricula and quality standards for all kinds and levels of education according to laws and regulations.

Health

• According to § 224

• Every inhabitant of Aceh has the same right in receiving health care services in order to achieve an optimal degree of health;
• Every inhabitant of Aceh is obliged to join in maintaining and improving the degree of individual, family and environmental health;
• Improving the degree of health has at least to follow minimum service standards
• Further stipulations regarding efforts in the field of health will be regulated in provincial and Kabupaten/Kota Qanuns

• Problem: According to Law 32/2004 and GR 65/2005 on Minimum Service Standards (SPM), these standards are to be set by the respective central government departments and are to be followed by the regions, with no exception made for Aceh. The regulations in § 224, 3 and 5 are therefore in contradiction to existing laws and regulations and will create uncertainty in implementation.

Regional Finance

• In determining the revenues of the province and Kabupaten/Kota, the draft LOGA follows largely the stipulations of Law 33/2004 with the main exceptions regarding

• special revenue sharing arrangements for oil and gas as mentioned before,
• additional funds (dana tambahan) amounting to 2% of the national DAU plafond for the duration of 15 years and 1% for the following 5 years.

Community Development Funds

• Every mining enterprise in Aceh has to provide Community development funds (§ 159),

• the amount of which is to be fixed in agreement between the Government of Aceh, district governments and the respective enterprise, amounting to at least 1% of the annual value of production;
• Plans for the utilization of the funds are jointly (?) prepared, considering the needs of the communities in the vicinity of the mining operations and communities in other places (?), have to involve the respective mining enterprise, and are regulated in a provincial Qanun;
• The funds for the community development programs are to be managed by the respective mining enterprise itself.

Other Arrangements

• Arrangements regarding

• Provincial and Kabupaten/Kota Parliaments
• The structure and apparatus of provincial and Kabupaten/Kota governments
• The responsibilities of Governor/Bupati/Walikota
• The Election of the Governor/Bupati/Walikota, and
• The civil service of Provinces/Kabuapten/Kota
• follow with very few exceptions literally the arrangements of Law 32/2004

The Follow-up Regulations

• The implementation of the LOGA needs (depending on the interpretation of some stipulations that are not sufficiently clear)

• At least 4 Government Regulations (Peraturan Pemerintah) on:
• Local Poitical Parties (§ 95), at the latest by February 2007
• Management of Oil and Gas resources (§ 160 article 5)
• The name of Aceh as a province and the titles of office holders (§ 251,3; based on proposal from DPRA after elections in 2009)
• Central government authorities of national character (§ 270,1)
• 3 Presidential Regulations (Perpres) on
• Process of consultation with DPRA on planned international agreements by the central government, and with the Governor on administrative decisions of the central government (§ 8,4)
• Cooperation of Aceh with foreign institutions and participation in events abroad (§ 9,4)
• Transfer of offices of the National Land Agency (BPN) at province and district levels to local governments; at the latest at the beginning of FY 2008 (§ 253,2)
• At least 58 Provincial Qanun and 35 Kabupaten/Kota Qanun.

• THANK YOU FOR YOUR PATIENCE