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Briefing 138 / Asia

Indonesia: Defying the State

Indonesian President Susilo Bambang Yudhoyono needs to act more firmly against institutions and officials that defy national court rulings or his inaction risks prolonging local conflicts.

I. Overview

Local institutions in Indonesia, empowered by decentralisation, are defying the country’s highest courts with impunity, undermining judicial authority and allowing local conflicts to fester. District councils, mayors and regional election commissions have learned that there is little cost to ignoring court rulings on electoral or religious disputes, pandering instead to local constituencies and pressure groups. Decisive leadership from the president could make a difference; instead, slow and ineffective responses from Jakarta brew more insubordination. If the regions become overconfident in their new powers and the central state continues to respond weakly, this lack of commitment to rule of law could encourage more conflict as the national political temperature rises ahead of the 2014 presidential election.

The problem of local officials defying the courts is a direct result of two steps taken by Indonesia in its post-1998 drive toward democratisation. One was its “big bang” decentralisation in 1999 that devolved political and fiscal power down to sub-provincial units: districts (kabupaten) and cities/municipalities (kota). The second was the introduction in 2005 of direct elections for local executives, including district heads (bupati) and mayors (walikota). Both were essential for the consolidation of Indonesian democracy, but the combination has made for a very powerful stratum of local authorities which feel neither beholden to the central government nor always compelled to comply with rulings from the nation’s top two courts.

The Supreme Court (Mahkamah Agung) is the court of final appeal for most civil and criminal cases; it also hears appeals on cases decided by the state administrative courts (Pengadilan Tata Usaha Negara), which rule on complaints against decisions taken by state officials or institutions. The Constitutional Court (Mahkamah Konstitusi) since 2008 has become the sole arbiter of election results that are disputed at the local level. The Supreme Court and the Constitutional Court are equals; decisions of both are final and binding. But a clear policy is missing on how those rulings should be enforced or an obvious penalty for failing to comply.

Three cases illustrate the point. In West Kotawaringin district, Central Kalimantan province, the Constitutional Court in July 2010 disqualified the winner of the district’s local election on vote-buying allegations and ruled that the defeated incumbent should get a second term. It may have been a questionable decision, but for the sake of reinforcing judicial authority, it should have been enforced. The local district council, however, saw the ruling as an intrusion by Jakarta in a local race and refused to accept it. More than two years later, the bupati who was awarded the victory by the court still cannot govern because of local resistance. In Bogor city and Bekasi district in West Java province, local officials have refused to allow the construction of churches despite court rulings that there were no grounds for sealing off the disputed building sites.

In all three cases, as tensions left unresolved by the rulings threatened to – and occasionally did – erupt into violence, the best the central government could do was to send an official to try and negotiate a compromise between contending parties and even then, Jakarta only reacted when the dispute made national headlines.

But if courts are to have any authority at all, the president, as chief executive, needs to do more than urge compromise. He has other tools at his disposal: issuing presidential decrees; withholding funds from local authorities; direct personal lobbying and making strategic use of the media. Allowing local officials to defy the courts is not just hurting the prospects of local conflict resolution. It sends the message that the power of the majority can take precedence over institutions of justice in a way that emboldens mobs, threatens minorities that feel they cannot depend on the state for protection, and ultimately undermines Indonesia’s democracy.

Jakarta/Brussels, 30 August 2012

Briefing 139 / Asia

Indonesia: Tensions Over Aceh’s Flag

A dispute over a flag in Aceh is testing the limits of autonomy, irritating Indonesia’s central government, heightening ethnic tensions, reviving a campaign for the division of the province and raising fears of violence as the 2014 national elections approach.
 

I. Overview

The decision of the Aceh provincial government to adopt the banner of the former rebel Free Aceh Movement (Gerakan Aceh Merdeka, GAM) as its official provincial flag is testing the limits of autonomy, irritating Jakarta, heightening ethnic and political tensions, reviving a campaign for the division of Aceh and raising fears of violence as a national election approaches in 2014.

On 25 March 2013, the provincial legislature adopted a regulation (qanun) making the GAM’s old banner the provincial flag. It was immediately signed by Governor Zaini Abdullah. The governor and deputy governor are members of Partai Aceh, the political party set up by former rebel leaders in 2008 that also controls the legislature.

The central government, seeing the flag as a separatist symbol and thus in violation of national law, immediately raised objections and asked for changes. Partai Aceh leaders, seeing the flag as a potent tool for mass mobilisation in 2014, have refused, arguing that it cannot be a separatist symbol if GAM explicitly recognised Indonesian sovereignty as part of the Helsinki peace agreement in 2005 that ended a nearly 30-year insurgency. Partai Aceh believes that if it remains firm, Jakarta will eventually concede, as it did in 2012 over an election dispute.

Indonesian President Yudhoyono’s government is torn. On the one hand, it does not want a fight with the GAM leaders; the 2005 peace agreement is the most important achievement of a president who, in his final term, is very much concerned about his legacy. It also is unwilling to provoke GAM too far, fearful that it will return to conflict, a fear many in Aceh discount as unwarranted but one that Partai Aceh has exploited with relish. On the other hand, it does not want to be branded as anti-nationalist as the 2014 election looms, especially as some in the security forces remain convinced that GAM has not given up the goal of independence and is using democratic means to pursue it. The president and his advisers also know that if they allow the GAM flag to fly, it will have repercussions in Papua, where dozens of pro-independence activists remain jailed for flying the “Morning Star” flag of the independence movement.

GAM leaders see little to lose by standing their ground. The flag is a hugely emotive symbol, and defying Jakarta is generally a winning stance locally. Some individual members of parliament see it as a way of regaining waning popularity for failing to deliver anything substantive to their constituencies. Also, Partai Aceh took a controversial decision to partner with Gerindra, the party of former army General Prabowo Subianto, for the 2014 election. Leaders like Muzakir Manaf, deputy governor and former commander of GAM’s armed wing, may want to use the flag issue to show they have not compromised their principles by allying with a man whose human rights record is often questioned.

Within Aceh, adoption of the GAM flag has sparked protests from non-Acehnese ethnic groups in the central highlands and south west. The GAM heartland has always been along the east coast; to highlanders like the Gayo, the flag thus represents the domination of the coastal Acehnese at their expense. The issue has revived a dormant campaign for the division of Aceh into three by the creation of two new provinces, Aceh Leuser Antara (ALA) for the central highlands and Aceh Barat Selatan (ABAS) for the south west. If GAM does not back down on the flag, support for that campaign by the intelligence services is likely to rise, and with it, the probability of increased ethnic tensions.

The options for breaking the stalemate seem to be as follows: the government concedes; GAM concedes, making slight changes to the flag by adding or removing an element; GAM agrees to limits on how or where the flag can be displayed; or the dispute is taken to the Supreme Court, thereby delaying any resolution.

In the meantime, the power of the GAM machinery in Aceh continues to grow.

Jakarta /Brussels, 7 May 2013