The first and probably most fundamental principle of the MoU (article 1.1.2 a) reads, ‘Aceh will exercise authority within all sectors of public affairs…except in the fields of foreign affairs, external defence, national security, monetary and fiscal matters, justice and freedom of religion, the policies of which belong to the Government of the Republic of Indonesia in conformity with the Constitution.’ The definition of central government responsibilities in the law (article 7) is a bone of contention: ‘governmental affairs having the characteristics of national affairs, foreign affairs, defence, security, judicial, monetary, national fiscal, and certain affairs in the religious sector.’
GAM (and some other stakeholders in Aceh) misinterpreted the MoU principle as meaning that Aceh would have the right to exercise all authorities within all sectors of public affairs – and that the central government’s authority in Aceh would be restricted to the six sectors mentioned in the MoU. The wording of the MoU does not justify this interpretation, and such an arrangement would also be unrealistic as there are numerous functions outside the six sectors mentioned in the MoU that need to be regulated and/or implemented by central government. This is particularly true for those government functions that constitute the constitutional obligations of the central government, are related to international conventions that have been translated into national law, or to government functions, the implementation of which by the government of Aceh would affect other regions of Indonesia or even other countries.
The potential for conflicts has been aggravated by the fact that the national parliament chose to elaborate on the additional functions of the central government in Aceh by calling them ‘governmental affairs having the characteristics of national affairs’ and proceeding to elucidate on this in a way that leaves room for multiple interpretations. Making use of another imprecise stipulation of the law, the central government has decided to regulate its own functions in Aceh by a Government Regulation (Peraturan Pemerintah). The draft of this regulation, which has been submitted to Aceh for comments, suggests that the central government intends to exercise largely the same responsibilities in Aceh as in all other provinces of Indonesia (except for Papua). Judging from comments from GAM and high ranking provincial government officials so far, further heated dialogue between Aceh and the central government on this draft regulation can be expected.
The controversy will not end here, but will extend to issues regarding the way in which the central government intends to implement its responsibilities in Aceh. The stipulation of the LoGA that ‘the central government sets norms, standards and procedures and conducts the supervision over the implementation of government functions by the Government of Aceh and District/City governments’ (article 11.1) suggests a broad range of central government authorities over the implementation of regional governance. This seems far from what the proponents of the MoU, principally GAM, understood by effective self-government. While the imposition of national norms, standards and procedures may be justified in many cases, this must be handled with care if the basic idea of special autonomy for Aceh is to be safeguarded. The potential for a substantial diminution of Aceh’s perceived special authorities by tight central government rules and standards is particularly great when it comes to the issuance of concessions, permits and licenses, particularly related to investment and the exploitation of natural resources.
A further problem arises in article 7: ‘The Governments of Aceh (province) and Kabupaten/Kota (districts) have the authority to regulate and implement government functions in all public sectors except government functions that are the authority of the central government.’ In other words, the law demands shared responsibility between the province and the districts in implementing Aceh’s special autonomy. GAM intended that full responsibility for the implementation of special autonomy be assigned to the provincial government. Instead, the LoGA assigns authority to both levels of government without providing sufficient clarity regarding the distribution of government functions. Therefore, Aceh has to find a way of establishing power-sharing arrangements between the province and the districts in order to avoid conflicting regulations between the two levels of government. Lack of consistency between provincial and district level regulations could lead to legal uncertainty, which would have a detrimental impact on Aceh’s investment climate. Equally, an overly dominant role of the province in determining the regulatory framework for Aceh’s special autonomy might nourish the impression that centralism has shifted from Jakarta to Banda Aceh and reinforce tendencies in some districts to break away from Aceh and form their own provinces.