International Experiences of Self-Determination

8/3/2019 International Experiences of Self-Determination

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Autonomy

and

Peace Review

INSTITUTE FOR AUTONOMY AND GOVERNANCE KONRAD-ADENAUER-STIFTUNG


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CONTENTS

Editorial

The Rights and Wrongs of Self-Determination

of Peoples

Speaker Jose de Venecia, Jr.

Sri Lankas Peace ProcessThe Tamil Quest for Self -

determination

Jehan Perera

Thai Constitutional Development: National

Infrastructures for Right to Self-Determination

of PeopleSukree Langputeh

The Struggle for Self-determination in Aceh

Ayesah Abubakar & Kamarulzaman Askandar

European Experiences in Accommodating Ethnic/

National Differences

Gabriel Munuera Vials

Bangsamoro Self-determination

Abhoud Syed M. Lingga

5

7

15

29

43

59

79


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EDITORIAL

[5]

This issue of the Autonomy and Peace Review is a sequel

to the series of papers published in the January-March edition

exploring different models of the right to self-determination ofpeoples. We feature in this issue the papers presented during the

International

Roundtable

Conference on

the Right to

Self-

Determinationof Peoples

which the

Institute for

Autonomy and

Governance and

the Konrad

Adenauer

Foundation organized last July 16-18, 2007 at the Asian Instituteof Management Conference Center, Makati City.

The roundtable conference brought together academics

and practitioners on models of self-determination from countries

which are confronted with similar demands for recognition and

assertion of the right to self-determination by minority groups

Editor ial Board

Benedicto R. Bacani

Executive Director

Institute for Autonomy

and Governance

Eliseo R.

Mercado Jr., OMI

Senior Policy Adviser

IAG

Zainudin Malang

Executive DirectorMoro Law and Policy

Center

Amina Rasul

ConvenorPhilippine Council for

Islam and Democracy

Suharto Ambolodto

Executive Director

Institute for Strategic

Initiatives

Klaus Preschle

Country RepresentativeKonrad-Adenauer-

Stiftung


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[6] Autonomy and Peace Review

within their

borders. It

fostered better

understanding of

the claim for self-determination of

the Moro people

and other

indigenous

groups in the

Philippines. The

proceedings also

informed currentprocesses

shaping the

structures and

policies for the

meaningful

exercise of Moro

self-determination at

present and in the

future.

It is

hoped that by

continuing our

discourse on self-determination

cases in Aceh,

South Sudan,

South Thailand,

Sri Lanka as well

as models for

accommodating ethnic and nationalist differences in European

countries, we would be able to formulate meaningful yet viableformula for Moro self-determination in the southern Philippines.


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[7]

IM PLEASEDAND HONOREDTO ADD MY

WELCOME to those already expressed here for all the participants

in this International Round-Table Conference on the Right to Self-

Determination of Peoples, sponsored by the Konrad Adenauer

Stiftung and the Institute for Autonomy and Governance.

The Changed Concept of Self-determination

THE CONCEPT OF SELF-DETERMINATION has

changed a great deal since the end of the colonial period a generation

ago.

During the age of empires, self-determination was the

battle-cry of the colonial peoples of Asia and Africa.

To our independence generation, self-determination was the

process by which a country determined its own statehoodand

formed its own allegiances and government.

Self-determination to our fathers meant liberation from

foreign rule.

Self-determination meant politicalfreedom.

But now that the age of colonialism is over, self-

determination has acquired a new connotation.

In our time, it has become re-defined as the process by which

The Rights and Wrongs of

Self-Determination of Peoples

Speaker Jose de Venecia, Jr.

House of Representatives


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a community within a state controls its own communal life.

Self-determination has become a sub-nationalinstead

of a nationalidea.

The Minoritys Right to Self-determination Diminishes the

Majoritys Sense of the Nation

As a PHILOSOPHICAL IDEA, the concept of self-

determination for distinct peoples continues to be widely

accepted.

But in practice, self-determination for distinct communitiesliving within a larger national unit is difficult to organizeif only

because peoples are very seldom, if ever, neatly divided into discrete

nations occupying well defined territories.

States populated by only one distinct nationality are

difficultif not impossibleto find.

So that while movements for self-determination may be

widespread, they also face just as widespread opposition from

majority populations.

And its easy to understand why.

Because the complete satisfaction of a minority peoples

right to self-determination inevitably diminishes not only themajority peoples economic and political power but also offends its

sense of nationality and territorial integrity as well.

Movements for Self-determinationand the Opposition to them

Both Widespread

WHY ARE MOVEMENTS for self-determination so

widespread in our time?

The breakdown of the colonial empires has sharpened


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[9]The Rights and Wrongs of Self-Determination of Peoples

divisions of ethnicity, language, religion, and even of relative

economic or political power among peoples in the pluralist societies

of the developing world.

And minority peoples in every pluralist state tend naturally

to cling to their culture, language, lifeways, religion, - to any

characteristics that differentiates them and make them distinct.

Meanwhile, the majority people seeks to assimilateto

integrateto incorporatethe minority peoples into the national

communityunder its leadership. Alternatively it rejects, neglects,

or oppresses the minority peoples.

Typically, situations like this leads ultimately to conflict.

In plural societies such as Yugoslavia, movements for self-

determination (as in Bosnia-Herzegovina) can be so intense as to

produce large-scale atrocities euphemistically called ethnic

cleansing.

This is also true in many parts of Africanotably in Darfur

(Somalia) and in Rwanda- Urundi.

Even the civil war in Iraqwhich the American invasion

has set offis in many ways motivated by movements of self-

determination among its peopleswho are divided religiously and

ethnically into Shiites, Sunnis and Kurds.

The Limits of Self-determination

FOR THESE REASON, national leadership in the new

countries take local movements for self-determination very seriously

indeedsince extremist claims to autonomy can lead so easily into

separatistconflicts.

In factas you knowwe have conflicts of this kind in

Aceh and East Timor in Indonesia; in Pattani in Southern Thailand;

among the Karens and a dozen other minorities in Myanmar; and


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among the hill tribes of Vietnam and Cambodia.

We Filipinos even now are in the middle of mourning our

most recent casualties in a separatist war being waged by Islamist

in our Muslim communities in portions of Mindanao and Sulu.

Six days ago, these rebels killed 14 marines in an ambush

in Basilan Provincewhile the soldiers were looking for an Italian

missionary the rebels had kidnapped.

That ten of the soldiers bodies were mutilated and beheaded

tell us how brutal our separatist conflictwhich has raged off and

on since the early 1970shas become.

Reconciling These Movements for Self-determination with

Majority Opposition

HOW DO WE RECONCILE minority movements for self-

determination with the unavoidable resistance from majority peoples

that they are bound to attract?

To find a resolution, I believe we should start from the truism

thatlike every other human rightthe right to self-determination

of a community has a corresponding responsibility.

The bottom line is that self-determination for minority

peoples is generally possible only within the context of the pluralist

states territorial integrity, its political stability and its economicwell being.

Only in a very few instances have separatist conflicts

succeeded in creating new states. In our region, only East Timor

has been able to do soat such great costand now Timor-Leste

faces such dismal prospects (despite the prospect of offshore oil in

the Timor Sea), as to make the entire effort seem dubious.

Short of separatism, most central governments are generally

willing to grant distinct communities nearly as much political and


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social (religious) autonomy as they would wish particularly if

these communities are prepared to exert coercive power to obtain

them.

In the case of conservative Muslim province of Aceh, in the

West Sumatra, the government of President Susilo Bambang

Yudhoyono went as far as to grant the provincial authority a generous

share of the national revenues from Acehs resources of oil and gas.

For our Muslim communities of Mindanao and Sulu, Manila

has established an autonomous region integrated into the countrys

political, military, education, economic and judicial mainstream.

This idea of an autonomous region became the basis of the

peace agreement with the secularist MNLF.

A peace agreement that Manila signed with the MNLF in

1996whose provisions included the incorporation of some of the

armed MNLF units into the national armed forcesstill is in force.

Another agreement is being threshed out with the Islamist

MILF, which broke away from the MNLF in 1981.

The talks with the MILF, which are being mediated by the

Government of Malaysia, Saudi Arabia and the OICthe

Organization of the Islamic Conferencehave overcome their

biggest obstaclethe problem of Muslim ancestral lands in parts

of western Mindanao on which Christian settlers have laid legalclaim.

As part of its program of reconciliation, Government is also

considering a catch-up program to bring up our Muslim

communities to the level of the other administrative regions in the

standards indicators of social developmentin levels of nutrition,

primary health care, life expectancy, basic education, literacy and

mass-povertyover a specific period.


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The Pros and Cons of Self-determination for Peoples

The present-day plight to Timor-Leste tells us how difficult

independent life can be for small national units in our time.

Indeed the rise of interdependenceof a new episode of

globalizationis driving states to coalesce into supra national units,

to gain economic and political economies of scale.

A countercyclical movement toward regionalism is

evident throughout the world. Independent state states are coming

togetherin Western Europe, Latin America, Africa, North

America, and in every region of Asia.

Individual states are giving up aspect of their sovereignty

to regional bodiesin return for access to internal markets, supplies

of raw material and of labor, and representation in bargaining units

able to deal equally with other regional groupings.

Given all these facts of presentday life, self-determination

for peoples in practice boils down to autonomy in a certain aspect

of governance and in social, cultural and religious life.

These include the right to determine laws on personal and

family relations; the practice of religion; authority over ancestral

lands and over local natural resources such as hydrocarbons and

mineral ores; control over local governments, the education system,

and police forces.

With goodwill and both sides, all these issues can be threshed

out amicably.

Absent this mutual goodwill, one or the other side initiates

the resort to force. And this conflict eventually produces a negotiated

result that sometimes favors the central government, and at other

times the local communitydepending on the local balance of

power.


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All too often, at the end of this exercise, the two sides find

themselves making the same concessionsand reaching the same

negotiated agreementthey could have reached, had they enough

foresight to do so without coming to blows.

Our Effort to Reconcile Self-determination for Peoples with

Territorial Integrity for the Nation

IN THIS COUNTRY, we are doing all we can to reconcile

our local communitiesright to self-determination with the Filipino

nations sense of nationality and territorial integrity.

Not only have we granted formal autonomy to our Muslimcommunity. Our plans for constitutional change include a proposal

to change from the unitary to a federal republicto enable the

administrative regionswhich are already grouped into language

clustersto develop their own unique qualities and characteristics.

The Philippine State encouragesas national policythe

development of multiplicity of local lifeways and cultures, with

mutual respect for each others linguistic, religious and cultural

differences.

We have enacted into law a code of government

decentralizationand are in the process even now of devolving

political and administrative power to local governments.

Summing Up and Closing Message

IN CLOSING, let me assure all of youwhom our friends

in the Konrad Adenauer Foundation and the Institute for Autonomy

and Governance have gathered, to provide scholarship, experience

and wisdom from other places of conflict for our own peace process

in Mindanao that we in the Philippine Government appreciate

your efforts, and wish your Round-Table the success it deserves.

Not only will the restoration of peace in our southern main


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island enable our economy to return, unimpeded by instability, to

the path of growth.

Peace in Mindanao will stop the anguish of those families

whose sons are dying in the conflict there.

Peace in Mindanao will enable us to begin the work of

reconciliation and healing that must be done among its long-

suffering peoples.

And peace in Mindanao will enable us to make that fertile

land blossom once again for all its people.

To the restoration of that peace, your deliberation can

certainly help. Rest assured we will consider your proposals closely.

Thank you; good evening, and Mabuhay!


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[15]

Sri Lanka has had a relatively long tradition of modern

democracy, stretching back to the British colonial period. The

country was one of the first countries in the world to enjoy universal

suffrage in 1931. But the inability of the political elites belonging

to the different ethnic communities to share power equitably among

themselves led to a series of broken agreements and to acute mistrust

between the communities. The difficulty of protecting minority

interests in a parliamentary system in which majority-minority

relations are strained is exemplified by Sri Lankas modern political

history.

Sri Lanka has a plural society of several different ethniccommunities numbering 19 million. The four main ethnic

communities could also be described as nationalities, as they each

have a separate sense of ethnic, cultural, historical and political

identity, and have their own areas of geographical concentration.

According to the 1981 census, which is the last that was

conducted in the entire country, the Sinhalese formed the main ethnic

group with 74 percent of the population. The majority of the

Sinhalese are Buddhists by religion and are mainly concentrated in

the south, west and central parts of the country. The Sri Lanka

Tamils with 12 percent of the population formed the next major

ethnic group. They are a clear majority in the north of the country

and the largest single ethnic community in the east. This is the

basis for the Tamil demand for autonomy, if not independence, in

the north and east of Sri Lanka, which Tamil nationalists prefer torefer to as the Tamil Homeland.

Sri Lankas Peace Process

The Tamil Quest for Self Determination

Jehan Perera


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The Muslims formed the third major ethnic group with 8

percent of the population with a concentration in the east. It is now

estimated that they form the largest single community in the east.

The Up Country Tamils, who are of recent Indian origins, formed

the fourth major community with about 5 percent of the population.

They live in the central hills of the country and have not been

involved in the separatist conflict. Most of the Tamils are Hindu by

religion. While a minority of both Sinhalese and Tamils comprising

about 7 percent are Christian by religion, they are not considered to

be a separate ethnic group.

A weakness of the Westminster system that Sri Lanka

inherited from the departing British colonial rulers is that inethnically divided societies, it permits the largest ethnic community

to obtain the largest number of seats in parliament, and then take

unilateral decisions that affect the smaller ethnic communities. In

Sri Lanka, the centralised state bequeathed to the newly independent

country in 1948 effectively transferred political power into the hands

of the Sinhalese ethnic majority.

Nearly four decades later, with Tamil militancy on the rise,

the Sri Lankan government attempted to negotiate with the Tamil

militant parties in Bhutan with Indian facilitation. At the Thimpu

peace talks of 1985, four principles were enunciated by the Tamil

parties, both democratic and militant, that negotiated with the Sri

Lankan government. The Thimpu principles put forward referred

to the Tamils as a nation, entitled to the right of self-determination

in a Tamil homeland. These principles were rejected by thegovernment and mainstream Sinhalese-dominated political parties

in the country as being tantamount to separation. But they continue

to be reference points for the Tamil polity.

The challenge to Sri Lanka today is to find a suitable

structure of governance in which two or more peoples can co-exist,

cooperate and be partners within a single state without the members

of one group being able to unilaterally impose their wishes on the

members of the other groups. Sri Lankas experience with the


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[17]Sri Lankas Peace ProcessThe Tamil Quest for Self-determination

Westminster system of government is that it has enabled the

representatives of the ethnic majority to monopolise power in a

unitary constitutional framework and rule over the ethnic minorities.

Ceasefire Agreement

When the Tamil militancy first arose in the late 1970s, the

immediate reaction of the Sri Lankan government was to define the

violence as terrorism and to suppress it through law and order

methods. When the police proved unequal to the task, the army

was sent in, but with the same result, except that a process of

escalation had started that fed upon itself. The outcome was civil

war in which two armies, one government and one Tamil, facedeach other head on in the field of battle. As a corollary the

government lost physical control over a large part of the territory in

the contested north and east of the country.

The Ceasefire Agreement that forms the cornerstone of the

peace process was signed in February 2002 with facilitation from

the Government of Norway after a period that had witnessed major

military setbacks for the government. The Ceasefire recognised

the essential military parity between the two parties. It recognised

that the LTTE had achieved control over territory, and demarcated

lines of control. The Ceasefire Agreement established lines of

control between the government and LTTE. It led to the lifting of

the governments ban on the LTTE, and to providing the LTTE with

an equal place and status at the negotiating table.

Among the breakthroughs during the first phase of the peace

process, which lasted from February 2002 to April 2003, was the

agreement to explore a framework of federal governance for the

country. At the Oslo talks in December 2002, the LTTE agreed

along with the government to explore a federal solution. The final

statement signed at the close of that session of peace talks stated,

Responding to a proposal by the leadership of the LTTE, the parties

agreed to explore a solution founded on the principle of internal

self-determination in areas of historical habitation of the Tamil-


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speaking people based on a federal structure within a united Sri

Lanka. The parties acknowledged that the solution has to be

acceptable to all communities. 1

LTTE Proposal

In the middle of 2003, with the peace talks suspended and

the ceasefire deteriorating, the LTTE focused its attention on the

production of its political proposals, holding a wide range of

consultations with local and international experts in its capital of

Kilinochchi and also in numerous foreign countries, including

France, Northern Ireland, Denmark, Norway and Switzerland. The

document they have produced can be considered to be a conciseexposition of nationalist Tamil thinking over which there is the final

authority of the LTTE.

With its proposals for an Interim Self Governing Authority

the LTTE gave concrete form to its expectations in a manner that

was not incompatible with peaceful coexistence in a united Sri

Lanka.2 The LTTE recognised the right of the Sri Lankan

government to appoint members to the ISGA, and did not challeng

the right of the Sri Lankan security forces to be present in the north

east. However, when it came to formulating their proposals for an

interim solution, the LTTE made no reference to the Oslo agreement,

or to federalism. The preamble to the LTTEs proposals, described

as proposals on behalf of the Tamil people, also acknowledged with

appreciation the services of the Norwegian government and the

international community.

The LTTE proposals called for the establishment of an

Interim Self Governing Authority (ISGA) for the north east in which

the LTTE would have an absolute majority of members. Thereafter

the proposals indicated that complete autonomy was sought in

virtually every aspect of the political and economic life of the people.

There was no mention of the federal consensus arrived at by the

government and LTTE during the Oslo peace talks in December

2002. Federalism means both self rule and shared rule. The LTTEs

proposals focused on the self rule aspect alone.


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The LTTE proposals specified that separate institutions

needed to be set up for the north east in respect of police, judiciary,

elections, taxation, local and foreign grants and loans, and trade

among others. There was an assurance that internationally mandated

standards of human rights, accountability, multi-ethnic

representation and free and fair elections will prevail. But all the

institutions that were to be set up to ensure such good governance

practices would be under the sole control of the ISGA which was to

have an absolute LTTE majority.

When viewed in the abstract the LTTEs ISGA proposals

are separatist in orientation. For instance, they seek full judicial

power over all matters that are subject to the ISGA. This wouldmean that LTTE courts replace the Sri Lankan judicial system even

in government-controlled areas such as Jaffna, with no right of

appeal from them. Such full power is also sought for coastal waters

and resources. The ISGA proposals also do not mention which

authority will have final decision making power in many crucial

areas of governance, such as defence, foreign affairs and trade.

It is noteworthy that the LTTEs proposals made no provision

for integration with the nationally prevailing structures. Viewed in

this context it is not surprising that the Sri Lankan governments

response to the LTTE proposals was cautious and restrained. The

governments immediate response was to say that there were

fundamental differences between the LTTEs proposals and those

submitted several months earlier by the government.

Representatives of the Muslim community who had not beenconsulted in the design of the ISGA document saw it as an LTTE

imposition and another example of Tamil insensitivity to the Muslim

communitys separate identity.

In its own proposals regarding an interim administration

for the north east, the government specifically excluded matters

pertaining to police, land, revenue and security from the purview

of the interim administration. But in the LTTEs counter proposals,

all the above with the exception of security are specifically

considered to be the domain of the ISGA. Further, in the


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governments proposals an absolute majority in the interim

administration was conceded to the LTTE. But provision was made

for a minority veto on matters that affected the interests of the

Muslim and Sinhalese communities living in the north east. This

provision was absent from the LTTEs proposal, which was also

silent about how the minority communities in the north east could

truly share power with the LTTE-appointed majority.

On the ground the Muslims and Sinhalese of the east, who

presently constitute over 60 percent of the population, strongly

protested their inclusion into an LTTE dominated administration.

The Muslims in particular were vociferous about their opposition,

as in the Sri Lanka Muslim Congress they have a political partythat draws virtually all its strength from the east. The SLMCs

first response to the LTTEs proposals was to say that they did not

meet Muslim aspirations.

Self rule as proposed by the LTTE needed to be

supplemented by shared rule, both by north east Tamil

representatives at the central level, and by the Sri Lankan

government at the regional level. Unfortunately,President Chandrika

Kumaratunga seized on the opportunity to claim that national

security was threatened by the LTTE proposal, dissolved the

government of her rival, Prime Minister Ranil Wickremesinghe and

called for fresh Parliamentary elections. At the election campaign

that followed in April 2004, a nationalist Sinhalese campaign that

denounced the Ceasefire Agreement as a capitulation to the LTTE,

and as having set the stage for the LTTEs proposed ISGA, took thecentre stage. It resulted in the routing of the former government

and dampened the prospects for a negotiated peace agreement.

Joint Mechanisms

The fundamental weakness in the peace process was the

failure to effectively negotiate an agreement on the political

framework within which the peace process could be located. The

failure to reach agreement on these parameters meant that both the

government and LTTE had an incentive to strengthen themselves


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on the ground, so as to be in a stronger bargaining position in the

future. The efforts of the government and LTTE to rearm

themselves, upgrade their weaponry and to eliminate opponents,

particularly on the part of the LTTE, could be attributed to this

reason.

In addition, the failure to agree on the parameters of a

permanent solution also compromised the effort to set up an interim

administration for the north east. It meant that the government and

LTTE were attempting to come up with an interim settlement without

a common vision of a final settlement. It also meant that the

governments idea of an interim solution was anchored to its

commitment to the centralised model of the unitary state, while theLTTEs idea of an interim solution was anchored in their ideal of

separation.

It required the tsunami of December 26, 2004 to break the

political stalemate with regard to the situation in the north east.

The tsunami took nearly 40,000 lives with most of the victims being

in the north east sea coast. After protracted negotiations, the

government under President Kumaratunga and LTTE agreed to set

up a Post Tsunami Operational Management Structure, better known

as the Joint Mechanism or by its abbreviation, PTOMS. The signing

of the agreement in June 2005 heralded a possible new phase of the

peace process.

The agreement to establish PTOMS was designed to make

the LTTE enter into partnership with the government in the area ofeconomic reconstruction and development. The PTOMS agreement

was primarily negotiated between the government and LTTE with

the Norwegian facilitators playing only a secondary role. The

PTOMS agreement demonstrated that even in a situation of armed

hostilities, it was possible for the government and LTTE to reach

agreement on very substantial matters if there was the necessary

political will.

What was significant about the PTOMS agreement was that

it provided a possible model for a larger structure of governance


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that could incorporate the entirety of the contested north east, and

not just its tsunami-affected areas. It was a well crafted document

with many safeguards and checks and balances in it. For instance,

the one year term, two kilometer limit, minority veto and

international monitoring provisions left little room for any dangerous

abuse of the system.

Another major achievement was the marked shift in the

attitude of the LTTE itself that occurred in the course of the

negotiations. A comparison of the PTOMS with that of the LTTEs

proposed Interim Self Governing Authority (ISGA) proposal showed

a significant difference. According to various statements made by

the LTTE, they were prepared to be flexible because the jointmechanism dealt with humanitarian issues arising out of the tsunami

tragedy. The LTTE drew a distinction between the joint mechanism

and their yet unmet demand for an interim administration.

Nevertheless, the LTTEs willingness to adopt a step-by-step

approach to power sharing rather than a maximalist solution needed

to be appreciated.

The PTOMS mechanism also provided for safeguards within

it for the Muslim and Sinhalese ethnic minorities in the north east.

The powerful regional committee provided for ten members, five

of whom were to be LTTE appointees, three Muslims and two

Sinhalese. The first safeguard was that even two of the ten members

in the joint mechanism at the regional, or north east, level could

trigger off a minority safeguarding mechanism. If two of the ten

felt that a particular decision was adverse to the interests of an ethnicminority, a simple majority would not suffice to ratify that decision.

Instead seven out of ten, or more than two thirds of the members

would have to give their assent to that decision for it to be

operational.

The second safeguard was that the joint mechanism at the

district level would include observers from the international donor

community. Their presence in the joint mechanism would help to

ensure transparency and accountability as no international donor

would wish its money to be used for secret or illegitimate purposes.


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There was also the likelihood that the World Bank, with its strict

accountability and auditing criteria, was to be the custodian of the

funds.

It is tragic that political manoeuvering and ethnic prejudice

should have led to the stalling of the PTOMS agreement. The

agreement was challenged in the Supreme Court which delivered a

judgment that was praised by Sinhalese nationalists who filed the

action and that knocked the main substance out of it. Prime Minister

Mahinda Rajapaksa, who went on to become the victorious

candidate at the Presidential elections of November 2005 promised

he would not implement the agreement if he was elected, which

promise he kept.

Being involved in the governance of an interim

administration would have given the LTTE access to developmental

resources and to formal engagement with international governments

and aid agencies. The failure to successfully establish an interim

administration, or even devise a substitute for it, such PTOMS, has

meant that the LTTE was excluded from taking on formal

responsibilities of governance in the north east for the entire duration

of the peace process.

End Piece

Since the election of President Mahinda Rajapaksa in

November 2005 the country has been in the throes of an undeclared

war. It is a war that is undeclared because neither the governmentnor the LTTE are prepared to take responsibility before the people

and the international community for starting the war. Indeed, at the

initial stages of breakdown, both sides publicly denied responsibility

for most of the acts of violence that they perpetrated against each

other. Neither side has been prepared to formally denounce the

Ceasefire Agreement of 2002.

The renewal of conflict under the administration of President

Rajapaksa makes any political settlement more difficult. The Sri

Lankan armed forces have taken control of significant amounts of


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territory that was hitherto controlled by the LTTE. Although the

LTTE has been militarily weakened by internal splits and increased

international pressure on its fund raising among the Tamil diaspora,

it remains a formidable military force able to mount guerrilla attacks

in different parts of the country and to launch conventional military

attacks in the north. 3

The governments military strategy at the present time is to

diminish LTTE power by eliminating its administrative presence

and institutions wherever possible. The fierce military battles that

have been taking place in the east, with little consideration of the

civilian cost, is evidence for this strategy. There is reason to believe

that the government will not be content with only clearing up theeast, and that it will progressively seek to limit LTTE power in the

north as well. The battles are taking longer than expected, but the

general trend in these military confrontations has been favourable

to the government.

Simultaneously, the government has taken steps to develop

a political framework for a political solution. But it is presently

keeping this separate from its war strategy. During the Kumaratunga

presidency there was much criticism that its two-pronged military

and political approach was undermining each of the two prongs. It

was said, for example, that the former governments propaganda

about the desirability of a political solution discouraged military

recruitment.

Although President Rajapaksa has mandated the All PartyConference to work out a political solution to the ethnic conflict,

this process is clearly subordinate to the military option at the present

time. There are no governmental education programmes on a power

sharing political solution, as there was during President

Kumaratungas time. Right now, the Rajapaksa government does

not appear to want a political solution that is acceptable to the forces

of Tamil nationalism to undermine its military successes.

The indications at present are that the war will continue

with broad support from the majority of the population, in particular


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the Sinhalese majority. A Social Indicator poll conducted by the

Centre for Policy Alternatives in early 2007 showed that more than

half of the Sinhalese polled favour the military weakening of the

LTTE, even though most of them also favour a political solution to

the ethnic conflict.4

Tragically the war appears to have a beguiling allure to both

the Rajapaksa government and to the LTTE. Those who support

the governments military campaign believe that the government

has to defeat the LTTE in order to defeat the threat of Tamil

separatism. On the other hand, those who support the LTTEs

military campaign would believe that the LTTE has to wrest Tamil

rights, and Tamil territory, by force of arms away from thegovernment. But both are dealing with symptoms, not the causes.

The fact is that the ethnic conflict existed before the LTTE was

formed or the Rajapaksa government came into power.

The main argument against the notion of a military solution

is that eradicating a symptom cannot end the cause of the problem.

Even if the government were to defeat the LTTE on the battlefields

of Sri Lanka, it will not be able to eradicate the Tamil nationalism.

The desire of Tamil people to enjoy equal rights and to have real

decision making power in Sri Lanka, whether in the north and east

or in Colombo, is not limited to the LTTE-controlled Wanni. It

exists in the same measure in other parts of the north and east, in

Colombo and elsewhere in the country. In addition, there is a vast

reservoir of Tamil nationalism in the Tamil expatriate community

that lives abroad, that no amount of military solutions in Sri Lankacan ever hope to subdue. There is only one answer to Tamil

nationalism and that is a just political solution that accords with

universal human rights principles.

Bibliography

K.M. de Silva, Reaping the Whirlwind: Ethnic Conflict, Ethnic

Politics in Sri Lanka. Penguin, India. 1998

Jane Russell, Communal Politics under the Donoughmore


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Constitution 1931-47, Tissara Prakashakayo, 1982, P. 192

National Peace Council, Cost of the War, Colombo 2006

National Peace Council, Media Releases 1996-2005, Colombo 2006

International Alert, Sri Lanka: Emergency, London, 1986

Godfrey Gunatilleke, Negotiations for the Resolution of the Ethnic

Conflict, Marga: Monograph Series on Ethnic Reconciliation, No

1, 2001

Kumar Rupesinghe (Ed), Negotiating Peace in Sri Lanka: Efforts,Failures and Lessons, International Alert, London, February 1998

International Crisis Group, Sri Lanka: The failure of the peace

process, 28 November 2006

University Teachers for Human Rights (Jaffna) publications. Hubris

and Humanitarian Catastrophe, Special Report No 22, 15 August

2006

Peace Confidence Index, Social Indicator, January 2007

The Island Newspaper

The Daily Mirror newspaper

www.peaceinsrilanka.org

www.peace-srilanka.org

www.tamil net.com

Notes

1 The website of the governments peace secretariat,

www.peaceinsrilanka.org, contains the full texts of documents


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relating to the peace process.2 See www.tamilnet.com for LTTE documents3 International Crisis Group, Sri Lanka: The failure of the peace

process, 28 November 20064 Peace Confidence Index, Social Indicator, January 2007


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[29]

Prologue

The paper envisages to investigate national constitutionaldevelopment since Thai modern state has well embraced democratic

notions of governance to be led by the PEOPLE, of the PEOPLE

and for the PEOPLE in 1932. It is, however, interesting to note that

since then until 2007 17charters and constitutions have been drafted

and implemented. Not the contents of these charters and

constitutions that created national emotions but also how they were

drafted have been more powerful to be claimed national democraticdevelopment, like the 16th 1997 constitutional drafting process that

had gain great political momentum nationwide and called the most

populous PEOPLEs constitution. It is really a civic constitution

that has been paving the way for better and broader human rights

issues to be infused and geared. This paper, then studies how this

development plays the role of building national infrastructures for

right to self-determination of people in Thailand.

Thai Constitutional Development:

National Infrastructures for Right to

Self-Determination of People

Sukree Langputeh

This paper was presented at International Roundtable Conference on

Right to Self-determination of Peoples jointly organized by Institute for

Autonomy and Governance and Konrad Adenauer Stiftung at Asian

Institute of Management Conference Center Makati City, Metro Manila,

Philippines, July 16-18, 2007.

Dean, Faculty of Liberal Arts & Social Sciences, and Board of Directors,

Al-Salam Institute, Yala Islamic University, Pattani, Thailand.


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Thai Constitutional Development: National Democratic

Infrastructure

The Constitution of the Kingdom of Thailand is the

supreme law of the Kingdom of Thailand. Since the founding ofthe modern state in 1932, Thailand has had 17 charters and

constitutions, reflecting the high degree of political instability and

frequency of military coups faced by the nation. After successful

coups, military regimes often abrogated existing constitutions and

promulgated new ones.All of Thailands charters and constitutionshave allowed a constitutional monarchy, but with widely differing

balances of power between the branches of government. Most of

them have stipulated parliamentary systems, however, several ofthem also called for dictatorships, e.g., the 1957 Charter. Both

unicameral and bicameral parliaments have been used, and members

of parliament have been both elected and appointed. The direct

powers of the monarch have also varied considerably. This can be

learnt through the nations 65 years democratization process with

its 17th charters and constitutions as follows:

1. Temporary Charter for the Administration of Siam Act

1932

2. The Constitution of the Siam Kingdom 1932

3. The Constitution of the Kingdom of Thailand 1946

4. TheConstitution of the Kingdom of Thailand

(Temporary) 1947

5. TheConstitution of the Kingdom of Thailand 1949

6. The Constitution of the Kingdom of Thailand 1932(Revised 1952)

7. The Charter for the Administration of the Kingdom 1959


9. The Temporary Charter for Administration of the

Kingdom 1972

10. The Constitution for the Administration of the Kingdom

197411. The Constitution for Administration of the Kingdom

1976


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[31]

Thai Constitutional Development: National Infrastructures for Right to


12.The Charter for Administration of the Kingdom 1977


14. The Charter for Administration of the Kingdom 1991



17. The Constitution of the Kingdom of Thailand (Interim)

2006

The last permanent constitution was promulgated in 1997.

Called and acknowledge by all walks of lifves as the Peoples

Constitution, it was considered a landmark in terms of the degree

of public civic participation involved in its drafting as well as the

democratic nature of its articles. It stipulated a bicameral legislature,both houses of which are elected. Many human rights are explicitly

acknowledged, and measures were established to increase the

stability of elected governments.

However, following an army-led coup on 19 September

2006, this Constituton was abrogated. The junta ruled the country

by martial law and executive decree for weeks, until it promulgated

an interim constitution on 1 October 2006. The Interim Constitution

allowed the junta to appoint a Prime Minister, legislature, and

drafting committee for the next 18th permanent constitution. Human

rights were broadly acknowledged, but junta censorship as well as

bans against assembly and political activities were not repealed

One might see that the great number of charters and

constitutions is indicative of the degree of political instabilityThailand has faced in its modern history. The majority of charters

and constitutions were the direct or indirect result of military coups.

Charters and constitutions for much of Thai history can be thought

of, not as instruments of the people to control the government, but

as instruments by which a government controls its people. These

political parameters have been influenced by the political and

military strength of the regime and the degree of support from the

king and the palace. For instance, the 1959 Charter gave Sarit

Dhanarajata absolute power over the executive and the legislature,

which reflected the overwhelming strength with which he executed


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a coup over Plaek Pibulsonggram as well as his strong support from

the palace.

Based on the degree by which the legislature is elected,

Thailands 17 constitutions and charters can be categorized into 3

groups:

1. Elected legislatures: The legislature is completely

elected. This included the 1946 Constitution (where the

elected House selected the Senate) and the 1997

Constitution (where both the House and Senate are

elected)

2. Appointed legislatures: The legislature is partly elected

and partly appointed by the executive. The appointed

members of the legislature are sufficient to limit the

power of the elected representatives. The Prime Minister

is either a military leader or a figurehead of the military

or the palace. This includes the (after 1937), the 1947

Charter, the 1949 Constitution, the 1952 Constitution,

the 1968 Constitution, the 1974 Constitution, the 1978

Constitution, and the 1991 Constitution

3. Absolute executives: The executive has absolute or near

absolute power, with either no legislature or a completely

appointed legislature. The Prime Minister is usually a

military leader or a figurehead of the military or the

palace. This includes the 1932 constitutions (before1937), the 1959 Charter, the 1972 Charter, the 1976

Constitution, the 1991 Charter, and Thailands current

charter, the 2006 Interim Charter.

1997 Peoples Constitution: Landmark for Political & National

Human Rights Reforms

The 1997 Constitution was widely hailed as a landmark in

democratic political reform. Promulgated in 11 October 1997, it


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[33]



was the first constitution to be drafted by an elected assembly, and

hence was popularly called the Peoples Constitution. The 1997

Constitution has several innovations compared to previous

constitutions, including:

1. Political Reform

Voting was made compulsory in order to ensure high-

turn out reduce vote buying. A mixed electoral

system based on Germanys was adopted for the

House of Representatives. 100 members of the

House are elected from party lists, and the remaining

400 are elected from single-member constituencies.

MPs were required to have a bachelors degree. Anindependent Election Commission was established

Strengthening the executive branch.[36] A 2/5s vote

of the House was required for a vote of no confidence

debate against a Prime Minister. A successful vote

of no confidence required a majority of 1/2 of the

House. Only 1/5th of the House was required for a

no confidence motion against an individual Minister.

These measures were aimed at increasing the

stability of governments.

Greater separation between the executive and

legislative branches. MPs were forced to resign from

the House in order to become Cabinet Ministers.

Decentralization of government, including the

establishment of elected Tambol Administrative

Organizations (TAOs) and Provincial Administrative

Organizations (PAOs). School administration was

also decentralized.

2. Human Rights Reform

A plethora of human rights were explicitly

recognized, including the right to free education, the

rights of traditional communities, and the right and


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duty to peacefully protest coups and other extra-

constitutional means of acquiring power. The right

to protest coups was banned following the 2006

coup.

Increased checks and balances, including new

independent government agencies like the

Constitutional Court, the Administrative Court, the

Office of the Auditor-General, the National Counter

Corruption Commission, the National Human Rights

Commission, the Consumers Protection

Organization, the Environmental Conservation

Organization, and an Ombudsman.

The matters with which we are most concerned form Chapter

3 of the 1997 Constitution onRight and Liberties of Thai People

are mostly as follows;

1. Freedom of Communication (Article 37). This Article

provides excellent public protection against censorship.

It guarantees UNFETTERED COMMUNICATION by

any means, INCLUDING THE INTERNET. This

section MUST be retained and the specific consideration

of the Internet added. ADD to this PRIVACY

consideration that prohibits any individual, including

those representing any greater body in government or

the private sector, from retaining any records of anyindividuals Internet activity such as retention of searches

and IP address logs, as at present.

2. Freedom of Expression (Article39). This section

allows all persons in Thailand to express their opinions

in all forms, both spoken and written. It is an excellent

guarantee that all persons in Thailand have full access

to all information, free of censorship. This section MUST

be retained. It should be broadened to PROHIBIT ALL

CENSORSHIP: no banned books. It should also provide


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[35]



greater emphasis to the prohibition of government

involvement in media ownership.

3. Free Public Expression (Article 41). Press and media

freedom.

4. Academic Freedom (Article 42). This section should

be broadened to PROHIBIT ALL CENSORSHIP of all

academic discussion, whether oral or written. No banned

books.

5. Freedom of Association (Article 45). MUST be

retained.

6. Public Information (Article 58 and 59). Access by all

persons to government will eliminate corruption, make

politicians and bureaucrats accountable to the public and

make government honest and transparent.

information, explanation, reason MUST be

retained.

7. Public Participation in Government (Article 60).

MUST be retained for protection of the public from

government secrecy.

8. Right to Petition (Article 61). All persons in Thailand

must have the right to petition government for redress.

Currently, theNational Human Rights Commission ofThailand is only empowered to give recommendations

to government with no enforcement powers in law. This

allows government agencies and individuals to ignore

both NHRCs requests for information and clarification

and to ignore NHRCs final recommendations. We

should give this section more teeth.

9. Right to Sue (Article 62). As a last resort, all persons

in Thailand should be able to bring suit against any

individual in government or any government agency for


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redress. This section should also make provision that

government will provide competent, legal counsel, as

well as all court costs and fees, FOR FREE to anyone

not able to pay. This will enable all persons, regardless

of economic status to, have power in government. There

may be some risk of spurious lawsuits but the civil

protection thus afforded the public will be well worth

this minimal risk.

The Constitution was highly praised for the participative

process involved in its drafting, its enshrinement of human rights,

and its significant advances in political reform. It was viewed as

successful in fostering democratic development and increasingpolitical stability. Its measures to politically empower and protect

citizens were also praised.

The January 2001 House elections, the first House elections

contested under the 1997 Constitution, were called the most open,

corruption-free election in Thai history.[5] Political parties were

effectively strengthened, and the effective number of parties in the

legislature fell.

However, most criticism was based on the perspective that

the Constitution was too effective in some of its reforms. One of

the members of the Drafting Committee, Amorn Chantarasomboon,

claimed that an overly strong and stable government brought on a

tyranny of the majority and a parliamentary dictatorship.[41]

Following House elections in April 2006, the ElectionCommissioners were jailed and the election results overturned by

the Constitunal Court.

The constitution was also criticized for the lack of clarity

with which it defines the Kings role in politics (see Royal powers

and 2006 demand for royal intervention). The Senates role in

scrutinizing Constitutional Court appointments came under much

criticism (see Appointment of the first Constitutional Court).

Although the Senate was supposed to be non-partisan, block-voting

became common.[42][43] A constitutional crisis almost occurred


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[37]



following April 2006 House elections (see April 2006 House election

results). Governments were criticized for politicizing appointments

to independent agencies.

On the evening of 19 September 2006, less than a month

before scheduled nation-wide House elections, the Thai military

led a coup against the government of Thaksin Shinawatra. The

military junta abrogated the 1997 Constitution, suspended the

Parliament, banned demonstrations and political activities, censored

the media, and dissolved the Constitutional Court, National Human

Rights Commission and other agencies created by the 1997

Constitution. For the first weeks, the junta ruled by decree. As a

result, International condemnation and several local protests againstthe coup were conducted, despite the juntas ban. In subsequent

weeks, condemnation of the coup transformed into criticism of the

junta-appointed government of General Surayud Chulanont and the

constitution drafting process.

2006 Interim Constitution of Thailand: One or more Steps Back

for Human Right Development in Thailand

The 2006 Interim Charter of Thailand was drafted by the

Council for Democratic Reform (CDR) after it seized power from

the government of Thaksin Shinawatra in the 2006 Thailand coup.

Released on 27 September 2006 and promulgated on 1 October

2006, the Constitution allowed the junta to retain significant control

over the appointed civilian government and the drafting of a

permanent constitution. The CDR would be transformed into apermanent Council for National Security (CNS) and would appoint

the head of the executive branch, the entire legislature, and the

drafters of a permanent constitution.

The Constitution made no mention of succession, instead

leaving it to constitutional practice. The draft came under strong

public criticism as being a step backwards from the . The charter

did not repeal junta bans restricting freedom of speech, assembly,

and political activity. Although it was originally called a charter,

it was officially named a constitution


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The junta appointed a legal panel to draft an interim charter

(later officially called a constitution). The team was led by former

Senate speaker Meechai Ruchuphan, and originally included jurists

Borwornsak Uwanno and Wissanu Krea-ngam. Both had played

key roles in drafting the 1997 Constitution and had served under

the deposed government, although they had resigned several months

before the coup. Both resigned from the panel after public criticism

that they were members of the ancien rgime. Thammasat University

vice-rector Prinya Thewanaruemitkul harshly criticized the two,

saying that they were not honourable enough to look after the

democratic system. Both refused to play any further role with the

military junta.

The draft interim charter had 39 articles. Structurally, the

draft interim charter was similar to the 1991 Constitution, the 1976

Constitution, and the 1959 Charter, in that it stipulated an extremely

powerful executive branch which would appoint the entire

legislature. Interesting articles of the charter to be noted are as

follows:

prescribes for the constitutional monarchy and the

Kingdom of Thailand as the singular state (Art. 1)

guarantees basic rights, human dignity and equality

under the law in accordance with the democratic rule

under the king as head of state and international

obligations (Art. 3)

outlines the formation and duties of the National

Legislative Assembly, which will comprise 250 membersappointed from professional groups, geographical areas

and various sectors of society (Art. 5)

allows the National Legislative Assembly to request the

Cabinet to give statements of fact or explain problems,

but explicitely states that it may not make a vote of

confidence or no confidence against the Cabinet (Art.

11)

grants immunity for remarks made on the floor (Art.13)

allows the Chairman of the Council for National Security

(the junta) to remove the Prime Minister (Art. 14)


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[39]



guarantees the independence of the judiciary (Art. 18)

spells out a process for drafting a permanent constitution.

This includes the prohibitation of the 100 members of

the Constitution Drafting Council from being current

members of a political party or being members of a

political party for the previous 2 years (Art. 19)

empowers the Legislative Assembly speaker to chair the

National Assembly (Art. 20)

spells out the peer-vote of a 2,000 member National

Assembly to elect 200 candidates for the Constitutional

Drafting Council. Each member can vote for no more

than three members, those nominated with the most votes

will win. In the case of tied votes, which result in morethan 200 winners, the winners will be decided by

drawing lots. The peer-vote must complete in seven days

(Art. 22)

empowers the Council of National Security to pick 100

of 200 CDC candidates for royal approval (Art. 22)

empowers the Council of National Security to appoint a

100 member CDC if the National Assembly fails to

complete its selection within 7 days (Art. 23)

Future Trends: From Human Rights to Right to Self-

determination of People in Thailand

Members of the Human Rights Comission will be expected

to have domestic laws in place to protect and uphold fundamental

human rights, in accordance with international treaties. These mustinclude constitutional provisions not only on some basic human

rights issues in previous charters and constitution but this

Commission should in turn play the role for initiating right to self-

determination of the people in this nationor equivalentwhich

are enforceable through legal actions by an ordinary person.

National candidacy to the council must also be contingent

upon it introducing a procedure through which appeals on the

grounds of fundamental human rights and constitutional rights may

be laid before the higher courts.


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That people in Thailand be given a right of redress emanating

directly from the constitution is an exceptionally important condition

for Thailands acceptance into the Human Rights Commission. In

recent weeks, the role of its courts has been spotlighted by a

constitutional crisis caused by an unprecedented political impasse,

itself provoked by a popular movement against the dominant

political party. This situation has caused much greater awareness

among the general public that the judiciary is by far the weakest leg

of the Thai state. It is also a leg that is disinclined to stand on its

own. Ultimately, this is a problem that returns to all of the conditions

for Thailands acceptance to the Human Rights Council. Effective

laws to eliminate torture and other gross human rights abuses,

effective implementation of UN recommendations, guarantees ofaccess to UN officials, and enforcement of constitutional rights all

depend upon a strong judiciary which is worthy of public respect

and willing to exercise its authority where and as necessary. In the

end it is this principle of a powerful and independent judiciary to

which Thailand must subscribe if it is to deserve its place on the

Human Rights Commission. And for that reason, its candidature is

most timely and should be the cause of lively discussion both in the

UN system and in Thailand itself.

The Asian Human Rights Commission urges the UN General

Assembly to make Thailands candidature to the Human Rights

Commision contingent upon these four conditions. It urges key

agencies for the protection of human rights in Thailandespecially

the National Human Rights Commission of Thailand, Lawyers

Council of Thailand, concerned politicians and members of thejudiciaryto enter into vigorous debate on the countrys human

rights record and its proposed candidacy. Let this be an opportunity

for open and frank discussion on the serious obstacles to the realising

of human rights in Thailand at a critical time in its history.

The AHRC sincerely hopes that the Human Rights Council

will be a success and that it will augur in a new era of respect for,

and protection of, human rights. The council faces many obstacles

before this becomes a reality, and the election of members who


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[41]



have demonstratednot merely pledged themselvesa genuine

commitment to human rights is of the utmost importance.

Epilogue

It can be summed up that Thai national constitutional

development has played vital role in shaping human right

development of the country. How a country which never creates

any majority-minority ethnic sentiment in all 17charters and

constitutions and it may include the 18th permanent constitution

handle its people right to self-determination, especially for those

who might or may see things differently form the mainstream

conventional paradigm of citizenship


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[43]

Introduction

In the Southeast Asian region, self-determination or identity

conflicts continue to develop and are actively being pursued by

local and international actors towards the path of conflict resolution

and peacebuilding. Among these are the cases of Pattani (Thailand)

Mindanao (Philippines), and Aceh (Indonesia). In Aceh, the

international community and the Acehnese people bear witness to

the signing of the Memorandum of Understanding (MoU) in August

15, 2005 between the Government of Indonesia (GoI) and the Free

Aceh Movement (GAM). This successful peace negotiation was

mediated by the Crisis Management Institute (CMI) in Helsinki,

Finland led by former Finnish President Maarthi Ahtissari. Underthis Helsinki MoU, GAM accepted that the Province of Aceh

remains within the unitary state of Indonesia but with the condition

of achieving self-governance as a form of its self-determination

aspirations. This paper shall explore the developments of the

implementation of the peace agreement in Aceh. It will however,

first look at the background of the Aceh conflict and the struggle

for self determination in Aceh history. It will then discuss the new

political arrangements between the GoI and the new Aceh

government, and the postconflict developments and the dividends

of peace that the Acehnese people currently experience.

*Research and Education for Peace, Universiti Sains Malaysia

(REPUSM); Email: [email protected]. URL: www.seacsn.net

The Struggle for Self-determination in Aceh

Ayesah Abubakar & Kamarulzaman Askandar*


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Background to the Aceh Conflict and the Struggle for Self

Determination1

A brief exploration on Acehs history explains the mix of

factors that led Aceh into a war of national liberation that became

the struggle for self determination of the Acehnese people. Islam

has also always featured prominently in the history of this struggle.

According to historians, Islam first entered the Indonesian

archipelago, and possibly all of Southeast Asia, through Aceh

sometime around the year 700. The first Islamic kingdom, Perlak,

was established in the year 804. Much later, in the sixteenth and

seventeenth centuries, the port of Aceh became entangled, along

with the rest of what is now Indonesia, in European colonial powerscompetition for worldwide political and economic dominance.

Interested parties included the Portuguese, Spanish, Dutch, and

British. For many centuries Aceh was a very distinct and influential

political entity. The Sultan of Aceh and the Sultan of Malacca, were

major controllers of trade through the Straits of Malacca. One of

the most significant events in Acehs history came in 1824 with the

signing of the London Treaty often referred to as the Anglo-Dutch

treaty in which the Dutch gained control of all British possessions

on the island of Sumatra including Aceh. Yet the Dutch colonialists

failed to fully capture Aceh. Only after all the neighboring territory

was conquered did they mount a final campaign to subdue Aceh.

That war took them 35 years. The next major agreement was the

Linggarjati Agreement mediated by Britain and signed by Indonesia

and the Netherlands in March 1947. In this agreement, the Dutch

recognized Indonesian sovereignty over the islands of Java, Sumatra,and Madura. Perhaps the most critical event in explaining the attitude

of many Acehnese is the signing of the 1949 Round Table

Conference Agreements. Brokered under the auspices of the United

Nations, the agreements provided for a transfer of sovereignty

between the territory of the Dutch East Indies and fully independent

Indonesia. The Kingdom of Aceh was included in the agreements

despite not having been formally incorporated into Dutch colonial

possession. Subsequently the Indonesian government used armed

troops to annex Aceh. Since the annexation, the Acehnese have

continued to resent what they consider as foreign occupation and


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[45]The Struggle for Self-determination in Aceh

the struggle for self determination in Aceh has gone through several

phases. It is important to look at these phases to truly understand

the progression for self determination in Aceh, and how it has

fluctuated between outright calls for independence and preserving

the existing arrangements albeit with modifications.

First phase. The precursor to Acehs independence

movement began in 1953 when Indonesia experienced theDarul

Islam rebellion, in which rebels on the major Indonesian island of

Java tried to establish an Islamic state, supported by Muslim leaders

in Aceh who had the same aspirations.. Many Acehnese leaders

who had earlier participated so enthusiastically to gain independence

for Indonesia from the Dutch during 1945-49 became verydisappointed with the position of Aceh after independence. This

was basically for two reasons. Firstly, because it became clear that

the new republic would be ruled on the basis of the philosophy of

Pancasila rather than Islam, and secondly because of the fusion of

Aceh into the province of North Sumatra in 1950. Therefore, in

1953, many of the ulama and other leaders who had led the Acehnese

during the 1945-49 periods led their followers into theDarul Islam

(Abode of Islam) revolt. This revolution was aimed at establishing

Aceh as an autonomous region within an Islamic Indonesia. They

were quite explicit about these aims, declaring themselves part of

the Negara Islam Indonesia (Indonesian Islamic State) earlier

declared by Kartosuwirjo, anotherDarul Islam leaderinWest Java.2

This revolt continues to be important simply because the response

of the Indonesian government since then has mostly been to address

the demands of this revolt that is autonomy and the power toimplement aspects of Syariah or Islamic law. For example, in 1959,

the Indonesian government responded by giving Aceh the status of

a special territory which ostensibly confers some degree of

autonomy in religious, educational, and cultural matters.

Second phase. Despite this status, in 1976Aceh Merdeka

(Free Aceh) was founded as an armed resistance group. This

movement was formed by Hasan di Tiro, an Acehnese businessman

and intellectual who had previously been an overseas representative

of theDarul Islam movement. He was also a descendant of one of


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the chiefulama leaders of the war against the Dutch. The demand

of Aceh Merdeka was complete independence of Aceh, having seen

how the previous demands made under the Darul Islam period had

not been benefitted the Acehnese people. The group that started

this movement was small, probably involving no more than two

hundred active members moving around in the mountains of Aceh.

It has however, support from a wider base, including villagers in

the various provinces. It had few weapons and the authorities were

able to suppress it quickly. In the late 1970s, Indonesian authorities

conducted mass arrests ofAceh Merdeka members and shut down

their activities until 1989. In that year, a group now also calling

itself the Aceh-Sumatra National Liberation Front (ASNLF) came

out of hibernation and vigorously renewed its quest forindependence, often through attacks on police and military

installations. This prompted the Indonesian military to strike back

hard against the insurgents. In 1989, Indonesia designated Aceh a

military operations area or DOM (Daerah Operasi Militer) giving

the army a free rein to crush the separatists. In what became known

as the DOM period, the Indonesian military resorted to all the

tactics of a dirty counter-insurgency war. Torture, disappearances,

rape, the deliberate display of corpses and many other techniques

became common. Passive sympathizers as well as active supporters

of GAM were affected, and many ordinary villagers also became

victims. Amnesty International reported that between 1989 and 1992

about 2,000 peoplewere killed in military operations in Aceh.3 In

all about 12,000 people, mostly civilians, have either been killed or

lost since fighting began. Although the military at times succeeded

in suppressing the movement, they also ended up creating greaterresentment in Acehnese society. This always led to a general

escalation of the conflict situation.

If we look at the progress of the conflict in Aceh, it can be

concluded then that the conflict has escalated in two ways over the

years. First of all, the attitudes of the Acehnese have been hardened.

In the beginning, the chief demand was for autonomy and the

implantation of the Syariah law. This later on become a demand for

independence, spearheaded by the GAM. Secondly, we see an

escalation in terms of popular support. This is especially so in the


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second phase of the conflict, the GAM period. The movement started

out small with not much support in 1976, but by 1999, partly in

response to the very policies that had been used to suppress the

movement, it had become much larger. Disillusionment with Jakarta

has enhanced this feeling and contributed too to the emergence of a

nationalist sentiment.

After the resignation of President Suharto in May 1998,

Acehs independence movement experienced a major revival. The

situation is now open enough to express unhappiness with the way

Jakarta has been handling the Aceh conflict over the years.

Revelations of past human rights abuses especially those done during

the DOM period fuelled the demands for independence. This contextsaw the rise of a new peaceful referendum movement, which

mobilized huge crowds throughout Aceh in November 1999. It also

saw the resurrection of GAM, especially in rural Aceh. This new

situation confronted the Indonesian government with major

challenges. Successive governments responded with a mixture of

concession and repression. This is the time that the government of

Abdurrahman Wahid initiated a process of dialogue with GAM at

the end of 1999, a process which persisted fitfully until mid-2003.

On the other hand, military hard-liners favoured a repressive

response. From late 1998, there were instances of severe repression

against civilians. The Henri Dunant Center for Humanitarian

Dialogue (HDC) was invited to act as afacilitatorin this dialogue.

The HDC was able to persuade the Indonesian government and

GAM to sign on December 9, 2002 the Cessation of Hostilities

Agreement (CoHA) which was then seen as an accord that couldpossibly end 26 years of rebellion. This agreement contained several

important points, among others, the cessation of all violent actions

and hostilities, establishment of a Joint Security Committee (JSC),

the development of peace zones in the area, the implementation of

an All Inclusive Dialogue (AID), and conducting the 2004 general

election for democratic governance in Aceh.

Compared to previous agreements, this December 9, 2002

one has larger expectations for developing peace in Aceh. This was

because of three things, namely:


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1. There are active international involvements from the

initiation to the implementation processes.

2. There is a sanctioning mechanism for violation of the

agreement.

3. There are reasonable stages for conflict resolution

embedded within the agreement. The process begins with

trust building, developing peace zones, demilitarisation,

and continued with involving the civil society in

formulating a political settlement. It ends with

establishing a democratic government by general

election.

With these advantages, this agreement becomes a promisingmilestone toward sustainable peace in Aceh. It became possible

when both sides agreed to compromise on key strategic goals. On

the part of GAM, the demand for full independence was put aside

for the time. The Indonesian government, on the other hand, agreed

to foreign monitors, mostly military officials from Thailand and

Philippines to supervise the ceasefire and the disarming of the GAM.

This is a positive development because the Indonesian government

has consistently refused to internationalize the conflict in Aceh.

The central government also passed special autonomy legislation

which gave the Acehnese a larger share of natural resource revenues,

the right to implement aspects of Islamic law, plus other concessions.

Nevertheless the peace process suffered some setbacks after

sporadic acts of ceasefire violations done by both sides despite the

presence of the HDC, the international monitors, and the newlycreated Joint Security Council (JSC). These violations reflected the

need for more continuous conflict prevention and peace-building

efforts as well as independent monitoring activities by international

organizations especially the UN. Things got from bad to worse from

here. Abdurrahman Wahid was removed as president and replaced

by Megawati Sukarnoputri. Despite promising that she would

resolve the Acehnese conflict and not allowing a single drop of

Acehnese blood to spill, the conflict continues to rage on. Megawati

was in fact weak and was in a position where she was forced to


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appease the powerful armed forces in order to gain their support in

parliament.

Third phase. In May 2003, Martial Law was implemented

again in Aceh which effectively killed off any advances made in

the peacebuilding efforts of the previous years. The GAM

negotiators were arrested on their way to Tokyo for negotiations

and more than 30,000 troops were sent to suppress the separatists

within a span of a few days in May 2003. However, martial law

was removed after a year, replaced with a civil emergency, but

without any major improvement on the ground. This emergency

status was also removed in May 2005, but again with no

improvement in the situation in Aceh. The current president, SusiloBambang Yudhoyono, promised during the run up to the presidential

election that he will end the Acehnese conflict within three years of

taking power.

At the end of 2004, Aceh was once again hit with a major

calamity, this time a natural one. The tsunami of December 26,

2004 resulted in the death of more than 150,000 Acehnese with

tens of thousands more missing. It brought the attention of the world

to Aceh and ignited again the sparks for peace between the warring

parties, this time pushed by humanitarian concerns and the need to

set aside the confrontations and help the victims. Both armed parties

quickly call for ceasefire in the area and there were positive feelers

from both sides resulting in meetings in Helsinki, Finland, facilitated

by the Crisis Management Initiative (CMI) foundation, an

organization led by former Finnish president Maarti Ahtisaari. Aftera slow start, the talk then progressed well. There were several rounds

of talks in Helsinki: the first on 28 29 January, 2005, the second

21 23 February, 2005, the third between 12 16 April, 2005, the

fourth 26 31 May, 2005, and the fifth 12 17 July, 2005. In the

beginning, the government said that it is offering special autonomy

status and amnesty for GAM separatists, but has stated that it would

reject any demand for Acehs sovereignty.4 However, by the third

round, the process is well on the way. Negotiators from both sides

have been able to push aside hard-line positions, and to explore

new solutions.


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The process took a turn for the positive in the fifth round

when it was agreed that an agreement will be signed on August 15,

2005. This Memorandum of Understanding (MoU) was made

possible by a few factors the first being the realization that both

sides need to put aside their differences to rebuild, reconstruct, and

rehabilitate Aceh after the devastating tsunami. This was the premise

of the whole peace process. This also helped the sides overcome

any major hurdles and barriers in reaching an agreement. Provisions

were made for the decommissioning of the troops the pullout of

non-organic Indonesian forces, numbering about 23,000 soldiers,

amnesty for GAM soldiers who can now go back to their old lives,

and the surrender and destruction of GAM weapons. What was more

difficult was the question of GAMs role in the post-conflictsituation. At the outset, GAM agreed not to continue pushing for

independence, albeit putting a condition that it and any other

Acehnese groups wishing to do so can be allowed to set up local

political parties as vehicles to run in local elections. The

breakthrough came when the Indonesian government side agreed

to this request, although it did come across initial oppositions from

its own parliamentarians and other political parties in the country.

Indonesian law also stipulated that only nationwide Jakarta-based

parties are allowed, making it difficult for local parties from Aceh

to participate in purely local politics. This was remedied by simply

pushing through the agreement with an understanding that a solution

for this will be found later, possibly through the amendment of the

special autonomy law for Aceh allowing local political parties to

be created only in Aceh. Provisions were also made for the

Documents

International Experiences of Self-Determination