UNDP Access to Justice in Aceh

M a k i n g t h e Tr a n s i t i o n t o S u s t a i n ab l e Pe a c e a n d D e ve l o p m e n t i n A c e h

Access to Justice in Aceh

M a k i n g t h e Tr a n s i t i o n t o S u s t a i n a b l e P e a c e a n d D e v e l o p m e n t i n A c e h

Access to Justice in Aceh

Foreword

Access to justice is increasingly recognised as a necessary condition for peace and development,especially in poor and post-conflict settings. Access to justice consolidates peace by creatingthe conditions that permit people to resolve legitimate grievances, which might otherwise leadto social conflict, in an effective and expedient manner based on legal certainty. Access tojustice also contributes to sustainable human development by defining a minimum scope oflegitimate claims based on human rights, while seeking to enhance claim-holders’ ability toreclaim these rights and holding duty-bearers accountable in protecting these rights.

The correlation between access to justice and peace and development provides the rationalefor this access to justice assessment undertaken by UNDP between January and April 2006 inIndonesia’s western-most province of Nanggroe Aceh Darussalam (Aceh). The assessmentwas conducted in partnership with the Badan Rehabilitasi dan Rekonstruksi (BRR; Agency forRehabilitation and Reconstruction), Badan Perencanaan dan Pembangunan Nasional (BAPPENAS;National Planning and Development Agency), Syiah Kuala University (UNSYIAH), IAIN Ar-Raniry, the International Development Law Organization (IDLO) and the World Bank.

While UNDP has simultaneously undertaken another five access to justice assessments acrossthe archipelago (in Maluku, North Maluku, Central Sulawesi, Southeast Sulawesi and WestKalimantan), this assessment is particularly crucial as Aceh emerges from the devastating dualruin brought about by the tsunami of the 26th of December 2004, as well as over three decadesof civil war. The Government of Indonesia and UNDP expect that, if sound progress can bemade in strengthening citizens’ access to justice and the justice system at large, then sustainablepeace and development can be achieved in Aceh.

On behalf of UNDP, I thank the Government of Indonesia for inviting UNDP to engage inthe justice sector. UNDP is a lead organisation for institutional capacity development and isthe primary UN Programme providing support and assistance to member governments in theRule of Law and Access to Justice Sectors worldwide. UNDP is currently implementing over20 Access to Justice Projects in conflict and post-conflict settings in Asia and the Pacific alone.Additionally, UNDP Country Offices that are implementing access to justice programmes haveestablished an internal Rights and Justice Network to share information and lessons learned.

I would like to extend my gratitude to every individual and organization that was involvedin this assessment. Our responsibility now is to take action and address the challengesidentified in order to strengthen peace and development for the people of Aceh.

Bo Asplund

Resident RepresentativeUNDP Indonesia

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Foreword

Acknowledgements

This work has been made possible by the support and assistance of many different people.Much of the information herein is based on primary interviews and focus group discussionsconducted in the municipalities and districts of Banda Aceh, Lhokseumawe, Aceh Utara, AcehTengah, Aceh Barat, and Pidie in the Province of Nanggroe Aceh Darussalam. Hundreds ofcommunity respondents gave their time to the assessment and placed their trust in researchteam members by disclosing often painful and traumatic histories. The Government of Indonesiaalso offered tremendous support and co-operation in Aceh. Many provincial and districtgovernment officials took time to talk with the research team and provided valuable inputs tothe assessment.

Professor Richard Chauvel (Victoria University, Australia), Cathy McWilliam and Dr. ArskalSalim (IDLO), Matthew Stephens and Phillippa Venning (World Bank), Cate Sumner andStewart Fenwick (IALDF), Edoardo Gonzalez (ICTJ), Toshi Nakamura (UNDP), Guy Janssen(AIPRD) and others provided invaluable comments on drafts of the paper or contributionsto the report at various stages. The team extends its gratitude to those mentioned above andto the hundreds of people in Aceh who gave their time and trust to team members in participatingwith this assessment.

This study was made possible through financial support from the UNDP Aceh and NiasEmergency Response and Transitional Recovery (ERTR) Programme. The views expressedherein are those of the authors and do not necessarily represent those of the United Nations,UNDP, or any of the partner organizations to this assessment. It is our genuine hope that thefindings and recommendations may make a small yet tangible contribution to post-tsunamireconstruction and post-conflict peace-building efforts by strengthening the rule of law andincreasing community access to justice.

Assessment Team Members

Assessment Coordinator : Team Leader :Neven Knezevic Saifuddin Bantasyam

Technical Consultant : Field Researchers :Nesya Hughes Ernita Dewi

Neni IndriatiJuliani Jacob

Programme Manager (Jakarta) : MuazzinEwa Wojkowska Nyak Anwar

F. Asisi S. Widanto

Administrative Assistant :Halasan Panggabean

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Acknowledgements

Foreword 03

Acknowledgements 04

Table of Contents 05

Table of Figures 07

Executive Summary 11

Glossary 17

Chapter 1 - Introduction 21

1.1 Access to Justice in Aceh 23

1.2 Prior Needs Assessments 25

1.3 Rationale and Aims of the Assessment 25

1.4 The Access to Justice Framework 26

Chapter 2 - Background 29

2.1 History 31

2.2 The Tsunami and the Memorandum of Understanding 33

2.3 Major Grievances Identified during the Assessment 34

Chapter 3 - Normative Legal Framework 39

3.1 National State Law 42

3.1.1 Law on Governing Aceh 43

3.2 Syariah Law 46

3.3 Adat 49

3.4 Oversight and Monitoring 51

3.4.1 Corruption Eradication Commission 52

3.4.2 Ombudsman’s Commission 53

Chapter 4 - Legal Awareness of Justice Systems 55

4.1 Legal Awareness and the General Justice System 58

4.2 Legal Awareness and the Syariah Justice System 61

4.3 Legal Awareness and Adat 62

4.4 Civil Society Organisations and Legal Awareness Raising 63

Chapter 5 - Access to Appropriate Forums 67

5.1 Social Factors 70

5.2 Political Factors 72

5.3 Economic Factors 75

5.4 Institutional Factors 77

5.5 Why No Action is Taken 79

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Table of Contents

Chapter 6 - Handling of Grievances by Selected Forum 81

6.1 General Justice System 84

6.2 Human Rights Court and Truth and Reconciliation Commission 88

6.3 Syariah Justice System 91

6.4 Adat 95

6.5 Oversight and Monitoring of Grievance Handling 101

Chapter 7 - Satisfactory Remedies Obtained 103

7.1 General Justice System 106

7.2 Syariah Justice System 107

7.3 Adat Justice System 110

Chapter 8 - Recommendations 113

8.1 To National and Provincial Governments 116

8.2 To Donors 119

8.3 To Civil Society 120

Appendix 1 - Justice Issues Identified by Village 121

Appendix 2 - Profiles of Village Research Sites 143

Appendix 3 - Matrix: Institutional Obstacles for Duty-Bearers 161

Appendix 4 - A Discussion of Horizontal and Vertical Conflicts 173

Appendix 5 - Methodology, Research and Site Selection 175

Bibliography 181

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Tables

TABLE 1: DAMAGE ESTIMATES FOR RULE OF LAW INSTITUTIONS 34

TABLE 2: KEY FINDINGS “NORMATIVE LEGAL FRAMEWORK” 41

TABLE 3: KEY FINDINGS “LEGAL AWARENESS” 57

TABLE 4: KEY FINDINGS “ACCESS TO APPROPRIATE FORUM” 69

TABLE 5: KEY FINDINGS “HANDLING OF GRIEVANCES” 83

TABLE 6: EXAMPLES OF EFFECTIVENESS OF ADAT IN HANDLING GRIEVANCES 98

TABLE 7: KEY FINDINGS “REMEDIES OBTAINED AND SANCTIONS ENFORCED” 105

TABLE 8: TA’ZIR PUNISHMENTS AS STIPULATED IN QANUN 108

JUSTICE ISSUES IDENTIFIED BY VILLAGE

TABLE 9: VILLAGE TA5 123








TABLE 17: VILLAGE CA5 132









TABLE 26: VILLAGE C1 142

CAPACITY WEAKNESSES UNDERMINING ACCESS TO JUSTICE

TABLE 27: ADAT 163

TABLE 28: JUSTICE AUXILIARIES 164

TABLE 29: POLICE 165

TABLE 30: GENERAL COURTS 166

TABLE 31: SYARIAH COURTS 167

TABLE 32: PROSECUTORS 168

TABLE 33: WILAYATUL HISBAH 169

TABLE 34: PRISONS 170

TABLE 35: INTERVIEWS CONDUCTED 180

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Table of Figures

Boxes

BOX 1: ACCESS TO JUSTICE FRAMEWORK 26

BOX 2: LANDLESSNESS: DISADVANTAGING THE DISADVANTAGED 36

BOX 3: CORRUPTION AND MISHANDLING OF GOVERNMENT ASSISSTANCE 37

BOX 4: HUMAN RIGHTS COMPENSATION CLAIMS 37

BOX 5: CASE HANDLING-SYARIAH COURT 38

BOX 6: NORMATIVE LEGAL FRAMEWORKS FOUND IN ACEH 42

BOX 7: STRUCTURE OF THE INDONESIAN JUDICIARY 43

BOX 8: INTER-VILLAGE DISPUTE RESOLUTION - THE ROLE OF THE IMAM MUKIM 52

BOX 9: COMMUNITY LEGAL AWARENESS 58

BOX 10: ORGANIZATIONS ACTIVE IN RAISING AWARENESS OF SYARIAH 65

BOX 11: ESCALATING CONFLICT 71

BOX 12: A PRIVATE MATTER 72

BOX 13: THE SUGAR FIELDS 73

BOX 14: FEAR 74

BOX 15: ELITE CAPTURE AND COMMUNITY GRIEVANCE 77

BOX 16: COLLUSION 77

BOX 17: ATTITUDINAL OBSTACLES INFLUENCING CHOICE OF JUSTICE FORUM 79

BOX 18: IMPROVED HUMAN RIGHTS POLICING 85

BOX 19: BURYING THE PAST OR SEEKING CLOSURE ? INONG BALEE 90

BOX 20: WILAYATUL HISBAH: COMMUNITY RESPONSE TO MORAL POLICING 91

BOX 21: VOICES OF THE POWERLESS: WILAYATUL HISBAH ABUSES OF POWER 92

BOX 22: MORAL OFFENCES PUNISHABLE UNDER QANUN 93

BOX 23: TUHA PEUT 97

BOX 24: IMPACT OF CONFLICT AND THE TSUNAMI ON ACCESS TO JUSTICE 102

BOX 25: DISPROPORTIONATE PUNISHMENTS 106

BOX 26: THE APPRORIATENESS AND EFFECTIVENESS OF CANING AS

A PUNISHMENT 109

BOX 27: ADAT JUSTICE : ENSURING SOCIAL HARMONY 111

BOX 28: DISCRIMINATION AND EXTORTION OF MINORITIES 112

BOX 29: EFFECTS OF CONFLICT ON VILLAGE CA2 150

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Access to Jus t ice in Aceh - Making the Trans i t ion to Susta inable Peace and Deve lopment in Aceh

Nanggroe Aceh Darussalam (NAD) Province

KotaBanda Aceh

KabupatenAceh Besar

KabupatenAceh Jaya

Nagan Raya

NORTH

SUMATRA

NAD ProvinceI N D O N E S I A

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Map

Kabupaten PidieKabupatenBireun Kabupaten

Aceh Utara

KabupatenAceh Tengah

KabupatenGayo Lues

KabupatenAceh Timur

KabupatenAceh

Tamiang

KabupatenAcehTenggara

Aceh Barat Daya

KabupatenAcehSingkil

KabupatenAcehSelatan

SIMEULUE

KabupatenAceh Barat


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Access to justice is increasingly recognised as a necessary pre-condition for peace anddevelopment, especially in poor and post-conflict settings. By ‘access to justice’, UNDP means“the ability of people, particularly from poor and disadvantaged groups, to seek and obtain aremedy through formal and informal justice systems, in accordance with human rights principlesand standards”. To support the post-tsunami and post-conflict recovery in Aceh, an assessmenthas been undertaken to understand citizens’ access to justice in Aceh. The key findings of theassessment are as follows:

Types of Grievances

Acehnese face a variety of justice grievances, particularly due to the tsunami and conflict.Grievances include but are not limited to: economic grievances (including lost or destroyedproperty, land claims, inheritance disputes, unequal aid distribution, and lack of assistance fororphans and widows), violence against women, conflict-related human rights violations(including, but not limited to, intimidation, beating, torture, disappearances, summary executions),and displacement.

Normative Legal Framework

The normative legal framework in Aceh is pluralist, includes both formal and informal justicesystems and includes the recently promulgated Law on Governing Aceh. The formal systemsinclude what the assessment refers to as the General justice system (informed by National Law,which in turn has incorporated provisions of International Human Rights Law) and the Syariahjustice system (informed by Islamic legal principles). The informal justice system includes theadat system (informed by fluid and evolving customary values). These justice systems aresimultaneously functioning and sometimes overlapping. The result is competing sets of lawsand procedures that, while giving claim-holders some degree of choice, in many instances serveto obstruct claim-holders’ access to justice and impede effective handling of grievances byduty-bearers. Meanwhile, oversight mechanisms and processes with which to review competingnormative legal frameworks and harmonise the pluralist justice system are weak or lacking inAceh.

Legal Awareness

Levels of legal awareness relating to rights, duties and procedures within the formal andinformal justice systems remain low among Acehnese. Villagers do not have information onlaws that are relevant to them, nor processes to access the General and Syariah justice systemsand are largely unaware of the limited existing legal aid services. For a variety of reasons,knowledge of the adat system is marginally better.

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ExecutiveSummaryExecutive Summary


Meanwhile, the ability of duty-bearers and civil society groups to undertake legal awarenessraising activities is weak. Legal awareness raising is hindered by lack of capacity, resources andcommitment. Of the three justice systems, more activities have been undertaken to raiseawareness of Syariah Law. However, these activities have focused on citizens’ obligations, ratherthan rights and how to access justice through this channel.

Access to Appropriate Forum

Social, political, economic and institutional factors influence citizens’ choice of justice forumwhen seeking to resolve a grievance. Overall, cultural beliefs that ‘local problems should bekept local’, continued mistrust towards the state apparatus due to three decades of civil war,the high financial cost of approaching formal institutions and the bureaucratic and labyrinthinenature of the formal system have combined to discourage or, in some cases, altogether preventAcehnese from employing this system to address grievances.

The adat justice system is more comprehensible and accessible than the formal justicesystem. However, it too is not free of deficiencies. Disadvantaged groups, in particular, facechallenges in accessing informal justice mechanisms due to a lack of neutrality, unclear standardsand guidelines, as well as a lack of capacity on the part of informal justice duty-bearers.

There are also numerous cases in which community members simply take no action to resolvetheir justice grievances. In most of these cases, citizens stated that it was because they did notthink that either the formal or informal justice system could or would assist them. A significantnumber of victims of conflict-related human rights violations never took any action to tryto have the injustices committed against them redressed because of a lack of confidence inthe system. This lack of confidence is due to a perceived culture of impunity for humanrights violators. Tsunami victims are also increasingly not taking action to redress theirgrievances because of a growing despondency with the slow pace of recovery progress.

Handling of Grievances

There are a range of challenges that constrain the ability of formal and informal justiceproviders to handle citizens’ grievances effectively. Within the formal justice system, humanresource skills vary greatly among justice providers and there is a shortage of trainings providedfor police, prosecutors and judges. Information management systems among formal justiceinstitutions are severely deficient and there is a dearth of legal information available to legalpractitioners. This has been exacerbated by the destruction caused by the tsunami. Furthermore,communication and the interface between institutions within the formal justice ‘chain’, namelybetween police, the prosecutors office, the courts and prisons, is weak. Meanwhile, insufficientbudget limits the capacity of formal justice providers to undertake their duties effectively andhandle grievances fairly and expeditiously. Among other things, courts are challenged in termsof understaffing, are impeded in undertaking substantive activities that involve additional costs(such as calling witnesses and undertaking field visits) and must work within damaged or poorinfrastructure. Additionally, with regards to the Syariah justice system specifically, while Syariah

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ExecutiveSummary


jurisdiction has been expanded since 2004, the provincial budget allocated to the administrationof Syariah has not increased, reducing its ability to deal with a growing caseload. The abilityof the formal justice system to handle grievances is also weak in districts undergoing administrativesub-divisioning (pemekaran).

A number of reasons contribute to diminish effective grievance handling by adat justiceproviders. First, in ethnically and politically divided villages, mistrust continues to exist betweencitizens and adat justice providers. Second, the conflict and tsunami have led to instances inwhich communities are dislocated from their adat leaders because of displacement or loss oflife. Third, the ability of adat justice providers to handle grievances is weak in villages withfeeble governance structures, such as no village office, poor record keeping, and weakadministrative skills of village leaders. Fourth, there is a lack of oversight mechanisms toprevent instances of corruption, collusion and nepotism. Fifth, adat emphasises social harmonyoften at the expense of individual rights and interests. Finally, adat justice providers often haveinsufficient knowledge of local government functions and procedures to ensure effectivehandling of grievances. These factors undermine the ability of the adat justice system to handlegrievances effectively.

Provision of Remedies

Remedies for grievances must be obtained and sanctions enforced in a satisfactory manner.‘Satisfactory’ means appropriate from a Constitutional Law and international legal perspective,as well as enforceable.

Acehnese expressed dissatisfaction with formal justice systems, which they perceive as oftenimposing sanctions that are disproportionate to crimes committed due to corruption andimpartiality among duty-bearers. Additionally, the formal justice systems have faced challengesin enforcing sanctions, particularly after the tsunami. Among other things, there is a seriousshortage of incarceration facilities, leading to treatment of prisoners in a manner that violatestheir rights.

Concerning Syariah, debate continues within Aceh as to whether caning is an appropriate formof sanction. Many consider caning a violation of international human rights law. Othersconsider it appropriate because, among other things, the punishment is expedient and involveslow financial costs. Meanwhile, there is increasing anger among Acehnese towards the actionsof the Wilayatul Hisbah (responsible for monitoring compliance with Syariah Law), who havebeen undertaking their functions in a manner that possibly violates Constitutional Law andhuman rights principles.

Sanctions imposed by adat decisions are not legally binding (although formal courts can considerthem) and the lack of enforcement mechanisms means that it is not uncommon for morepowerful figures and groups to ignore or manipulate decisions that are not in their favour. Atthe same time, however, adat remain strong because the majority of communities voluntarilysubmit to its customs.

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ExecutiveSummary


Key Recommendations

The assessment concluded that rapid and equitable responses from the justice sector – bothformal and informal – are necessary to facilitate successful reconstruction and reintegration.While the tsunami and conflict have wreaked enormous damage on the justice sector, withdisaster comes the opportunity to start afresh and build a coherent and trusted legal system.The assessment recognizes that an effective formal legal system is vital for that process butthat, at the same time, the majority of disputes will be resolved through informal village-levelinstitutions. Both mechanisms, therefore, require support. The assessment identifies thefollowing six areas as priorities for action:

1 . Community legal awareness:Without an understanding of their rights and how to enforce them, communitiescannot resolve the legal problems they have identified in this assessment as the mostcritical. Legal awareness programs must focus not only as they do now on obligations,but also on rights.

2. Community legal advisory/advocacy services:Disadvantaged groups who face economic or social hardship often need support toaccess their legal rights or defend their legal interests. Mechanisms to support CSOsestablish and maintain legal advisory and assistance posts in cities and more remoteparts of Aceh are essential if more vulnerable sections of the community are tohave full access to justice.

3. Strengthen the capacity of local level justice institutions:The majority of complaints are being handled by local level institutions, includingadat institutions, village heads and religious leaders. These mechanisms require capacitybuilding encompassing mediation skills, knowledge of the law (substantive law andprocesses) and gender awareness to deliver sustainable and equitable dispute resolution.

4. Support the formal justice sector:The courts, prosecutors and police were badly damaged by the tsunami, compoundingexisting weaknesses. The conflict has undermined public confidence in the legalinstitutions, reducing their capacity to respond to legal problems and supportaccountable government. While it is hoped that this assessment has identified asignificant portion of the needs, coordinated consultations with those stakeholderswho are mandated and able to respond to these needs must continue in order to(i) seek input on other needs and (ii) strategise on how these needs might best beaddressed.

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ExecutiveSummary


5. Resolve jurisdictional overlaps:The jurisdictional ambiguity between the General and Syariah Courts and adatinstitutions needs to be clarified. The jurisdiction of adat institutions in particularrequires regulation. All regulations passed in Aceh should be consistent with theIndonesian Constitution and human rights principles.1

6. Monitoring and oversight:National commissions charged with oversight of the judiciary, the prosecutors andthe police, as well as other government institutions responsible for public serviceprovision, should establish provincial offices in Aceh. Oversight and accountabilitymechanisms must also be established for adat institutions to ensure consistency withthe Indonesian Constitution and human rights principles.

1 As confir med in the Memorandum of Understanding (Hels inki Peace Accord) s igned between the Government of Indonesiaand the Gerakan Aceh Merdeka (GAM; Free Aceh Movement) on 15 August , 2005.

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A2J Access to Justice

Adat The Indonesian term for culturally and ethnically-specific forms of law (hukum adat)or custom (istiadat). It is the largely un-codified body of rules of behaviour,enforced by social sanctions. It consists of living norms, respected and recognisedby people, and acts as society’s code of conduct. It is also today a symbol of localautonomy.

ADR Alternative Dispute Resolution

AMM Aceh Monitoring Mission

APBD Anggaran Pendapatan dan Belanja Daerah (Regional Government Budget)

APBN Anggaran Pendapatan dan Belanja Negara (National Government Budget)

BAL The Basic Agrarian Law

Baitul Mal Regional government department for management of religious assets

BAPPEDA Badan Perencanaan Pembangunan Daerah (Regional Development Planning Board)

BAPPENAS Badan Perencanaan Pembangunan Nasional (National Planning and Development Agency)

BERANTAS Barisan Rakyat Anti-Separatis (People’s Bastion Against Separatism)

BPN Badan Pertanahan Nasional (National Land and Property Titles Office)

BPS Badan Pusat Statistik (Central Statistics Agency)

BRIMOB Brigade Mobil (Police Mobile Brigade)

BRR Badan Rehabilitasi dan Rekonstruksi (Tsunami Rehabilitation and Reconstruction Agency)

Camat Head of Kecamatan (subdistrict)

CBO Community Based Organisation; community group formed for mutual benefit or arounda common interest

CSO Civil Society Organisation; made up of disparate actors coming together in differentorganisations freely and formally associating in order to pursue non- profit purposes(religious bodies, recreational clubs, professional associations, unions, socialmovements etc.)

CoHA Cessation of Hostilities Agreement between the Government of the Republicof Indonesia and the GAM (Signed December 9, 2002)

Darul Islam Islamic movement from the 1950s seeking to transform Indonesia into an Islamic state

Dayah Derives from the Arab word sawiyah, meaning corner or small place for meditation.In Aceh, dayah refers to a place to learn religion. Dayah function as private non-formal religious educational institutions.

Dinas Syariat Islam Department of Syariah Islam; a governmental body established by Provincial Law 33 /2001 under the Office of the Governor of Aceh; responsible for the implementationof Syariah in Aceh, including drafting of Syariah laws, dissemination of Syariah informationand providing guidance to citizens on Syariah conduct. Led by urban based ulama.

DPD Dewan Perwakilan Daerah (House of Regional Representatives)

DPR Dewan Perwakilan Rakyat (National House of Representatives)

DPRA Dewan Perwakilan Rakyat Aceh (Aceh House of Representatives)

ERTR Emergency Response and Transitional Recovery Programme

GAM Gerakan Aceh Merdeka (Free Aceh Movement)

Gampong A village inhabited by a number of persons forming the lowest administrative unit withinthe Indonesian governance system. Each gampong consists of several sub-villages (dusun).

Glossary

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Glossary


HRC Human Rights Court

ICRC International Committee for the Red Cross

IDLO International Development Law Organisation

IDP Internally Displaced Person

Imam Mukim Head of Mukim

INGO International Non-governmental Organisation

Inong balee Widows of conflict (Acehnese term)

IOM International Organisation for Migration

Janda Female widow (by death, divorce or separation)

JKMA Jaringan Komunitas Masyarakat Adat (Indigenous People’s Network); Acehnese NGO

KAPOLDA Kepala Polisi Daerah (Chief of Provincial Police)

KAPOLRI Kepala Polisi Republik Indonesia (Chief of the National Police)

Keucik A person selected by the community and who is officially appointed by the ditrict/municipality government to lead the gampong administration.

KPK Komisi Pemberantasan Korupsi (Corruption Eradication Commission)

KPA Komite Peralihan Aceh (Aceh Transitional Committee); the post-peace agreementtransitional political body of the GAM

KUA Kantor Urusan Agama (Religious Affairs Office); primarily responsible for registeringmarriage and divorce between Muslims.

LAPAS Lembaga Pemasyarakatan (Penal Institutions)

LoGA Law on Governing Aceh

Madrasah A formal religious education institution under government supervision.

Majelis Hakim Panel of judges that form one bench in the courts

Meunasah Derives from the Arab word Madrasah, a place of learning or “small mosque”.Meunasah are found throughout Acehnese villages as places for learning religion or tostudy, places to perform religious observation or to resolve disputes arising withinthe community. In some places, the Meunasah has become a centre for villagesocio-cultural development.

MoU Memorandum of Understanding (Helsinki Peace Accord); signed between the GoIand the GAM on 15 August, 2005.

MPR Majelis Permusyawaratan Rakyat (People’s Consultative Assembly)

MPU Majelis Permusyawaratan Ulama (Religious Scholars or Ulamas’ Consultative Council);involved in drafting Qanun, established by Qanun 3/2000.

Mukim A subdistrict administrative level in Aceh. A mukim covers all the villages thatare linked to the main mosque in the area.

Musyawarah Meeting to find consensus

NAD Nanggroe Aceh Darussalam; the official title for the Province of Aceh

NGO Non-governmental Organisation

PDI-P Partai Demokrasi Indonesia – Perjuangan (Indonesian Democratic Party of Struggle)

Perda Peraturan Daerah (Regional Regulation)

Perda 7/2000 Regional Regulation on the Establishment of Adat Life

PUSA Persatuan Ulama Seluruh Aceh (All-Aceh Ulama’s Union)

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Glossary


Perwalian Guardianship

POLDA Kepolisian Daerah (provincial police command)

POLRES Kepolisian Resort (district level police command)

POLSEK Kepolisan Sektor (subdistrict level police command)

Pondok pesantren Religious boarding school

PuGAR Pusat Gerakan Rakyat (People’s Movement Centre); Acehnese NGO

Qanun An Arabic term used in Aceh to denote Peraturan Daerah or Provincial Law since theProvince was granted regional autonomy under National Law 18 / 2001.

RANHAM Rancangan Aksi Nasional Hak Asasi Manusia (National Human Rights Action Plan)

Syariah A set of rules based on Islamic scripture and jurisprudence potentially applicable toall forms of legal interaction.

Teungku Acehnese traditional leaders

Timsos Tim Sosialisasi (Socialisation Team); MoU awareness-raising team consisting of represen-tatives from the GoI and GAM.

Tuha Peut Traditional village level governance body. Tuha peut (in Gayo: sorakopat) or, as it isotherwise called, the Village Representative Body, consists of the keucik, ulama,knowledgeable village members, adat leaders, farmers and traders. The total numberof members depends on the population of the village, although in Acehnese theterm means ‘four leaders’. The tuha peut provides advice and oversight in the area oflaw and religion for a village.

Tuha Lapan Traditional village level governance body. The total number of members depends onthe population of the village, although in Acehnese the term means ‘eight leaders’.The tuha lapan acts as the legislative institution that focuses on economic anddevelopment issues for a village.

TNI Tentara Nasional Indonesia (Indonesian Military Forces)

TRC Truth and Reconciliation Commission

Ulama Muslim religious scholars trained in Islam and Islamic law and influential authorityfigures involved in local-level conflict resolution. Historically, the ulama were keyfigures in the struggle against colonial occupation.

UN United Nations

UNDP United Nations Development Programme

UNICEF United Nations Children’s Fund

Wanra Perlawanan Rakyat (Civil Defense Force)

Warisan Inheritance

Wilayatul Hisbah (WH) A governmental body established by Governor’s Decree 1 / 2004 and administeredby the Dinas Syariat Islam, the WH is responsible for monitoring Syariah conduct andcompliance to Syariah Law within Acehnese society; do not currently have enforcementpowers but are authorized to provide ‘moral guidance’.

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20

Chapter 1Introduction


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Chapter 1


Access to justice is increasingly recognisedas a necessary pre-condition for peace anddevelopment, especially in poor and post-conflict settings. By ‘access to justice’, UNDPmeans “the ability of people, particularlyfrom poor and disadvantaged groups, to seekand obtain a remedy through formal andinformal justice systems, in accordance withhuman rights principles and standards”.2 Theterm ‘justice’ is interpretive and contextual.When people think of justice, they mayprioritise legal, economic, social or politicaljustice and may not necessarily think ofthe justice system only as constituted bypolice, courts and lawyers but as constitutedby other public service providers as well.Access to justice contributes to peaceand development in a number of ways.

First, it acts to consolidate peace and supportreconciliation by creating the conditions thatpermit people to resolve legitimate grievances,which might otherwise lead to broader socialconflict, in an effective and expedient mannerthat is based on legal certainty. Second, itcontributes to sustainable human developmentby defining a minimum scope of legitimateclaims based on human rights, such as theright to education, the right to shelter or theright to food, and then identifying who arethe claim-holders and duty-bearers in aparticular situation. It then seeks to enhanceclaim-holders’ ability to reclaim these rights,while holding duty-bearers’ accountable inprotecting these rights.

In the Indonesian context, access to justicemay be achieved through both formalgovernmental and informal community-based mechanisms. With regards to formal

mechanisms, numerous studies have shownthat the justice system has suffered fromsevere and widespread deficiencies fordecades. The legal deficiencies occur sector-wide including within the Courts, the Police,the Attorney General’s Office and the privatesector legal professions. The Government ofIndonesia (GoI) has recognised thesedeficiencies and has undertaken a number ofreforms to strengthen the justice system.Important reforms include the judicial reformprograms, including the Supreme CourtBlueprints, Anti Corruption Court Blueprints,and the satu atap or ‘one roof ’ court reform,as well as the Rencana Aksi Nasional HakAsasi Manusia (RANHAM; National HumanRights Action Plan). While implementationof this reform agenda was arguably erraticin its initial years,3 there are indicationsthat the GoI under President Susilo BambangYudhoyono is stepping up its efforts toreform and strengthen the justice system.Among other things, i t has identif ieddevelopment and peace as explicit prioritygoals under the Medium Term DevelopmentStrategy for 2004 – 2009.4 Consequently, thetime is opportune for additional assis-tance efforts that support access to justice.

1.1 Access to Justice in Aceh

While many factors have contr ibutedto the deficiencies in the functioning ofthe justice system in Indonesia, these areexacerbated in s i tuat ions of conf l ictand natura l d i sas ter. In Indones ia ’swestern-most province of Nang g roeAceh Darussalam (NAD, or Aceh), thirtyyears of conflict, which has resulted inthe deaths of over 15,000 people, has led to

23

Chapter 1

2 UNDP, Programming for Justice: Access for All, p. 6.3 Asian Development Bank, “Country Governance Assessment Report: Republic of Indonesia”, September 2002.4 Republ ic of Indones ia-Bappenas, 2005, Indones ia ’s Medium Ter m Development Strateg y 2004-2009. The Strateg y a ims

for: (1)security and peace; (2) justice and democracy; (3) prosperity and welfare.

Chapter 1 - Introduction


court closures, destruction of infrastructureand diminished confidence in the legalsystem – all of which has led to a drasticdecl ine in the number of legal casesreported and a mass departure of legalpersonnel due to fear or intimidation.The formal justice system was furtherweakened by the devastating tsunami of26 December 2004 that killed over 130,000people, left 93,600people missing ands o m e 5 0 0 , 0 0 0homeless or d i s -placed.5 Some 105court personnel andover 1,000 pol iceofficers lost theirl i v e s o r r e m a i nmissing. Thirty-fourpercent of justice-related infrastructurei n c l u d i n g p o l i c estations, prosecutionoffices, court housesand prisons, is esti-mated to have beengravely damaged ordestroyed. 6 Cour tdocuments, much ofwhich existed onlyin hardcopy, wereseverely damaged orcompletely lost. Rehabilitation and reconstruc-tion isunderway under the coordination ofthe Badan Rehabi l i tas i dan Rekonstruksi(BRR; Rehabilitation and ReconstructionAgency).

However, unti l recently, programminghas – understandably - focused on res-

ponding to the life-saving and livelihoodneeds of victims of the disaster and, as yet,insufficient emphasis has been devoted torehabilitating the justice sector.

With the signing of the Memorandumof Understanding (MoU) between theGoI and the Gerakan Aceh Merdeka (GAM;Free Aceh Movement) that ended thirty years

of civil war, Acehis now making itsway through themultiple processesof post-d isasterand post-conflictrecovery.7 While thepeace has so farheld strong, it is farfrom consolidated.In order to avoid areversal into con-flict, the people ofAceh will have tofeel that they areexperiencing first-hand the dividendsof peace broughtabout by the MoUand developmentbrought about byt s u n a m i r e c o n -struction.

To this end, strengthening access tojustice – through both formal or informalmechanisms – is a critical condition for sus-taining peace and development in Aceh.

5 Republic of Indonesia – Bappenas, 2005, Master Plan for Rehabilitation and Reconstruction for the Regions and People of the Provinceof NAD and Nias Is lands of the Province of Nor th Sumatra – Main Book of Rehabi l i tat ion and Reconstruct ion, p. I-1.

6 CGI,“Preliminary Loss and Damage Assessment”, January 2005, p.64.7 Toshihiro Nakamura, UNDP’s Initial Response to the Tsunami in Indonesia (End of Mission Report: January-March 2005) (UNDP:

Transit ion Recovery Unit , Bureau for Cris is Prevention and Recovery with UNDP Indonesia, Geneva, 17 Apri l 2005), p. 8.

24

Chapter 1

Mass Grave - Victims of the Earthquake and Tsunami,


1.2 Prior Needs Assessments

Assessments of Aceh’s justice system duringthe conflict period and prior to the tsunamidepict a system that had stopped functioningalmost entirely. In 2003, immediately afterthe signing of the Cessation of HostilitiesAgreement at end-2002, a UNDP justice sec-tor assessment concluded the following:

“While many factors contribute tothe demise of institutional integrityand functioning of the justice system-factors which are present throughoutIndonesia – corruption, lack of account-ability, transparency, independenceand legal exper t ise among legalpersonnel, poor regulations gover-ning recruitment and training ofjudges and weak supporting infra-structure all contribute to the overallpicture - in Aceh, we find an acuteexpression of all of these.”8

Post-tsunami assessments of Aceh’s justicesystem have demonstrated new concerns re-lating to citizens’ access to justice. For exam-ple, among other things, new justice grievanceshave arisen as a result of the tsunami thatthe justice system was not equipped to dealwith. One example is that much private andcommunal land was inundated or submergedby the tsunami to the extent of becomingunusable for accessibility or safety reasons.9

Aceh’s local government and Badan Rehabilitasidan Rekonstruksi (BRR; Rehabilitation andReconstruction Agency) have had to comeup with innovative solutions to this unprece-dented problem.

1.3 Rationale and Aims of theAssessment

The correlation between access to justice andpeace and development provides the rationalefor the Access to Just ice Assessment(hereinafter referred to as the assessment)undertaken by UNDP in Aceh betweenJanuary and March 2006, and in partnershipwith BAPPENAS, BRR, Faculty of LawUNSYIAH, Faculty of Syariah IAIN Ar-raniry,Mahkamah Sya r i ah , Wor ld Bank andthe Inter na t iona l Deve lopment LawOrganization (IDLO).10

The assessment examined citizens’ accessto justice - through both the formal (Syariahand General Courts) and informal (adat) justicesys tems - in four d is t r ic ts and twomunicipalities of Aceh; namely, Aceh Utara,Aceh Tengah, Aceh Barat , Pidie andKotamadya Banda Aceh and Lhokseumawe.

The assessment aims to identify howcommunity access to justice can be improvedby strengthening the abilit ies of users(or c l a im-ho lders ) to access jus t i cemechanisms and the ser vice del iver ycapabi l i t ies of ser v ice providers (orduty-bearers). The assessment aims toprovide a better understanding of communityneeds and the challenges facing duty-bearers in the present context. Understandingproblems from the claim-holders’ perspec-tive offers guidance on which aspects ofthe justice system need strengthening,in particular, to reach poor and vulnerablegroups and on how to establish priorities tomaximize positive impact on access to justice.

25

Chapter 1

8 UNDP, A Review of the Justice System in Aceh, Indonesia, p. 6. Some observers state that the system worked quite well with respectto arresting and prosecuting individuals suspected of being involved with GAM.

9 UNDP/OXFAM has produced a report addressing key legal issues regarding land claims/rights in tsunami affected areas; see, DanielFitzpatrick “Restoring and Confirming Rights to Land in Tsunami-Affected Aceh”, 14 July 2005. The report outlines a number ofrecommendations to address post-tsunami land rights issues.

10 See Appendix 5 for Methodology. The assessment is largely qualitative, though does include quantitative data when available.


This report articulates an overall strategy forimproving community access to justice andcoordinating initiatives based on actual needsinside Aceh, which is in accordance with theGoI’s reconstruction and peace-building aims,as referred to in the MoU. As the GoI andseveral organisations have begun to launch,or are planning to launch, different justicerelated projects, a unanimous objective mustbe to strengthen synergies among differentgovernment and donor agencies in a mannerthat will have a multiplier effect to the valueof specific sectoral initiatives.11

1.4 The Access to Justice .......Framework

This assessment is based on a conceptualframework on access to justice outlined belowand, as such, the report is structured in thismanner. The access to justice framework isbased on two goals: promoting human rightsand enhancing capacity development to allowpeople to “solve problems, perform functions,and set and achieve objectives”.12 The ultimateaim is to “empower poor and disadvantagedpeople to access fair justice remedies that canhelp them to enhance their well-being”.13


A fair and effective normative legal frameworkis critical to ensuring access to justice as ithas the capacity to both protect and defendthe interests of the poor. Norms in thiscontext consist of: rules, be they internationalor national or formal or informal; theprocesses through which these rules are made,applied, interpreted, enforced and changed;and, the capacity of individual actors andinstitutions that are involved in theseprocesses. Formal norms are reflected in theConstitution, national legislation, regionalregulations and jurisprudence issued by thecourts.

Formal norms may also include officiallycodified religious regulations. Informal normsevolve through social interaction and reflectcustoms and accepted behaviours within aparticular group or community.14 Informalnorms are uncodified customs, beliefs andrituals that guide “processes of resolvingdisputes outside of formal court systems”.15

Informal norms may be protected by law aswell, as they are in Aceh. Chapter 3 examinesthe normative legal framework of Aceh

11 International organisations that have initiated projects include, inter alia, UNICEF (women and child protection), IRC (policehuman rights training), IOM (reconstruction and police training), the World Bank (village level justice and legal awareness) and IDLO(gender issues, legal awareness, and assistance to courts).

12 UNDP, Programming for Justice: Access for All, p. 6.13 Ibid., p. 11.14 Ibid., p. 39.15 Ibid., p. 97.

26

Chapter 1

Monitoring, Oversight and Transparency

LegalAwareness

Access toAppropriateForum

EffectiveHandling ofGrievance

SatisfactoryRemedyObtained

NormativeLegalFramework

BOX 1: ACCESS TO JUSTICE FRAMEWORK


and its capacity to ensure access to justice inthe post-tsunami, post-conflict setting.

Legal Awareness

Legal awareness is critical to securing accessto justice. Poor and disadvantaged groupsoften fail to make use of laws and rightsprecisely because they are not aware ofthem. Poor communities need to be awareof the law, of available remedies and ofhow to access those remedies. Chapter 4describes assessment findings with regardsto citizens’ legal awareness in Aceh and ex-amines some of the identified impedimentsto greater legal awareness.

Access to Appropriate Forum

Once equipped with legal knowledge,the poor and disadvantaged require adequateaccess to appropriate formal and informaljustice systems to seek remedies. In practice,this access – or citizens’ choice of forums –may be restricted due to social, political,economic or institutional factors, as well asdue to the institutional strengths andweaknesses of the justice forums, and com-munity perceptions about different justiceforums. It is necessary to understand thesefactors in order to address them to enhancecitizens’ choices with regards to justice fo-rums. Chapter 5 discloses factors that restrictcitizens’ access to appropriate justice forumsin Aceh.

Effective Grievance Handling

Effective handling of grievances refers tocase handling in a manner that is accordingto the law, impartial, expedient and consistentwith human rights standards. Effective han-dling of grievances may be compromised fora variety of reasons, including a weak norma-tive legal framework and low capacity of duty-bearers. Chapters 6 discusses assessment find-ings concerning the capacity of formal andinformal justice duty-bearers and institutionsin Aceh to handle grievances.

Obtaining a Satisfactory Remedy

Justice is only fully served when claim-holdersobtain satisfactory remedies and sanctionsare enforced in a manner consistent with thelaw and human rights principles. Public con-fidence in justice institutions further dependson satisfactory outcomes. Chapter 7 examinesthe extent to which the various justice systemsin Aceh are able to ensure satisfactory reme-dies and enforce sanctions.

Oversight and Monitoring

Publ ic overs ight and moni tor ing offormal and informal justice systems isfundamental to achieving the above goals.Oversight functions should cut across allelements of access to justice initiatives.Consequently, oversight and monitoringare discussed in each chapter in relationto each step of the access to justice frame-work and findings of the assessment.

27

Chapter 1


28

Chapter 1

Chapter 2Background


30

Chapter 2


Indonesia’s Province of Aceh is located onthe northern tip of the island of Sumatra andconsists of 21 districts. In 2004, the CentralBureau of Statistics (Biro Pusat Statistik, BPS)listed the total population of Aceh at4,075,599.16 The population of Aceh consistsof over a dozen indigenous ethnic groups,including Acehnese, Alas, Aneuk Jamee andGayo. Each ethnic group speaks their ownlanguages that are further differentiated byvarious regional dialects.17 The level of writtenand spoken fluency with Bahasa Indonesiavaries among the different ethnic groups.Employment figures from 2004 indicate that52.69% of the population was employed and42.36% was “non-economically active”.18 Percapita regional income derived from gas andoil activities is listed at approximately Rp 8.3million and non oil and gas per capital regionalincome was approximately Rp 4.9 million19

with an average non-agricultural wage in 2002of Rp 527,300 (female) and Rp 975,300(male)20 Non-oil and gas related economicactivities include paddy agriculture, dry fieldagriculture, animal husbandry, fresh waterfishery, marine fishing, home industry, andpetty trading. The Indonesian Human Devel-opment Report 2004 notes that the level ofpoverty is markedly higher in heavily conflictaffected eastern and central districts of theProvince.21 Close to 95% of the populationpractices Islam, while an unspecified numbermix Islamic practices with animistic beliefsand rituals.

2.1 History

Acehnese take pride in the Province’s historyas the strongest centre of resistance withinIndonesia against colonial Dutch rule. Priorto World War II the ulama leadership (religiousleaders) led the Acehnese in opposition tothe Dutch.22 The PUSA, the All-Aceh Ulama’sUnion, and broader ulama leadership in the1940’s considered their struggle againstcolonialism as a movement against “feudal”structures and in “Acehnese and Islamic termsrather than Indonesian terms”.23 The resultwas a fundamentally different social andideological view among Acehnese leaders thatdifferentiated their struggle from the broaderIndonesian independence movement led byurban based Dutch educated elite in Java whosought to build a modern state based onsecular law.24 This political and ideologicaldivision underpinned the Acehnese DarulIslam rebellion (beginning in 1953) againstthe Indonesian central government. However,rather than seeking to establish an inde-pendent Acehnese state, the rebellion soughtto create an Indonesian Islamic state.25

Following early political instability in the1950’s, President Sukarno introduced thenotion of “Guided Democracy”, in which thepolitical and economic role of the TentaraNasional Indonesia (TNI; Indonesian NationalMilitary Force) expanded greatly with acorresponding decline of civilian control over

16 BPS, Badan Pusat Statistik, Table 2, Number of population by regency/city in Nanggroe Aceh Darussalam Province, 1999-2004http://aceh.bps.go.id/isi/pop/2.htm (May 2006).

17 Based on information published in: Z Hidayah, Ensiklopedi Suki Bangsa di Indonesia (Jakarta: P3ES, 1997) and M.J. Melalatoa,Ensiklopedi Suku Bangsa di Indonesia (Jakarta: Proyek Pengkajian dan Pembinaan Nilai-nilai Budaya, Direktorat Sejarah dan NilaiTradisional, Ditjen Kebudayaan Departemen Pendidikan dan Kebudayaan Republik Indonesia, 1995).

18 BPS, Badan Pusat Statistik, Table 1, Percentage of Labour and Not Labour Force by Regency/City, 2004 http://aceh.bps.go.id/isi/employment/1.htm (7 May 2006).

19 BPS, Badan Pusat Statistik, Table 4, Gross Domestic Regional Product per Capita and Regional Income per Capital Figures at ConstantPrices in Nanggroe Aceh Darussalam Province 2002-2004 http://aceh.bps.go.id/isi/ri/4.htm (7 May 2006).

20 UNDP, Indonesia Human Development Report 2004 (UNDP, BPS, BAPPENAS, 2004), p. 144.21 Ibid, pp. 144, 217. Although recent statistics are not available, it is likely that there have been significant changes since the tsunami.22 For a fuller historical discussion see, Anthony Reid, An Indonesian Frontier : Achehnese & Other Histories of Sumatra (Singapore:

Singapore University Press, 2005), pp. 275-337.23 Ibid., pp. 315, 327.24 Ibid., p. 328.25 Ibid., p. 341.

Chapter 2 - Background

31

Chapter 2


26 Muthiah Alagappa (ed.), Coercion and Governance, p.456.27 Geoffrey Robinson, Indonesia: On a New Course?, in Alagappa (ed.), p.227.28 Edward Aspinall, The Helsinki Agreement: A More Promising Basis for Peace in Aceh? (Washington: East-West Centre, 2005), p.65.29 Rizal Sukma, Securi ty Operat ions in Aceh: Goals, Consequences and Lessons (Washington: East-West Center, 2004) , p.8 .30 Kirsten E. Schulze, The Free Aceh Movement (GAM): Anatomy of a Separatist Organization (Washington: East-West Center, 2004),

p. 1.31 Rizal Sukma, Security Operations in Aceh, p.4.32 Satya Arinanto and Agung Djojosoekarto, The Role of Parliamentary Institutions in Transitional Democracy, p.5.33 Graham Brown, Horizontal Inequalities, Ethnic Separatism, and Violent Conflict: The Case of Aceh, Indonesia (UNDP: Human

Development Report Office, Occasional Paper, 2005), p.3.34 Human Rights Watch, Indonesia: The War in Aceh, p.22.35 Ibid., pp. 34-35; Human Rights Watch, Aceh at War: Torture, III-Treatment, and Unfair Trials, Vol. 16 , No. 11 September 2004 (Human

Rights Watch: Asia Division, 2004).

national politics.26 In 1965, President Suhartointroduced the New Order regime and, by1967, a state ideology “obsessed with nationalunity, and preoccupied by perceived threatsof subvers ion” had emerged . 2 7 Thesubsequent centralization of political authoritybetween 1965 and 1976 gave rise to renewedconflict in 1976 with the GAM, led by Hasandi Tiro, calling for Aceh to be independentfrom Indonesia .28 Although this f irstsecessionist conflict was quickly subdued,conflict was renewed in 1989 and, by 1990,Aceh had unofficially become a Daerah OperasiMiliter (DOM, or Military Operations Area).The number of TNI personnel (then knownas ABRI) increased from approximately 6,000ter r i tor ia l t roops to 12 ,000 mi l i ta r ypersonnel.29 A serious escalation of conflictin 1998 between the parties was due to anumber of factors: economic exploitation;centralism and uniformity; military repression;and the politics of impunity. Aceh’s ulama,who had presented a challenge to “secular”Indones i an na t i on -bu i l d ing and anobstacle to the centralized developmen-talist ideology30, lost influence in Aceh asmost were “either co-opted or forced toplay the role of government supporters”.31

The secessionist conflict in Aceh led towidespread human rights violations committedby GoI security forces (TNI/police). Killingof suspected GAM supporters, rapes ofalleged GAM women, arbitrary arrests, unfair

trials and detentions took place on a largescale, while corruption, poor access to legalrights and a culture of impunity served tofurther protract the violations. Rather thanseeking “win-win” political solutions for localactors,32 patterns of rent-seeking andcorruption became reinforced by corrupt andv io lent g overnance tha t fue l l ed thegrievances underpinning the secessioniststruggle. For example, by 1998 more than40% of Aceh’s GDP came from oi lproduction but the level of poverty increasedby 239% between 1980 and 2002; comparedto a fall of 47% in the level of poverty in therest of the country over the same period.33

The GAM also committed human rightsviolations, including the killing of suspectedinformants (cuaks) and GoI security personnel(TNI/police) or their family members,unlawful detentions, forced expulsions ofminority ethnic groups, destruction ofproperty and systematic extortion.34 In2004, Human Rights Watch argued thata condition of near lawlessness existedin Aceh, with only one fully functioningcourt located on the island of Sabang.35

Following the resignation of President Suhartoand the collapse of the New Order Regimein 1998, there was recognition among someIndonesian political elites that military actionalone would not resolve the conflict in Aceh.This led to several attempts at a negotiated

32

Chapter 2


settlement.36 However, the unstable transitionprocess between 1999 and 2004 and anationalistic backlash against the “loss” ofTimor-Leste following 1999 provided spacefor conservative-minded TNI figures toreassert their influence on national policy-making. This led to the militarization of Aceh,which by 2002 had an estimated 21,000 TNIpersonnel and 12,000 police personnelstationed in the Province.37 In practice, theGoI followed an “integrated approach” toresolving the conflict that included intensivemilitary campaigns against GAM alongsideparallel attempts to negotiate a politicalsettlement.38 In December 2002, the Cessationof Hostilities Agreement (CoHA) was signedbut collapsed in May 2003 when the GoIdeclared Martial Law in Aceh.39 In additionto the human rights violations perpetratedby GoI security forces and GAM combatantsduring the period immediately subsequentto the collapse of the CoHA, there werealso violations committed by local militiagroups that terrorized people suspectedof anti-government actions.40

2.2 The Tsunami and the ........Memorandum of .................Understanding

While the effects of the tsunami in Acehon 26 December 2004 were devastating, itdid provide a window of opportunity to

push forward a peaceful resolution tothe secessionist struggle in the Province.The tsunami killed over 130,000 peopleand d i sp l a ced ove r 500 ,000 . 4 1 T hedestruction left some 3,000 kilometers ofroads impassable and 120 arterial bridges andapprox ima te l y 1 , 500 minor b r idg esdestroyed.42 As detailed in the box below,the tsunami also had a debilitating impactupon Aceh’s rule of law institutions. Post-tsunami losses and challenges included thedestruction of justice institutions in someareas and the collapse of investigatory,prosecutorial and adjudicatory services. Thetotal estimated financial damage is placed atUSD 82 million and damage or loss to publicrecords is estimated at USD 18 million.43

In the context of this devastation and humansuffering, the GoI and GAM were able topresent subsequent peace negotiationsas a response to the tsunami.44 Indonesianpolitics had seen the electoral defeat of Pres-ident Megawati Sukarnoputri prior to the2004 tsunami and the ascendancy of those ingovernment who favoured a negotiated set-tlement to the conflict, principal among thesebeing the new President Susilo BambangYudhoyono and Vice-President Jusuf Kalla.45

On August 15 2005, a Memorandum ofU n d e r s t a n d i n g ( M o U ) w a s s i g n e dbetween the parties in Helsinki, Finland.The agreement preserves the territorial

36 Edward Aspinall, The Helsinki Agreement, p.13.37 Human Rights Watch, A Return to the New Order? Political Prisoners in Megawati’s Indonesia, Vol. 15, No.4 (New York: Human

Rights Watch, 2003), p. 3-4; Rival Sukma, Security Operations in Aceh, p. 16.38 Edward Aspinall, The Helsinki Agreement, p. 14.39 ibid., pp. 4-6.40 Geoffrey Robinson, Indonesia: On a New Course? pp. 237, 242.41 GoI, Master Plan for Rehabilitation and Reconstruction for the Regions and People of the Province of Nanggroe Aceh Darussalam

and Nias Islands of the Province of North Sumatra (Republic of Indonesia), p. II-3. Figures on IDPs vary by source and time andcan be misleading. For example, many Gayo conflict IDPs in Aceh Tengah are not officially recognized as IDPs because they oftenfound housing/support from extended family members within the district.

42 BRR, Aceh and Nias One Year After the Tsunami: The Recovery Effort and Way Forward (A joint Report of the BRR and InternationalPartners; December 2005), p. 16.

43 Reconstruction Notes, CGI, January 2005, p. 135.44 Ibid., pp. 20-21.45 Edward Aspinall, The Helsinki Agreement, p. 37.

33

Chapter 2


46 Ibid., p. 13.47 Ibid., p. 58.48 Drawn from “Preliminary Loss and Damage Assessment”, CGI January 2005, p. 64.

integrity of Indonesia.46 While the peaceprocess remains in its early stages, the agree-ment appears a viable solution for GAM’spolit ical leadership, which has arguedthat its primary objective has been toachieve justice and prosperity for thepeople of Aceh rather than independence.47

If the peace process holds, there is a realhope for the strengthening of the justicesector in Aceh. Simultaneously, the strength-ening of the justice sector plays a criticalrole in consolidating the peace process.

2.3 Major Grievances Identi-..fied during the Assessment

It is critical that citizens’ access to justice isenhanced and that the channels that they

choose to redress their grievances are able toresolve them in a fair and effective manner,in order that the Acehnese may feel that theyare genuinely benefiting from the dividendsof peace and development. This section ex-amines the major justice grievances faced byAcehnese in tsunami- and conflict-affectedareas. Common justice grievances identifiedin tsunami-affected areas :

- No housing;- Land claims (abrasion, land boundary

disputes, missing land documents);- Unequal aid distribution (discrimination,

unfair distribution, corruption);- Inheritance disputes;- Lack of assistance for orphans;- Domestic violence against women; and- Past human rights violations.

Category Damaged Out of % Damaged Impact (USD)

Building 16 47 34% 5,973,826

Equipment 16 47 33% 1,048,686

Personnel 105 N/A 22,631

Records N/A N/A

Other 704,514

Oversight 774,966

Subtotal 8,524,623

Building 34 171 20% 2,775,625

Equipment 34 171 20% 1,460,489

Personnel 2,502 14,763 17% 2,952,600

Records 686,259 2,541,701 27% 3,431,297

Other 1,062,001

Oversight 1,168,201

Subtotal 12,850,213

Building 4 22 18% 594,000

Equipment 158 880 18% 3,247,200

Personnel 123 880 14% N/A

Records 59 220 27% 950,400

Other 479,160

Oversight 527,076

Subtotal 5,797,836

34

Chapter 2

Justice

Police

Parliament

TABLE 1: DAMAGE ESTIMATES FOR RULE OF LAW INSTITUTIONS48


Common justice grievances identified inconflict-affected areas :

- Past human rights violations committedby TNI, POLRI, GAM, wanra, and “un-known persons” (e.g., intimidation, beat-ing, torture, disappearances, summaryexecutions, etc)49;

- Theft and destruction of property;- Destruction of livelihoods;- Government and village level corruption;- Displacement due to the conf l ict ;- Land disputes (especially for returnees);- Disputed land ownership and land usage;- Violence against women; and- Inheritance disputes.

The following are some examples of thesegrievances. As is seen from these examples,vulnerable groups are further marginalisedbecause they are taken advantage of and, aslater chapters will discuss, find it especiallydifficult to access justice and redress theirgrievances.

Economic Grievances

Vi l l ag e r e sponden t s comp la ined o fa variety of tsunami and conflict-relatedeconomic grievances. These relate, interalia, to loss of land, destruction of propertyand the unequal d istr ibut ion of a id .

The loss of land and destruction of propertyduring the tsunami is a major grievancealready well documented in other reports.50

The loss of land documents has resultedin legal uncertainty regarding land owner-ship rights for survivors of the tsunami. Therehas a lso been increasing competit ionamong heirs and community members

seeking to gain legal title over propertiesthat are increasing in value.51 Respondentsreport that this has created social mistrustamong communi t y members and i sundermining social cohesion.

Loss of land and destruction of property isalso a major grievance in conflict areas.Significant problems exist for displacedcommunities attempting to return to theirland and homes. The assessment found twovillage sites in which Acehnese returneesare blocked from accessing their land andhomes (Villages CA3, CA2). In the meantime,the returnees remain camped outside thevillage living in temporary dwellings (whileothers make only infrequent visits to the area).In fact, upon initial return, several Acehnesewere chased by a village mob that was hostileto their return, which forced the returneesto seek refuge in the keucik’s office. In anothervillage, some twenty Acehnese returneeshave been forced to live in a single tempo-rary dwelling while Gayonese displacedfrom a neighboring village occupy theirhomes and farm their lands. Althoughthe village leaders recognise the ownershiprights of returnees, there is a palpable fearamong duty-bearers of resolving the issuebecause, during the conflict, pro-GoI militiagroups were very strong in the area and weremade up of local Javanese and Gayoneseresidents. Although several ad hoc attemptshave been made to reconcile differentgroups in these areas, the land ownershipclaims of returnees remained unresolvedupon the writ ing of this assessment.Returning community members also expres-sed grievances about a lack of governmentreconstruction assistance for homes des-

49 See Appendix 1.50 See, among others, Daniel Fitzpatrick “Restoring and Confirming Rights to Land in Tsunami-Affected Aceh”, 14 July 2005.51 Interview, Syariah Court Judge, 12 January 2006, Banda Aceh.

35

Chapter 2


52 UNDP, Report to UNDP Indonesia: Human Rights Programme Review, HURIST Mission Team, 30 May- 10 June 2005 (UNDP,Jakarta: Draft of 10 July 2005), p. 21.

53 FGD, Widows, 8 February 2006, Village CA9, Banda Aceh.54 Muamar Vebry, ‘Helping the Survivors, Landless Renters’, Aceh World, February 14-20, p. 8.

troyed or damaged during the conflict.Aceh Utara alone contains close to twothousand recorded cases of houses burntduring the conflict. Citizens have presentedclaims for assistance to keuciks, camats, andbupatis (head of district). However, theauthor i t i e s have thus f a r t aken in -adequate action to resolve these problems.This may be changing as the internationalcommunity begins to allocate greater fun-ding towards post-conflict reconstructionsince the signing of the MoU.

Another economic problem put forth as aprimary grievance by village respondents isunequal distribution of aid. One reason is thepattern of reconstruction aid provided bydonors and the method of distributing aid.As noted by a HURIST mission report:

…[I]nternational bilateral and multi-

lateral agencies are each setting their

own housing standards and working

on a first come first served basis that

r i sk exace rba t ing j e a lousy and

tensions….52

Different standards of assistance providedby government and donors in tsunami areasare creating grievances among differentcommunities, particularly as there appears tobe no rationale behind the different standards.This is exacerbated by the lack of competenceor corruption among duty-bearers whenidentifying aid beneficiaries.53 Unclear criteriafor aid distr ibution often lead to thedisadvantaged, who have little or no voice toar t icu la te the i r needs, be ing fur therdisadvantaged. For example, landless rentersin tsunami-affected vi l lages, who theassessment identified as a disadvantagedgroup because land ownership carries with itsocio-economic status, had been furtherdisadvantaged because, without land, thehumanitarian community was, at the timeof writing, unable to provide them withhous ing. 5 4 A lso, v i l l age respondentscomplained that powerful village leaders oftendirect benefits to their associates or familynetworks.55 For example, in a village wherean NGO was undertaking a road recon-struction project, villagers complained thatthe keucik deceived the community by claimingthat the NGO was offering Rp 7,000 for the

36

Chapter 2

BOX 2: LANDLESSNESS: DISADVANTAGING THE DISADVANTAGED

The government has prohibited the citizens to rebuild their houses there with the excuse that the land isstate land…The community doesn’t have proof of property ownership…the proof owned by the communityis only the land clearing documents and land and building tax payment documents, all lost during the tsunami.

I don’t have any land so they cannot give me a house. Those who already have something are given more.Those with nothing cannot receive help.

We are not allowed to live there because it is too close to the beach…our previous lands are now part ofthe ocean…All the people from our village must go to a new location several kilometers inland…we areforced to move there…only those with a land certificate can get a house...I don’t want to move to anotherplace. It is impossible for us to live in the area far from our place of work.

I have seen the houses in the new location, when I leaned against the wall it gave way and I felt like I pushedinto the wall, it looks like cement but it’s not, it’s only made of asbestos.

Interview, Widower, and FGD, Fishermen, 10 February 2006, Village TA8; FGD, Widows, 7 February 2006, Village TA8.


55 Interview, Panglima Laot, 22 January 2006, Village TA5, Aceh Utara; Interview, Village leaders, 21 January 2006, Village TA4,Aceh Utara; FGD, Widows of Conflict, 8 February 2006, Village CA9, Banda Aceh.

56 Interview, IDP Camp Coordinator, 22 February 2006, Banda Aceh.

installation of one meter of bamboo pancang,whereas in truth the NGO was offeringRp 7,500, thus giving the keucik a Rp 500profit for each meter.56 Finally, economicgrievances have arisen among conflict-affected populations who perceive thedistribution of aid to tsunami populationsas disproportionate, as they too have faceddestruction and loss over, as they argue, amuch longer period of time.

Village respondents receiving governmentassistance also complained that they do notreceive the full share of the assistance theyare entitled to because of corruption withinthe system or apathy among governmentofficials responsible for distributing assistance.This was particularly the case in conflict areasamong widows and families looking after

orphans. The box above demonstrates anexample of this grievance relating to thecorruption of assistance.

Past Human Rights Violations

Human rights violations committed byboth the GoI and the GAM during the conflictwere a major grievance encountered inthe assessment. As discussed in section 5.5,Acehnese have, for a variety of reasons,generally not pursued legal action to identifyand bring to justice perpetrators of humanrights violations. Neither has the GoIthus far actively sought to do so. However,Acehnese are interested in access ingcompensation or assistance from the GoIfor the pain and damages suffered.Theassessment found that, so far, such com-

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BOX 3: CORRUPTION AND MISHANDLING OF GOVERNMENT ASSISTANCE

With the CoHA agreement in 2002, the government pledged Rp 50,000,000 diyat or blood money for eachwoman in Aceh who had become a widow due to the conflict. In the first stage, widows only receivedRp 3,000,000. Widows did not receive this initial payment in full because a portion was taken by keuciks,camats, and others. As for the remaining assistance, widows are still waiting to receive payments. For example,on several occasions widow Y sought information from the government about her assistance payment buthas not received any answers. Instead, she has been subjected to insults from social service employees.Other widows choose not to inquire about their outstanding assistance payments because they are the wivesof ex-GAM members and are afraid of approaching the government. These widows said that they onlyhope that the government will pay attention to continuing their children’s education so that their childrenwill not nurse grudges against the government that will later influence them to commit criminal acts.

FGD, Widows of Conflict, 15 February 2006, Village TA2, Aceh Barat

BOX 4: HUMAN RIGHTS COMPENSATION CLAIMS

S was the victim of violence perpetrated by TNI personnel. One evening during the conflict around 15 peoplecame to her house to look for her husband. They asked her and the children to go outside. The children weretied up outside the house, while S was taken to the sea and told to stay in the water for a couple of hours. Then,in a fisherman’s boat she was beaten, kicked, pushed, and abused. Those abusing her wanted to get informationabout the location of her husband. A few days later she received news that her husband was shot dead by TNIand that his body had been found in another village. No assistance has been provided to her since the incidentor to help with the care of raising her children.

Interview, Widow of Conflict, 22 February 2006, Village CA7.


57 Ibid.

pensation or assistance has been serious-ly lacking, creating further grievance to victimsof human rights injustices. Box 4 outlinesa typical outcome for victims of humanrights violations.

Domestic Violence

Domestic violence and family disputeswere a major grievance of women in assess-ment sites. While the assessment did notcollect statistics on domestic violence, it isclearly a significant issue that arose at leastonce in almost every vil lage assessed.Additionally, while the Syariah Courts cannotdecide on domestic violence cases becauseit has not been criminalised under SyariahLaw, officials report that they receive a

high number of complaints concerningsuch violence.57 The assessment researcherscan only speculate that there are moreincidents than were reported, due to thecu l tura l taboo on openly d iscuss ingsuch a topic.

The assessment found that the highestnumbers of recorded cases filed with theSyariah Courts throughout the assessmentdistricts are divorces instigated by women.This indicates that domestic problems, whileit is unclear what they may be, are anothermajor source of grievance. Women reporta number of procedural problems that limittheir ability to access the Syariah Court whenseeking divorce, as indicated in the followingbox.

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BOX 5: CASE HANDLING - SYARIAH COURT

X has brought her case to the Syariah Court six times, but her petition for divorce is still not finalized. As witnessesfor her petition, she brought the Keucik and Tengku Imam, but she was told by the judge that they were “not goodenough”. She later had to return with her sibling. X comes from a poor family, but did not want to get a letterof poverty because she felt embarrassed. As a result, she had to pay Rp 360,000, Rp 50,000 of which went toadministrative typing fees. X feels that she has been treated unfairly and asks why the process has taken so long,and why she has had to come to the court so many times.

Interview, Villager, 12 February 2006, Village CA3

Chapter 3Normative Legal Framework


40

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Chapter 3 - Normative Legal Framework

41

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The normative legal framework in Aceh ispluralist, with simultaneously functioningand sometimes overlapping justice systemsthat include formal and informal systems.The formal systems include the General justicesystem (informed by positive state law,

which in turn has incorporated provisions ofInternational Human Rights Law) and theSyariah justice system (informed by Islamiclegal principles). The informal justicesystem includes the adat system (informed byf luid and evolving customary values) .


LegalAwareness





TABLE 2: KEY FINDINGS: NORMATIVE LEGAL FRAMEWORK

- Indonesian National Law applies in Aceh.- Indonesian human rights law is developing and there are provisions for

the establishment of a Human Rights Court and Truth and ReconciliationCommission (discussion of these in Chapter 6).

- Syariah Law is currently limited to family and property law and four criminal offences. However, there are intentions to expand its jurisdiction significantly.

- Syariah Law must be consistent with Constitutional Law.

- On-going unclarity as to whom Syariah Law applies to.

- Legal reforms now recognise adat as a key dispute resolution process.

- Adat must be consistent with National and Syariah Law.

- Is responsible for drafting and promulgating legislation, estimating andauthorising provincial budgets, and monitoring the Executive.

- Aceh’s provincial legislature has limited skills to effectively draft qanunsthat will be consistent with National law and the Indonesian Constitution.

- Islamic figures and the Governor’s Office are key players in draftinglegislation.

- There is limited, if any, community participation in the legislative process.

- Government oversight mechanisms against corruption and for publicservice delivery are weak or non-existent.

- The KPK in Aceh lacks a strong mandate.

General Justice System

Syariah JusticeSystem

Adat JusticeSystem

DPRA

KPK andoversight


The General justice system is defined here asthe set of institutions bearing a duty toadminister justice as per National Law. Theseinstitutions include the police, the prosecutionservice, the courts and the prisons. The Syariahjustice system refers to the set of institutionsbearing a duty to administer justice towardsMuslims as per the codified Syariah Laws,where these laws are the set of rules thatgovern Muslims’ behaviour and interactionsin society. These institutions currently includethe Mahkamah Syariah (Syariah Courts) andthe Wilayatul Hisbah (WH; responsible formonitoring Syariah conduct and complianceto Syariah Law), as well as utilising the Generaljustice system’s police and prosecutionservices. The adat justice system is definedhere as the largely un-codified culturally- andethnically-specific forms of law (hukum adat)or custom (istiadat) that traditionally governsrules of behaviour and is enforced by thecommunity using social sanctions. It consistsof living norms, respected and recognised bypeople, and acts as society’s code of conduct.It is also today a symbol of local autonomy.In Aceh, legislation has been passed thatformally recognises the role of adat in disputeresolution. This chapter examines thenormative legal framework of justice systemsthat apply in Aceh.58

3.1 National State Law

The General justice system in Aceh isinformed by Indonesia’s national positivestate law. In this respect, all laws that applyin the rest of Indonesia also apply in Aceh.Since 2001, when Law 18/2001 grantingAceh special autonomy was passed, SyariahLaw has also come into formal effect inAceh (discussed in the following section).

The hierarchy and authority of Indonesianlaws is illustrated below.59

Since special autonomy was granted in 2001,perda have been referred to in Aceh as qanun.Qanun are passed locally by the DewanPerwakilan Rakyat Aceh (DPRA, Aceh Houseof Representatives).60 MPR Decree 3/2000article 4 (1) stipulates that lower level lawsmay not contradict with higher laws. This isimportant to ensure that the rights ofAcehnese as Indonesians are protected, inparticular in terms of International Human

58 Chal lenges wi th these systems and the ways in which they contr ibute to effect ive handl ing of g r ievances are d iscussed inChapter 6.

59 MPR Decree No. 3/2000 Articles 2 and 3 updated by Law No. 10/2004.

60 Distr ic t or munic ipa l par l iaments (Dewan Perwaki lan Rakyat Kabupat en / Kotamadya ) can a lso leg is la te. Distr ic t or munic ipa lregulat ions are also refer red to, in Aceh, as qanun .

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1. Undang-Undang Dasar; the Constitutionof 1945 - the written law of the stateof the Republic of Indonesia, contain-ing the basis and broad legal outlinesin organizing the state;

2. Undang-Undang; Statute, and PeraturanPeng ganti Undang-Undang (Per pu), orthe Substitute Regulation for Law;

3. P e r a t u r a n P e m e r i n t a h ( P e r p e m ) ;Government Regulation to implementthe order of the Statutes;

4. Peraturan Presiden; Presidential Laws; and,

5. Peraturan Daerah (Perda); Regional or Provincial Laws.

BOX 6: NORMATIVE LEGALFRAMEWORKS FOUND IN ACEH

National Law Syariah Law Adat Law

(Formal) (Formal) (Informal)


Rights Laws, which have generally beenincorporated into National Law throughstatutes.61 Consequently, the DPRA cannotpass qanun in Aceh that contravene higherlaws. In practice, however, respondents notedthat reviews to safeguard harmonisation oflower laws with higher ones are rarelyundertaken.62

The diagram below shows the nationalstructure of courts in Indonesia’sformaljustice system (exclusive of specialist courtssuch as the Commercial Court). The structurein Aceh is identical except that, since 2001(as described in the following section), theReligious Courts have been re-namedMahkamah Syariah, or the Syariah Courts.The fact that Aceh has now entered into aperiod of post-conf l ict recovery andtransitional justice renders it worth examiningthe state of the General justice systemspecifically in terms of addressing humanrights violations.

3.1.1 Law on Governing Aceh

Specific to Aceh is the Law on GoverningAceh (LoGA, Law No.11/2006), which theMoU called for and which was promulgatedby the national DPR on 11 July 2006. TheLoGA is a legislative code that will informthe formal normative legal framework inAceh to a significant extent and, in turn,citizens’ access to justice. Provisions of theLoGA that will arguably most affect citizens’access to justice include, inter alia, those onthe Dewan Perwakilan Rakyat Aceh (DPRA;Aceh House of Representatives), on theestablishment of a Human Rights Court andTruth and Reconciliation Commission, andon adat institutions (discussed in section 3.3below). While there are other provisions thatmay affect citizens’ access to justice (such asarticle 75 on the creation of local politicalparties and the albeit brief article 231protecting women and children’s rights),this assessment examines those that itconsiders most pertinent and substantive.

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61 For example , Laws 11 and 12/2005 enshr ine the Internat iona l Covenant on Civ i l and Pol i t i ca l R ights ( ICCPR) and theInternational Covenant on Economic, Social and Cultural Rights (ICESCR) in nat ional law.

62 Interview, Academics, UNSYIAH, Apri l 12 2006, Banda Aceh.

SUPREME COURT

MAHKAMAH AGUNG

CONSTITUTIONAL COURT

MAHKAMAH KONSTITUSI

BOX 7: STRUCTURE OF THE INDONESIAN JUDICIARY

HIGH ADMINISTRATIVE

COURT

PENGADILAN TINGGI

TATA USAHA NEGARA

HIGH RELIGIOUS

COURTPENGADILAN TINGGI AGAMA INACEH, PROVINCIAL MAHKAMAH

SYARIAH

ADDITIONAL COURTS OF

SPECIAL JURISDICTION

MILITARY COURT

PENGADILAN MILITER

ADMINISTRATIVE

COURT

PENGADILAN TATA

USAHA NEGARA

RELIGIOUS COURTPENGADILAN AGAMAIN ACEH, MAHKAMAH

SYARIAH

DISTRICT COURT

PENGADILAN NEGERI

HIGH COURT

PENGADILAN TINGGI

HIGH MILITARY COURT

PENGADILAN TINGGI

MILITER


Dewan Perwakilan Rakyat Aceh(DPRA)

As the institution responsible for draftingqanun that constitute part of the normativelegal framework of justice in Aceh, it is worthexamining the functions, strengths andweaknesses of the DPRA.

Prior to May 2005 when Martial Law in Acehwas lifted after the tsunami, parliamentaryresponsibilities in Aceh were largely controlledby the Military and National Executive. Therecently promulgated LoGA, in Chapter VII,restores all the parliamentary functions ofthe DPRA. These functions include legislating,estimating and ratifying provincial budgetaryallocations, and policy supervision andmonitoring.

Currently, the DPRA consists of 65 memberswith representatives from 8 political parties.63

The DPRA is supported by a Secretariat thatconsists of 4 divisions64 with DPRA membersgrouped into several commissions to fulfilvarious aspects of their functions.65 TheDPRA holds plenary meetings up to seventimes a year to discuss: determining theRegional Budget (APBD); preparing to write-off regional assets; promulgating draft qanuns;preparing an accountability report for the

budget year; and final accountability reportof the Governor.66

While drafting legislation is one of thefunct ions of the DPRA, in pract iceinstitutions such as the Dinas Syariat Islam(Department of Syariah Islam) and MajelisPermusyawaratan Ulama (MPU; Ulama’sConsultative Council) have played a moresignificant role in drafting and proposing draftqanun. Nevertheless, it remains solely theDPRA’s responsibility to pass or promulgateqanun. Before promulgating a draft qanun,DPRA members are meant to solicit the viewsof the public and discuss the drafts in plenarysessions to ensure that they reflect the“aspirations” of the Acehnese people.67

In order to promote public participation inlegal drafting processes and solicit communityinput, DPRA members are required to takerecess in order to “discover the aspirationsof the people”.68 Recess periods can last upto 15 days and DPRA members will takerecess four to five times in a year. However,some commentators have noted that, apartfrom the very public debate that was heldregarding the draft LoGA, the level of publicinput solicited before qanuns are promulgatedis generally very low.69 This appears to bedue to a lack of resources needed for members

63 Membership of DPRA is made up of a Chair man, 3 Vice Chair men, 11 GOLKAR representat ives, 11 representat ives fromPar ta i Pe r s a tuan Pembangunan (PPP) , 8 representa t ives f rom Par ta i Amana t Nas i ona l (PAN) , 8 representa t ives f rom Par ta iBin tang Re f o rmas i (PBR), 8 representat ives from Par ta i Bu lan Bin tang (PBB) , 7 representat ives from Par ta i Kead i lan Se jah t e ra( P K S ) , 6 r e p r e s e n t a t i ve s f r o m Pa r t a i D e m o k r a t ( P D ) f a c t i o n , a n d 5 r e p r e s e n t a t i ve s f r o m Pe r j u a n g a n U m a t ( P U ) .

64 These are the General Affairs Division, Trial and Minutes Division, Law and Regulations Division, Public Relations and ProtocolDivis ion, and Finance Divis ion.

65 Inter v iew, DPRA Secretar y, 12 Apri l 2006, Banda Aceh. Commiss ions of the DPRA include: Commiss ion A, Secur i ty andPolicing; Commission B, Economic Affairs; Commission C, Financial Affairs; Commission D, Development Affairs; CommissionE, Aceh’s Special Ter r i tory and People’s Welfare; DPRA NAD Counci l for Design and Study; DPRA NAD Honorary Counci l .

66 Supervision and control can also be exercised by a Special Committee or Pansus (Panit ia Khusus) which is an ad hoc instrumentof the DPRA for med to handle specif ic problems. A Pansus can conduct overs ight when, according to infor mat ion receivedfrom the public, there is strong suspicion of irregularities or infringement being made by the government. The DPRA Secretariata t tempts to i ssue infor mat ion on the act iv i t ies of the DPRA, in cooperat ion wi th a publ i sh ing company, for example bypublishing news about the Parl iament in the weekly tabloid, Modus.

67 Article 26(2)d of the LoGA.

68 Interview, DPRA Secretary, 12 Apri l 2006, Banda Aceh.69 Arskal Sal im provides an interest ing analys is in which he argues that publ ic aspirat ions are, for a l l intents and purposes, not

ref lected in legal drafting processes because of the control over drafting processes of qanun exercised by Acehnese ulamas fromrural areas : Arskal Sal im, Is lamising Indonesian Laws? Legal and Pol i t ica l Dissonance in Indonesian Shar i ’a , 1945-2005 (PhdDisser tat ion, Melbourne University Faculty of Law, 2005), pp. 201-203.

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to travel to the field to solicit grassroots input,as well as a predominant paradigm amongmembers that does not consider publicparticipation a priority step of the legislativeprocess.

Additionally, the capacity of DPRA membersin legal drafting (more precisely, redraftingproposed qanuns and ensur ing the i rharmonisation with higher laws) variess ignif icant ly. According to academicsinterviewed, DPRA members are often notuniversity graduates and lack experience ingovernment as wel l as Nat ional andConstitutional Law.70 In order to improve thecapacity and skills of DPRA members in thearea of legal drafting, each year the DPRASecretariat sends 5 to 10 members of theDPRA to attend a workshop on legal draftingheld in Jakarta. However, over ninety percentof DPRA members continue to lack basicknowledge about legal drafting processes, aproblem that is compounded, as somecommentators have noted, by the introductionof “impractical religious stipulations” intolaw made by Syariah jurists and Acehneseulamas.71

While the Syariah justice system is discussedin more detail in the following section, it mustbe noted here that the potential for expansionof the Syariah Courts’ jurisdiction throughqanuns may add a significant workload onDPRA members. Cons ider ing DPRAmembers’ weaknesses with legislative draftingand limited knowledge about national lawsand Constitutional Law, there is a danger thatnew qanuns ratified by the DPRA will containlegal inconsistencies with higher laws.

Regarding budgeting, DPRA Commission Bdeals with economic affairs. As such, itsmembers are responsible for estimating annualbudgets for all government institutions in theProvince of Aceh. Interviews with DPRACommission members and academics thathave been requested by the DPRA to assistin budgeting activities indicate that membershave inadequate experience in or knowledgeof budgetary drafting processes.72 As aresult, several dangers exist that include:misallocation of funds that do not addresslocal development or governance needs, slowand inefficient budgeting and planning fordevelopment and reconstruct ion, andexecutive control of budgetary allocations.

Human Rights Court

Since the signing of the MoU, there has beenmuch debate concerning the establishment,structure and jurisdiction of a Human RightsCourt (HRC) to try the numerous humanrights violations that have occurred in Aceh.Article 228 of the LoGA provides somenorms or legal basis for a framework withwhich to address such violations. It states :

1. To investigate, try, decide on and resolvea case of a human rights violation thathas occurred after the promulgation ofthis Law, there shall be established aHuman Rights Court in Aceh.

2. Decisions of the Human Rights Courtin Aceh, as referred to in clause 1,include, among other things, grantingcompensa t ion , r e s t i tu t ion and/orrehabil itation to the victims of thehuman rights violations.73

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70 Interview, Academics, UNSYIAH, 12 Apri l 2006, Banda Aceh.

71 Arskal Sal im, Is lamising Indonesian Laws? Legal and Polit ical Dissonance in Indonesian Shari ’a , 1945-2005, p. 201.

72 Interview, DPRA Secretary, 12 Apri l 2006, Banda Aceh. Interview, Professor of Law, UNSYIAH Faculty of Law, Banda Aceh.

73 Author’s translat ion.


National Law 26/2000 on Human RightsCourts also provides norms with which humanrights violations in Aceh can be addressed.Thus, there is some local legal basis withinIndonesia and Aceh, more specifically, fortrying such crimes. Section 6.2 will discussthe effectiveness of these legal bases foraddress ing human r ights v io l a t ions.

Truth and ReconciliationCommission

As with the HRC, there has been much debateas a result of the conflict on the establishmentof a Truth and Reconciliation Commission(TRC) for Aceh. Article 229 of the LoGAprovides the most recent legal basis for the creation of such an institution. It states:

1. To pursue truth and reconciliation, thisLaw shall establish a Truth and Recon-ciliation Commission in Aceh.

2. The Truth and Reconciliation Commissionin Aceh referred to in clause 1 shall notbe separate from the (national) Truth andReconciliation Commission.

3. The Truth and Reconciliation Commissionin Aceh shall operate based on the legis-lative regulation.

4. In resolving cases of human rights vio-lations in Aceh, the Truth and Recon-ciliation Commission in Aceh can consideradat principles that are practiced amongcitizens.

Article 230 proceeds to state that the func-tions, structure, appointment of Commis-sioners, and budget will be specified by qanunbased on existing legislation. The referenceto existing legislation here and ‘legislativeregulation’ in article 229(3) is a reference toNational Law 27/2004 on Truth and Recon-

ciliation Commissions. As with the HRC,the effectiveness of the existing normativelegal framework (both within Aceh, in theform of the LoGA, and nationally, in theform of Law 27/2004) to achieve truth andreconciliation in Aceh after nearly threedecades of civil war will be discussed later,in section 6.2.

3.2 Syariah Law

The development of the Syariah justice systemin Aceh cannot be detached from theProvince’s status as a ‘special region’. Whilethe Syariah justice system’s emergence in Acehdates as far back as the sixteenth century,74

Syariah Courts were only recognised in theProvince by the post-colonial NationalGovernment in 1957 through Law 29/1957.In 1989, in an effort to harmonise legalsystems across the Indonesian archipelago,Law 7/1989 on Religious Judicature waspassed under the New Order Regime, whichrenamed the Syariah Courts of Aceh as‘Religious Courts’.

In an effort to pacify the civil war in Aceh,the GoI later stipulated the status of Acehas a ‘special region’ under Law 44/1999. Oneof the bases of this provision was the uniquereligious life of the Acehnese community,including the placement of ulamas (Muslimreligious scholars) as highly respectedcommunity leaders.75 In the area of religiousaffairs, Article 4 (1) of the Law designatingAceh as a ‘special region’ permits the imple-mentation of Syariah Law.

In further attempts to resolve the conflict(and as part of post-Suharto democraticreform efforts termed reformasi in Indonesia),the GoI further decentralised governance in

74 See, A.D.A. de Kat Angelino, Colonial Policy (The Hague: Martinus Nijhoff, 1931), p 178; Amirul Hadi Amirul, Islam and Statein Sumatra: A Study of Seventeenth-Century Aceh (Leiden: Bri l l , 2004), pp. 209-216.

75 Ar t ic le 3(2) of th is Law st ipulates that th is spec i f ica l ly covers the f ie lds of re l ig ious l i fe implementat ion, t radi t iona l l i fe ,education, and the role of the Moslem leader in the st ipulat ion of regional pol icy.

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Aceh through Law 18/2001 concerningSpecial Autonomy for Aceh. This Lawpermitted the re-establishment of SyariahCourts in Aceh, but did not specify thejurisdiction that these courts would assume.Consequently, in 2002, the DPRA passedQanun 10/2002 on Syariah Law, giving theSyariah Courts rather vague but very expansivejurisdiction over the following types of cases:ahwal al-syakhshiyah (religious judicature),mu’amalah (civil) and j inayah (criminal).The Qanun does not specify the types ofoffences intended but the three categoriescan potentially include all of the below:

- Ahwal al-Syakhshiyah - covering mattersregulated in Article 29 Law 7/1989concerning Religious Judicature, except for religious donations (wakaf), gifts (hibah)and alms (sadaqah).

- Mu’amalah - covering laws on goods andbonds like buying and selling, as well asdebts, capi ta l (qi radh ) , ag r icul tura lproduction sharing (mukhabarah), proxy(wakilah), consortium (syirkah), loans(ariyah), wealth confiscation (hajru), landright (syuf ’ah) pawning (rahnun), landopening (ihyaul mawat), mining (ma’din),weavings ( luqathah), banking, leasing(ijarah), labour, wealth from robbery,donations (wakaf), gifts (hibah), alms(sadaqah) and presents.

- Jinayah – covers three categories of crimes.(i) Hudud crimes carry specified sentencesto be found in the Qur’an, and includeadultery, false accusation or libel (qadhaf),stealing, robbing, drinking alcohol (khamar)and narcotics, psychotropic substancesand other addictives (napza), apostasy,revolt (bughat). (ii) Qishas / diat crimescover murder and mistreatment, and are

punishab le through re ta l i a t ion orcompensation. (iii) Ta’zir crimes includegambling, indecent acts, and not carryingout obligated prayers or the fast duringRamadhan. There are no specified sentencesfor these crimes and punishments areleft to the discretion of a Syariah judge.

Concern that this potentially all-encompassingjurisdiction would lead to confusion with theGeneral Courts or undermine them altogetherled to Presidential Decree 11/2003. Thisasserted that the Syariah Courts wouldmaintain the same jurisdiction as the formerReligious Courts, which essentially coveredfamily and property law, with the additionof cases relating to ibadah (ritual worship)and syi ’ar (promoting the greatness ofIs lam) . However, in 2004 , Dec is ionKMA/070/SK/X/2004 of the SupremeCourt Chief Justice authorised a ‘spill-over’(pelimpahan) of jurisdiction from the GeneralCourts to the Syariah Courts in Aceh, onceagain endorsing an expanded jurisdiction forthe latter. The Decision stated that the spill-over would cover an increased number ofmuamalat (civil) cases, as well as some jinayah(criminal) cases, provided the DPRA hadpromulgated qanun to that effect. ThisDecision clarified earlier confusions regardingthe extent of the Syariah Courts’ jurisdiction.In article 128(4), the LoGA confirmed thenecessity for qanun to promulgate specificSyariah codes. Legislators, Dinas SyariatIslam officials and judges have suggestedthat there are plans to expand the Syariahjurisdiction through qanun in the near future.76

The DPRA has indeed promulgated additionalqanun to expand the number of offences thatSyariah Courts may examine. These include:

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76 Interview, Chairman of Lhokseumawe Syariah Cour t , 19 January 2006, Lhokseumawe.


· Q a n u n 1 1 / 2 0 0 2 r e g a r d i n g t h eImplementation of Syariah Law in theFields of Aqidah (correct belief), Ibadah( r i tua l worsh ip) , and Sy i ’ a r I s l am(promoting the greatness of Islam);

· Qanun 12/2003 concerning Khamar (liquor);

· Qanun 13/2003 concern ing Mais i r(gambling); and

· Qanun 14/2003 concerning Khalwat(illicit relations).

Qanun 10/2002 (article 4) dictates that thefirst-instance Syariah Courts are to be locatedin the district or municipality capital and theirjurisdiction covers that district or municipality.Appeals proceed to the Provincial SyariahCourt (article 6), which is situated in BandaAceh. Furthermore, existing autonomy lawsand Constitutional Law stipulate that theSyariah Courts remain subordinate to the legalauthority of the Supreme Court as the finalcourt of cassation and that Syariah Law mustbe consistent with Constitutional Law.

The national laws have generally been clearabout the fact that Syariah Law in Aceh appliesonly to Muslims. Article 25(3) of Law 18/2001on Special Autonomy clearly states this.However, the provincial qanun passed laterdo not reaffirm this and, for some time duringdeliberations of the draft LoGA, localulama argued that Syariah Law should applyto every person in Aceh. The large Chinese,Indian and, more recently, international(humanitarian) presence in Aceh contestedthis.

The promulgation of the LoGA in July 2006appears, at first glance, to provide clarity onthis subject via article 126, which states that

Syariah Law will apply only to Muslims,although non-Muslims must respect it and itsimplementat ion. However, ar t ic le 129concerning the jurisdiction of the SyariahCour ts, s tates that “a l l non-Musl imscommitting jinayah (criminal) offences thatare not governed by the National CriminalCode or other criminal offences that are notgoverned by the National Criminal Code willbe subject to the law that governs jinayahoffences.”77 While the precise meaning hasyet to be formally clarified, the article suggeststhat non-Muslims will be subject to Syariahlaw for committing, for example, the Syariahoffence of khalwat (illicit relations), in spiteof the fact that it is not a crime under theNational Criminal Code. This means that, inpractice, article 126 that extends Syariah onlyto Muslims in Aceh is irrelevant. However,there is on-going debate as to the precisemeaning and implications of this article andit is yet unclear how the Courts andsubsequent qanuns will interpret it.

A legal framework exists for the establishmentof the Wilayatul Hisbah (WH) in Aceh as well.The WH is a governmental body establishedby Governor’s Decree 1/2004 on theEstablishment and Functions of the WH andadministered by the Dinas Syariat Islam. TheWH is responsible for monitoring Syariahconduct and compliance to Syariah Law withinAcehnese society. They do not currently haveenforcement powers but are authorized toprovide moral guidance. Qanuns 12, 13 and14 / 2003 on Alcohol, Gambling and ImmoralActs called for the formation of the WH.However, this was not achieved unti l2004, wi th the promulgat ion of theabove-ment ioned Governor ’s Decree.Organizationally, the WH exists at the

77 Author’s translat ion.

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provincial, district/municipal, subdistrict,mukim and village levels. Staffing of the WHconsists of a head, deputy head, secretary,and the muhtasib (officers of WH). WH at themukim level consists of a coordinator andseveral muhtasib that are meant to serve atvillage level. While this means that severalpeople from the WH can be present in everyvillage throughout Aceh, the assessmentrevealed that the current organizationalstructure of the WH only extends to districtlevel. However, the WH will travel to villagesi f ca l led upon. Administrat ive ly andfunctionally, the WH reports to the DinasSyariat Islam, rather than the Syariah Court.As such, the WH is under the authority ofthe provincial government, rather than thecentral government.

In order to be appointed as a muhtasib, acandidate has to meet the fol lowingrequirements: be an Indonesian citizen; befaithful to Syariah Law, Pancasila and theIndonesian Constitution; be able to leadcommunal prayers; be honest, just, andauthoritative; and have passed muhtasibeducation and training. Recruitment is carriedout by the Governor and Regent/Mayorthrough the Dinas Syar ia t I s lam af terconsultation with the local MPU.

Governor’s Decree 1/2004 establishing theWH stipulates that its role includes: a)providing guidance and spiritual advocacy,including informing the public of qanunrelating to Syariah Law; b) monitoringcompliance of Syariah Law; c) rebuking,warning and providing moral guidance tothose suspected of violating Syariah Law; d)

trying to stop activities/conduct suspectedof violating Syariah Law; e) settling violationsthrough a Gampong Adat Meeting (Rapat Adat);and f) transferring violations of Syariah Lawto the police who are legally responsible forconducting investigations of criminal offences.

3.3 Adat

The Indonesian term adat refers to culturally- and ethnically-specific forms of law (hukumadat) or custom (istiadat). It is the largely un-codified body of rules of behaviour or asystem of “community leadership andgovernance”, enforced by social sanctions,which is utilised, among other things, fordispute resolution.78 It consists of livingnorms, respected and recognised by people,and acts as society’s code of conduct. In Acehtoday, it is also a symbol of local autonomy.

It is important to understand the normativelegal framework surrounding adat because, asthe assessment found, adat continues to bethe justice system upon which Acehnesepredominantly rely for resolution of theirgrievances. The normative legal frameworkgoverning adat in Aceh today consists of thefollowing laws: the Constitution; Perda 7/2000on the Establishment of Adat Life; Qanun4/2003 on the Mukim Governance Structures;Qanun 5/2003 on the Gampong GovernanceStructures; and the LoGA.

Under Suharto, the GoI passed National Law5/1979 on Local Government to create astandardized national village governancestructure. The structure gave authority to newadministrative leaders in villages, replacingthe traditional adat leaders. In many instances,

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78 World Bank, Interim Report: Justice for the Poor Program: Research Paper on Community Access to Justice and Village JudicialAutonomy (World Bank Social Dvevelopment Office, Jakar ta, 2004), pp, 2-3.


the adat leaders actual ly assumed theadministrative post themselves. However, inother instances, the new structure led to aweakening of the adat system or at leastcreated a dichotomy of leaderships in villages.

Article 18(b)1 of the first amendment to theConstitution states:

The state acknowledges and honourstraditional legal community units andits adat rights as long as this is stilll iv ing and in accordance w i thcommunity development and theprinciple of the unitary state of theRepublic of Indonesia, regulated bylaw.

In recognition of Acehnese culture and its‘special status’ following 1999, the ProvincialGovernment of Aceh passed Perda 7 / 2000on the Establishment of Adat Life. This lawacknowledged the role of adat institutions invillage leadership. For example, it employsthe Acehnese adat term keucik to refer to thevillage head, rather than the Indonesian termkepala desa. In article 5(2), the law lists thedifferent adat institutions. The most importantfor adat dispute resolution are listed here:

- Imam Mukim: the head of a mukim(a subdistrict administrative level thatonly exists in Aceh. Traditionally, amukim covers all the villages that arelinked to the main mosque in the area.

- Keucik: the head of a gampong (village).- Tuha Peut (in Gayo: sorakopat) : a village

level governance body traditionallyconsisting of four members whooversee issues in the areas of law andreligion.

- Tuha Lapan: a village level governancebody traditionally consisting of eightmembers who oversee economic anddevelopment issues.

- Imam Meunasah: the head of the villagemosque.

Article 6 of the Perda states that the functionof adat institutions is to settle social problemsat the community leve l and mediatedisputesbetween community members. Article10 requires the police to give opportunity tothe imam mukim and the keucik to settledisputes at the mukim and village levels beforeconducting investigations and forwardingcases to the Prosecutor’s Office.

The practices and rituals of adat vary, mostnotably across ethnic groups.79 Perda 7/2000recognizes different adat institutions, laws andcustoms at village level, so long as they donot contradict Syariah Law.80 Additionally, ascodified law, national legislation takesprecedence over adat law in the case ofinconsistencies.

To further set out the role of adat institutions,Qanuns 4 and 5/2003 on the Mukim and Gam-pong Governance Structures, respectively, werepassed. Qanun 4/2003 on the Mukim Govern-ance Structure defines the role of the mukim.Article 4 states that the imam mukim’s functionsrelate to all governance matters at village leveland issues relating to harmony and orderin society. To this end, the imam mukim isgiven the authority to facilitate disputeresolution and implement adat law. Animportant difference is the scale and scopeof problem solving with an imam mukimcovering a wider geographic area, thusallowing it to handle conflicts between

79 Matt Stephens, ‘Local-level Dispute Resolution in Post-Reformasi Indonesia: Lessons from the Philippines’ (2003) 5(3) AustralianJournal of Asian Law 213, p. 222.

80 Interest ingly, adat and Syar iah law can often be synonymous as interpretat ions of Syar iah often ref lect local custom and habitand vice-versa. Also, tradit ional ly in Indonesia , “reception theory” has appl ied in that Syar iah would only apply to the extentt h a t i t w a s n o t i n c o n s i s t e n t w i t h a d a t l a w. T h i s P e r d a c o n s e q u e n t l y i m p l e m e n t s “ r e v e r s e r e c e p t i o n t h e o r y ” .

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villages. The types of disputes can include,for example, a herd of cows owned bypeople from one village destroying paddyfields owned by people from a neighbouringvillage.81

Meanwhile, article 12(1) of Qanun 5 / 2003on the Gampong Governance Structure statesthat “the dut ies and respons ib i l i t iesof keucik include:(f) acting as Judgeto resolve disputesbe tween v i l l ag -ers.”82

T he LoGA in -cludes a provisionon adat institutionsas well. Article 98(1) states: “Adatinstitutions func-tion and act as avehicle for civicparticipation in theestablishment andr unning of theGovernments ofA c e h a n d o fDitricts / Munici-palities in the fieldsof safety, security,harmony and social

order.”

3.4 Oversight and Monitoring

Having discussed the normative legal frame-

work of formal and informal justice systems

in Aceh, this section turns to the institutionsin place that are intended to act as oversightand monitoring mechanisms to ensure thefair and effective functioning of this frame-work; that is, to ensure that this frameworkoperates in a manner that enhances citizens’access to justice. Earlier peace agreements inAceh suffered in part due to inadequateg overnment overs ight mechanisms. 8 3

However, recent GoIrefor ms have thepotential to create aso l i d founda t ionupon which to over-come this ear l ierweakness. These in-clude – at the na-tional level - the es-tablishment of, first,a C o n s t i t u t i o n a lCourt empowered toconduct const i tu-t ional reviews oflegislation and dis-pute resolution be-tween state institu-tions and, second, anindependent JudicialC o m m i s s i o n t ooversee issues of ju-dicial ethics.84

It is not within the scope of this assessmentto examine the strengths of these abovereforms in overseeing the normative legalframework of justice systems in Aceh.The assessment does, however, examinethe strengths of two institutions that various

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81 Inter v iew, Imam Mukim , 23 Febr uar y 2006, Pid ie ; see a lso “Ternak Tetang ga Makan Has i l Kebun (Herd of Cow Owned byNeighbors Eat and Destroy f ie ld)”, a case mentioned in the interview.

82 Author’s translat ion.83 See also, ICG, Aceh: A Fragi le Peace (Jakar ta/Brussels : Asia Report no 47, 27 February 2003), p. 5.84 Drawn from, Sat ish Mishra, ‘ Indonesia ’s Systemic Transi t ion: Reasons for Optimism’ , Presentat ion at “The Quest for Good

Globa l Governance” (UNDP/UNSFIR, [no date ] ) Workshop organized by the Monash Governance Research Uni t , p. 14 .

BRR poster encouraging the use of adat mechanisms to

resolve disputes


8 5 KPK, Bring Indonesia Free From Corruption: Annual Repor t 2004 (Jakar ta: Republic of Indonesia , KPK), p. 4. Coordinat ionact iv ies to prevent cor rupt ion are meant to occur with the Attorney’s Genera l ’s Off ice, the Inspector Genera l ’s Off ice, thePolice, and the Financial Development and Supervisory Board, among several others.

86 For more detai ls see, KPK, Bring Indonesia Free From Corruption: Annual Report 2004, pp. 9-34.87 Interview, KPK personnel , March 2006, Banda Aceh.

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respondents suggested may be of particularimportance for the oversight and transparencyof justice institutions in Aceh. Theseinclude the Komisi Pemberantasan Korupsi (KPK,Corruption Eradication Commission) and theOmbudsman’s Commission.

3.4.1 Corruption Eradication ...........Commission

The authority and the functions of thenational Komisi Pemberantasan Korupsi (KPK)are stipulated by Law 28/1999, Law 31/1999,Law 20/2001, and Law 30/2002. Althoughlaws calling for the eradication of govern-mental corruption date back to 1999, theKPK was only established in 2004 and is stilldeveloping its own internal capacities tosuccessfully implement its mandate. Article6 of Law 30/2002 stipulates that the KPKis to:

a) Coordinate with other institutionsauthorized to eradicate corruption;

b) Supervise institutions authorized toeradicate corruption;

c) Perform pre-investigations, investigations,and prosecutions against corrupt acts;

d) Perform preventive actions againstcorruption; and

e) Monitor state governance.85

In this respect and because – as will bediscussed in Chapter 5 – corruption remainsa significant obstacle to access to justice inAceh, the KPK is an important institutionfor monitoring the normative legal frameworkof justice systems.

The KPK’s strategy for eradicating corruptionconsists of institution-building, prevention,repression, and rallying for public support.86

In Aceh, the KPK has thus far had minimalimpact. Currently, it has a limited mandateto implement functions in the field, with asmall presence of two junior staff in a newlyestablished office in Banda Aceh. KPK per-sonnel only receive reports of corruption andthen pass those reports along to its NationalOffice in Jakarta for further consideration.87

It is currently further constrained by the factthat KPK officials at the national level (prob-ably quite justifiably) fear “growing too fast”as an institution and worry that “losingcontrol” of its personnel at regional levelscan introduce opportunities for corruptionwithin the organisation itself.

The limited scope of KPK investigations inAceh thus far is also due to a national level

BOX 8: INTER-VILLAGE DISPUTE RESOLUTION – THE ROLE OF THE IMAM MUKIM

X was trying to find crabs around a fishpond. Catching crabs for a living is a common activity among villagersthat is not protested by local fishpond owners. However, when the owner saw X, he accused her of stealing fish,The family of the fishpond owner felt offended and planned to assault the neighbouring village from which Xcame, and gathered people to attack. Meanwhile, the neighbouring villagers heard about the plan and preparedto defend themselves. Realizing that a big problem was developing, a person from one of the villages suggestedthat the problem be solved by village elders. To solve the problem, the elders approached the families and invitedthe mukim to help them solve the problem.

The mukim approached both families with help from elders in both villages. At first the families could not reachan agreement and wanted to go to the police, but after advice from the mukim and village elders they were ableto find a solution and sign a peace agreement. There have not been problems between the villages since that time.

Village TA6.


policy within KPK to direct its primary effortsat national-level court judiciary.88 The rationaleis that, to deter misconduct and corruptionwithin government, one must first have judi-cial services that will conduct genuine inves-tigations and that will impose “real” penaltiesupon convicted officials. For this to occur,the judicial services must first be “cleaned”.While this is logical, parallel bottom-upefforts to eradicate corruption at the provin-cial level can support national top-down ini-tiatives to enhance citizens’ access to justice.

3.4.2 Ombudsman’s Commission

The assessment found that justice forAcehnese – in the tsunami recovery and post-conflict setting – means more than legal re-dress and instead weighs greatly towards therealisation of socio-economic rights. An over-whelming number of citizens’ justice-relatedgrievances centred on the inefficient deliveryof government services (e.g. food and oilrations, housing assistance, issuance of officialletters and certificates, etc.) due to corruptionand discrimination. In spite of this, no mech-anisms currently exist in Aceh to demand the

accountability and transparency of publicservice providers. While formal actor respond-ents stated that they are open to receivingcomplaints from citizens regarding unsatis-factory provision of services, very few hadformal mechanisms through which to do soand no independent mechanisms throughwhich to process complaints. Thus, whilejustice sector reform is necessary to enhanceaccess to justice, it is arguably not sufficientfor the expedient promotion of accounta-bility of government services. On the otherhand, a monitoring mechanism in the formof an ombudsman’s function could act topromote transparency and accountability ofa broader spectrum of government services.

Presidential Decree 44/2000 encourages theestablishment of regional ombudsmans’offices. No such office yet exists in the Prov-ince of Aceh.89 Given high levels of corrup-tion and ineffective service delivery found inAceh ’s publ ic admin is t ra t ion , whichextends into the justice system (discussed insubsequent chapters), oversight of publicservice delivery is important to promotecommunity access to justice.

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88 Interview, BRR Officia l , February 2006, Banda Aceh.89 There are a number of nat ional level monitoring and oversight init iat ives that could contribute to enhancing access to just ice

in Aceh were their regional level counterpar ts to be established. Besides the Ombudsman’s Office, other init iat ives include theJudiciary and Police Review Commissions.


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Chapter 4Legal Awareness of Justice Systems


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Chapter 4 - Legal Awareness of Justice Systems

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Earlier studies have established that a largeproportion of Indonesian citizens, particularlythose with no or little formal education,are unaware not only of laws that may berelevant to them, but also of their legal rights,services.90 This assessment found a similarlack of legal awareness among village levelrespondents in Aceh. Vulnerable groupshave perceptibly lower legal awarenessbecause they are often illiterate and haveless access to sources of information.91

This, in turn, further disadvantages them.Moreover, the level of citizens’ legal awarenessdirectly influences their perceptions of thelaw. For disadvantaged groups and commu-nity members more broadly to seek effectiveand fair resolutions for justice grievances,there needs to be sufficient informationdisseminated in a manner that is understoodby target audiences and that will empowerthem to seek resolution of their grievancesunder the law.92

90 As ia Founda t ion , Sur vey Repor t on C i t i zens ’ Percept ions o f the Indones i an Jus t i ce Sec tor : Pre l iminar y F ind ings andRecommendations (Jakar ta: Asia Foundation and AC Nielson, August 2001), p. 23.

91 UNDP, Programming for Just ice: Access for All , p. 140.

92 Ibid.


LegalAwareness





TABLE 3: KEY FINDINGS: LEGAL AWARENESS

- Community legal awareness of laws, rights and procedures is low.

- State institutions engaged in awareness raising activities lack resourcesand capacity to effectively disseminate information on national law.

- NGOs conducting awareness raising activities lack capacity and tendto be focused on urban areas.

- State institutions engaged in awareness raising activities lack resourcesand capacity to effectively disseminate information on Syariah Law.

- Most CSO awareness raising activities on Syariah promote appropriatemoral behaviour instead of individual rights under the law.

- Fluid, oral and un-codified nature of adat means that communitymembers are often not entirely aware of its customs and processes.

- Other factors, including urbanisation and growing awareness and reliance(compared to earlier generations) of formal justice systems, have degradedcommunity level understanding about adat.

General JusticeSystem


Adat


This chapter examines assessment findingsrelating to citizens’ legal awareness vis-à-visthe different justice systems (General, Syariahand adat) and the obstacles duty-bearers(including civil society organisations thathave assumed a role to raise legal awareness)encounter with raising legal awarenessamong community members.

4.1 Legal Awareness and the General Justice System

The assessment revealed that legal awarenessremains low amongst community membersand severely affects citizens’ ability to access,in particular, formal channels of justice. Theassessment identified a range of legal issuesin which citizens had weak legal knowledge.First, many citizens do not know that theyhave a right, which is enshrined underIndonesian Constitutional Law as statedabove, to choose between utilizing adat or the

formal justice system to resolve disputes.They have very little knowledge of their rightsunder national law and how to access thechannels that can provide them those rights.As a consequence, they perceive adat justiceproviders (in particular, the keucik) to be theonly mechanism or, at least, a compulsoryfirst ‘port of call’ through which they canclaim their rights. Connected to this lack ofknowledge of alternative dispute resolutionchannels is the fact that citizens’ awarenessof the existence of legal aid facilities is verylow (largely because these facilities are centredin district capitals).

Second, land and property owners in villageswere often unaware of the benefit ofregistering land ownership and believe thatadat law remains sufficiently strong to protecttheir rights over their property. Notably, thiswas often the case in isolated or rural tsunami-and conflict-affected areas. Yet, because adatis not binding, the assessment also foundinstances of citizens being unable to claimcompensation for both tsunami and conflict-induced lost or damaged land and propertybecause they lacked official title.

Third, a majority of women did not know orunderstand that registering their marriagesand divorces can afford them legal protectionin terms of, among other things, custodianshipof children, ownership of property and theright to receive continued assistance (alimony)after a divorce. Women in many areas visitedby the assessment relied on customaryprocedures of marriage and divorce witnessedand sanctified by a village religious leader,which are inadequate under national law formany of the woman’s rights to be protected.Others, particularly with divorce, did not evendo this, rendering the woman with ambigu-ous marital status and no legal protection.

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BOX 9: COMMUNITY LEGAL AWARENESS

“We are afraid to claim our rights, because we donot know the laws, we are afraid to act wrongly. Ifwe report, they do not care, so we have lost ourenthusiasm.”

FGD, Landless men, Village TA5.

“We don’t know! If we want to go to court, wheredo we have to go first?”

FGD, Widows, 7 February 2006, Village TA8.

“We don’t know what we’re doing; we are just simplepeople, not like the other women who dare to reporttheir plight.”Interview, Widows of Conflict, 22 January 2006, Village CA5.

“Where is the law official? What we know is onlyin the newspaper, about the Syariah Law, but whereis the custom law? Sometimes when we want tomake a rule, we think it will disturb someone else’srules.”

Interview, Keucik, 21 January 2005, Village TA4.


Additionally, respondents often did not knowthat domestic violence constitutes a seriouscrime under national law. As one formal actorrespondent stated, “People’s level of educationis very low…They do not know that hittingone’s wife is a form of violence and think itis something normal.”93

A fourth example of low legal awareness isfound with regards to awareness of assistanceprogrammes that are available. One examplecan be found with women who have becomewidows because of the conflict, known inAcehnese as inong balee. After the CoHAin 2002, the GoI ag reed to disbursecompensation or diyat (blood money) to inongbalee. The GoI had collected data of thenumber of inong balee and had begun to issuepayments when the CoHA failed. Nevertheless,many inong balee were entirely unaware of theirright to such assistance.

Finally, the majority of citizens are unawareof the actual roles and responsibilities ofdifferent justice providers. This renders themvulnerable to extortion when providersdemand money for the provision of services.Citizens, including those in urban areas, areespecially unaware of the powers of theWilayatul Hisbah , a governmental bodyestablished to monitor adherence to Syariahlaw in Aceh, believing that they have powersof arrest, which they do not.94

In conclusion, the assessment revealed weakcommunity legal awareness among citizens,particularly among already disadvantagedgroups, thereby further disadvantaging them.

Legal Awareness Raising

A government programme established to raisecommunity awareness about human rights isthe Rancangan Aksi Nasional Hak AsasiManusia (RANHAM; National Human RightsAction Plan). RANHAM II (2004 – 2009)was passed by Presidential Decree 40/2004and, in Aceh, a provincial level RANHAMoffice was established in February 2005by Governor’s Decree 003/PKS/2005. Thefunctions of Aceh’s RANHAM committeeinclude:

- Es tab l i sh ing and s t rengthen inginstitutions to implement RANHAM;

- Contributing towards harmonizingregional laws;

- Dissemination of information andproviding education on human rights (including civil and political rights);

- Application of human rights normsand standards; and

- Monitoring, evaluation and reporting.

The provincial RANHAM Committee is madeup of representatives drawn from government,civil society and academia. However, variousproblems exist with its human rights awarenessraising and monitoring efforts due to a lackof funding and capacity weaknesses. At theprovincial level, RANHAM has been allocatedan annual budget of Rp 56 million (roughlythe equivalent of USD$5,500), thus leavingit grossly under-funded to carry out any ofi ts mandated funct ions. Addi t ional ly,administrative support personnel and regularstaff have also received insufficient training

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93 Interview, Police Official , 22 January 2006, Aceh Utara.

94 The W ilaya tu l Hisbah (WH) was establ i shed by Governor ’s Decree 1 / 2004 to monitor adherence to Syar iah . The WH areadministered by the Dinas Syar ia t Is lam and, whi le empowered to ‘guide’ c i t izens suspected of violat ing one of the cur rent lyexist ing four Syar iah qanun (on conduct ing one’s se lf in an Is lamic manner ( including mode of dress ing) , gambling, dr inkinga l coho l , and non -ha l a l r e l a t i on s ) , h ave no powe r t o conduc t a r r e s t s . T h i s powe r r ema in s w i th t h e g ene r a l po l i c e .


and lack the experience, skills, and know-ledge about Human Rights Law to effectivelysocial ize principles broadly. Thus far,GoI officials have demonstrated limitedcommitment to strengthen RANHAM.

According to officials from the organic policeservices, community members have an activerole to play in securing the rule of law.95 Tothis end, police attempt to conduct thefollowing legal awareness raising activities :

- Awareness raising of the MoU;

- Awarenes s r a i s i ng abou t l eg a lobligations to act as witnesses incourt proceedings when summoned;

- Awa r e n e s s r a i s i n g c o n c e r n i n gcommunity responsibility for self-help through village security systems(i.e., wanra - Perlawanan Rakyat; CivilDefense Force); and

- Awareness raising regarding the needto report criminal offences and nottake the law into their own hands (i.e.,preventing vigilantism).

However, only a small number of POLRES(district police) offices surveyed have madeprogress at introducing structured awarenessraising campaigns with communities. Currentad hoc efforts include discussion forums atvillage level every two weeks through meetingswith keuciks, camats and TNI personnel.96

However, besides lacking adequate financialresources, police officials note that thetrauma of conflict remains a significantimpediment to their conducting legalawareness raising activities because oflingering fear and mistrust toward GoIapparatus, including the police.

Several state institutions are mandated toconduct legal awareness raising activities toenhance people’s understanding of theGeneral just ice system. For example,respondents reported that the Prosecutor’sOffice in Aceh has, in the past, undertakenlegal awareness raising activities in the formof ‘legal guidance’ and the provision of ‘legalinformation’.97 Legal guidance is awarenessraising for people with little knowledge ofthe law, while legal information is training forpeople with at least a basic knowledge ofthe law. Legal guidance is based on theparticular needs of different communitiesrelating to prevalent local criminal activities(e.g., narcotics trading/usage), while legalinformation is more wide-ranging. During theplanning stage for legal guidance activities,representatives from the Prosecutor’s Officevisit villages and speak with local leaders toidentify the most pressing information needsrelating to criminal behaviour. Legal guidanceprograms are then developed based uponidentified needs at village level and, onceapproved by the village leadership, legalguidance programs are implemented byofficials from the Prosecutor’s Office. On theother hand, legal information is provided tocivil servants working in state institutionsmandated to conduct development activities.Legal information campaigns are frameda r o u n d a n t i - c o r r u p t i o n i s s u e s a n dstrengthening the public accountabilityof government officials.98

However, respondents explained that theOffice has encountered many problems inconducting these activities, in particular dueto limited staff numbers and a lack of

95 Interview, Chief of POLRES, 20 January 2006, Lhokseumawe; Interview, Chief of POLRES, 8 February 2006, Aceh Barat .96 The involvement of TNI personnel potential ly violates written law under the Constitution that st ipulates a separation of roles

between the TNI and the Police regarding civi l ian security functions. Addit ional ly, in several assessment s ites, i t seemed clearthat TNI involvement in ra is ing legal awareness can undermine the object ive of bui lding a harmonious relat ionship betweenthe pol ice and the populat ion and, byextension, successful ly implementing a community pol icing approach.

97 Interview, Head of Special Crime Unit of Banda Aceh Attorney’s Office, 8 February 2006, Banda Aceh.


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educational resources. The activities have thusbeen limited in terms of their geographicscope.99 Additionally, although prosecutorsreceive training to carry out these activities,a lack of operational funds means that notmany prosecutors are able to engage in skillstraining activities (i.e., the Attorney General’soffice in Jakarta provides training for 30prosecu tor s pe r yea r na t iona l l y ) . 1 0 0

As a result, current awareness raising activitiesemphasise legal obligations towards thestate rather than citizens’ rights.

Prior to a re-escalation of the conflict in1999, the General Courts also provided legaleducation to the population. According tocourt officials, these efforts primarily relatedto the obligations of citizens to bear witnessin criminal proceedings before the court.However, the conflict brought an end to thoseefforts and they have not resumed since.101

A further obstacle to promoting legalawareness about the General justice systemrelates to lingering security concerns fromthe conflict period. Several governmentofficials note that they remain fearful ofgoing into villages or subdistricts that wereheavily affected by the conflict and thathad a strong GAM presence.102

Respondents were critical that current legalawareness raising activities are focused indistrict capitals and do not extend tosubdistrict and village levels.103 This criticismcarries weight based on the assessmentfinding that community members in all but

2 of the 18 villages reported that they havenever participated in nor heard of any legalawareness raising activity. The overall resultis that villagers remain unaware of legal aidservices and do not have information on thecourt system. In short, the majority ofrespondents stated that there is a large needfor legal awareness raising.104

4.2 Legal Awareness and the ..Syariah Justice System

Village respondents’ legal awareness of SyariahLaw was perceptibly higher than theirawareness of laws of National Law and theGeneral justice system. This is perhaps notsurprising as Acehnese generally embraceIslam as a way of life so that principles ofSyariah Law, such as the prohibition againstalcohol and pre-marital relations, are taughtto Muslims from a young age and apply inevery day life. Nevertheless, respondents’awareness of how to redress grievancesthrough the Syariah justice system remainsweak.

Syariah Awareness Raising

Since granting special status for Aceh throughLaw 44/1999, the Provincial Governmenthas undertaken concerted efforts to raiseawareness among community members ofprovisions of Syariah that have been codifiedin Aceh (i.e., the qanun). Institutions workingto raise this awareness include the SyariahCourts, WH, Dinas Syariat Islam, Article 4(e)

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99 For example, in only 1 ( located in Banda Aceh) of the 18 vi l lages assessed was i t repor ted by community members that theyrece ived th i s type of l eg a l gu idance f rom government off ic ia l s and even then i t had been conducted severa l years ago.


101 Interview, Vice Chairman of Meulaboh Distr ict Court , 14 February 2006, Aceh Barat .

102 Interview, Meulaboh Court Judge, 14 February 2006, Aceh Barat .

103 Ibid.104 This is best ref lected in Appendix 5 under the heading of ‘act ion taken’ . Most vi l lagers that either took no act ion or had no

resolution of their g rievance at vi l lage level often expressed the need for legal awareness rais ing activit ies and the provisionof legal assistance.


of Perda 33/2001 on the Organisation andStructure of the Dinas Syariat Islam 105 MPU,106

and Kantor Urusan Agama (KUA; ReligiousAffairs Office).

Syariah Courts personnel have begun “goaround” campaigns in districts like AcehTengahto raise people’s awareness aboutSyariah Law, people’s rights in court, and howto access courts. In other areas, some SyariahCourt judges have promoted awarenessabout rights through preaching activities inmosques, or in community gatherings duringIslamic celebrations.

The Syariah Court in Aceh Tengah hasemployed a new strategy for raising awarenessby printing some 1,200 booklets on Syariahqanun for distribution to keuciks.107 TheProsecutor’s Office also plans to undertakeSyariah justice system awareness raisingactivities.

However, thus far, the geographic scope ofexisting activities remains limited. SyariahCour ts personnel ascr ibe the l imitedgeographic coverage to insufficient resources(e.g., vehicles and insufficient operationalfunds).108 An additional factor allegedlylimiting the effectiveness of existing awarenessraising activities has been poor cooperationbetween key state institutions such as theKUA, Syariah Court, organic police services,and the General Courts.109

4.3 Legal Awareness and Adat

Sources of information regarding adat includethe keucik, imam mukim, imam meunasah, tuhapeut and other adat figures. The uncodifiednature of adat means that it is typicallypassed down orally from one generation tothe next. However, the assessment identifiedseveral factors that impede villagers’ legalawareness about adat.

First, respondents in several villages notedthat the fluid nature of adat as oral customaryl aw t ends to sub jec t i t to va r y inginterpretations, renders it f lexible and,therefore, often difficult to pinpoint. Indeed,the assessment found that, in a significantnumber of villages, the adat leaders werethemselves unclear of not only adat laws andcustoms but the adat institutions as well. Forexample, few keuciks were able to explainprecisely how the institutions of tuha peut andtuha lapan function. This suggests either thatthere has been a substantial erosion ofpeople’s awareness of adat laws and customsor, alternatively and more likely, it confirmsthe fluid nature of these institutions and lawsand demonstrates that they cannot be rigidlydefined in the way that the concernedlegislation (i.e. Perda 7/2000) attempts to do.

Second, increasing mobility and urbanisationhas meant that younger generations aremoving away from their villages, weakeningthe ‘handing down’ of adat knowledge. Finally,

105 Article 4(e) of Perda 33/2001 on the Organisat ion and Structure of the Dinas Syar iat Is lam states “… the Dinas Syar iat Is lamshal l function to under take guidance [training] and awareness rais ing of Syariat Is lam .” [Author’s translat ion.]

106 According to MPU off ic ia ls, one of the MPU’s tasks is to “socia l ize Is lamic Laws to communit ies and related matters thatought to be prac t i ced by Mus l im fo l lowers” . In ter v iew, Secre ta r y of MPU, 26 Januar y 2006 , Takeng on, Aceh Tengah .

107 Interview, Dinas Syariat Is lam , 26 January 2006, Takengon.

108 Interview, Registrar Secretary, Syariah Court , 30 January 2006, Takengon, Aceh Tengah.

109 Interview, Head of Rel igious Affairs Office, 24 January 2006, Seunuddon.

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the assessment found in a number of villagesthat vi l lage respondents did not evennecessarily know who, besides their keucikand perhaps imam meunasah, other adat leadersin their village are. For example, many people,unless they had been involved directly ina dispute that was dealt with by these leaders,were unaware who their imam mukim was andwho constituted the tuha peut and tuha lapanin their villages. This is discussed furtherin the section on grievance handling.

Adat Awareness Raising

The primary government institution witha mandate to raise awareness of adat tocommunities is the Majelis Adat Aceh (MAA).As cus tod ians of ada t in Aceh , i t sresponsibility is to liaise with adat leadersat village and subdistrict level to enhancetheir knowledge and ensure that villagerstoo are aware of adat customs and habits.

However, the assessment found that, in villageassessment sites, the MAA is not activelyengaged in adat awareness raising. This is dueto a number of factors. First, according toMAA officials, they lack the resources toundertake field activities.110 Article 13 ofQanun 3/2004 on the Organisation andStructure of the MAA states that the MAAwill derive its funds from the APBD. Thesefunds have been limited presumably due tothe determination by the DPRA that theactivities of the MAA are not a priority.Second, academics interviewed by theassessment explained that, while neverexplicitly articulated, MAA posts are ‘rewardposts’ for retired civil servants. For this reason,almost all MAA officials are significantly

older, which – while garnering them respect– also means that they are less likely to accessthe field, as well as articulate concepts of adatin a manner that is comprehensible andappealing to younger generations. Finally, asstated above, any effort to raise awareness ofadat will be constrained by the fact that it isfluid, orally-based and differs from one areaand ethnic group to another. It is not aconstant code or common law in the way thatthe National and, even, Syariah Laws are.

4.4 Civil Society Organisationsand Legal Awareness . Raising

The role of government institutions in rai-sing legal awareness, as discussed above,has been limited due to a range of political,economic and institutional factors. However,the assessment found that civil societyorganisations (CSOs) have, to an extent,come in to fill the gap left by the GoI’sshortcoming. CSOs in Aceh constitutenon-governmental organisations (NGOs),community based organisations (CBOs),rel igious groups involved in self-helpactivities, community development andreligious education, student and campus-basedg roups compr i s ing of s tudents andintellectuals, and other groups, including themed i a and l abour o rg an i s a t i ons. 1 1 1

Civil Society and General LawAwareness Raising

The assessment found a handful of NGOsactive in legal awareness raising of NationalLaw. However, activities focused on womenand children’s rights, international human

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110 Interviews, MAA Officials, 23 January 2006, Aceh Utara.

111 Hadiwinata and Bantasyam, Civi l Society and Conf l ict Resolution in Aceh, pp. 9-22.


rights and, in tsunami areas, civil issues relatingto re-registering lost documents and property.The assessment did not identify activitiesto raise legal awareness of other criminaland civil cases and procedures.

The assessment found that NGOs involvedin ra is ing legal awareness on womenand children’s rights primarily deal withthe Domestic Violence Act and Children’sP r o t e c t i o n A c t . 1 1 2 A c e h ’s G e n d e rTransformation Working Group (KelompokKer ja Transformasi Gender Aceh; KKTGA) isone of the few organizations identified thatactively works at village level by providingassistance and counselling to female victimsof domestic violence. Other notable examplesof NGOs undertaking legal awareness raisingactivities in this field include: Mitra SejatiPerempuan Indonesia (MISPI, the Real Partnerof Indonesian Women), founded in 1998; andFLOWER, founded in 1986. Activities ofthese organizations are geared towardswomen’s empower ment and inc lude :

- Strengthening community organi-zat ions to engage in self-help;

- Conducting FGDs with women togather data and socialize women’srights and how to access legalprotection;

- Providing legal aid to communitymembers;

- Establishing and training paralegalgroups to provide legal assistance tovictims of gender-based violence; and

- Printing and distributing leafletsand brochures on women’s rights.

The assessment found a number of NGOswith self-declared mandates that include legal

awareness raising about Human Rights Law.One of the most well-known organizationsworking in this field in Aceh is the KoalisiNGO HAM (NGO Coalition for HumanRights) established in August 1998, whichbrings together over a dozen local humanrights NGOs.113 The Coalition’s currentorganizational network inside Aceh extendsto several districts: Aceh Timur, Aceh Utara,Pidie, Aceh Barat, Aceh Selatan, and AcehTengah.114 The Coalition’s mission is to:

- Raise public awareness about humanrights;

- Investigate and collect data abouthuman rights abuses;

- Carry out campaigns against humanrights abuses;

- Provide assistance to human rightsvictims both by litigation and non-litigation; and

- Urge central and local government totake responsibility for human rightsviolat ions and rehabi l i tate andgive compensation to the victims.

Several other NGOs involved in human rightslegal awareness raising include: Peduli HAM(Care Human Rights Foundation); LembagaBantuan Hukum (LBH, Legal Aid Foundation)Banda Aceh; TAMASYA (Tim Advokasi untukMasyarakat Sipil, Advocacy Team for Citizens);and PB HAM (Legal Aid and Human RightsCenter), which, operating in six districts, alsoacts as offices for Koalisi HAM.

However, the assessment found that NGOtrainings tend to refer to international humanrights instruments rather than placingemphasis on those instruments or principlesthat have been incorporated into National

112 Interview, Head of Sub-Section, Women Empowerment Bureau, 25 January 2006, Aceh Utara.113 Koal is i NGO HAM membership: 1)LBH Banda Aceh, 2) Walhi Aceh, 3) KKTGA, 4) Flower Aceh, 5) Sahara, 6) CDI, 7)

LPLHa, 8) LeUHAM, 9) SULoH, 10) Kontras, 11) Cordova, 12) YAB, 13) ADESA. Koalisi HAM also has several partnersorganizat ions: Aceh NGOs Coal it ion for Human Rights Profi le .

114 Interview, NGO HAM, 4 January 2006, Banda Aceh.

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BOX 10: ORGANIZATIONS ACTIVE IN RAISING AWARENESS OF SYARIAH117

- PII (mass organization)- Himpunan Mahasiswa Islam (HMI)- Pemuda Muhammadiyah- Partai Keadilan Sejahtera (PKS, political party)- Majelis Dakwah Islamiyah (MDI, mass organization)- Dewan Dakwah Islamiyah (DDI, mass organization)- Kesatuan Aksi Mahasiswa Islam Indonesia (KAMMI, Islamic student union)- Himpunan Mahasiswa Al-Wasliyah (HIMMAH, Islamic Student Union)- Muslimah Nahtdatul Ulama (women’s wing in Nahdatul Ulama)- Fatayat NU (young women’s wing in Nahdatul Ulama)- Gerakan Muslimah Indonesia (GMI)(mass organization)- Aisyiah Muhammdiyah (mass organization)- Badan Kontak Majelis Taklim (BKMT)(Islamic studies group for women led by wife of the governor)- Persatuan Ulama Seluruh Aceh (PUSA, All Aceh Ulama’s Union, mass organization)- Partai Persatuan Pembangunan (PPP, United Development Party, political party)- Partai Kebangkitan Banqsa (PKB, National Awakening Party, political party)

Law. Addit ional ly, NGO respondentsexplained that, while security and lack offunds were principal factors restrictingactivities during the conflict, the primaryproblems encountered with raising legalawareness today include lack of skilled andtrained personnel to conduct legal awarenessraising and exhausted capacity.115 That is,without adequate ski l led and tra inedpersonnel, NGOs are finding it difficult toexpand their operations. Indeed, most NGOshave offices at district capitals rather thansubdistrict, from where they venture as muchas possible to the subdistrict and village level.

The assessment further found that weak staffcapacities of many NGOs, as well as CBOs,have meant that the organisations relyupon i nd iv i dua l l e ade r sh ip f i gu r e srather than a consolidated staff base. Thisweakens the organisations communicationcapabilities; thus making them “recipients”of information and restricting their capacityto actively disseminate information.116

Civil Society and Syariah LegalAwareness Raising

The assessment found that civil societyactivities to raise legal awareness of Syariahare more prevalent than of the National Law.The following table lists groups involved inraising awareness of Syariah Law.

The above CSOs employ the following forumsand media to raise awareness of Syariah Law:Friday prayers, village meetings, in pesantran(Islamic boarding schools), by raising banners,participating in radio talk shows, organisingseminar discussions and workshops andpublishing and distri-buting materials aboutSyariah.118

However, discussions with respondents fromsome of the CSOs indicates that the focusof awareness raising efforts has been oncitizens’ obligations under Syariah Law,rather than citizens’ rights and how to accessjustice employing the Syariah system. Religious

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115 Interviews with vi l lagers and local NGOs.

116 UNDP, Civi l Society in Aceh: An Assessment of Needs to Build Capacity to Support Community Recovery, pp. 18-21.117 Aside from PUSA most organizat ions l is ted are nat ional ly based with l inks to other provinces and do not have deep roots

in Acehnese soc ie ty. Addi t iona l ly, PUSA’s ef fect iveness a t organiz ing a t the g rass roots leve l tends to var y by d is t r ic t .

118 Interview, Dinas Syar iat Is lam , 26 January 2006, Takengon, Aceh Tengah.


leaders, such as ustadz (Islamic teacher) andda`i (preacher), teach issues relating to correctmoral behaviour according to Syariah but littleis taught on the types of cases that the SyariahCourts can now handle, the functions andlimitations of the WH and the rights ofcitizens under Syariah.

The assessmenta lso found thatthere have beenm o r e r i g o r o u sattempts to raisecommunity awa-reness on SyariahLaw in tsunami-a f f e c t e d a r e a s .There are ind i -cations that un-derpinning suchefforts has been afear among somereligious Acehnesecircles that the in-ternat iona l pre-s e n c e w i l l u n -d e r m i n e c o m -munity adherenceto Islamic values.Additionally, therea r e c o n c e r n samong moderate Muslims that, following thetsunami, religious leaders have ascribed thenatural disaster to ‘sins’ committed by theAcehnese and women, in particular, and nowinsist that “Acehnese women must conformto strict Islamic laws to avoid anotherdisaster.”119

Civil Society and Adat AwarenessRaising

The assessment only found one NGO workingto raise community legal awareness about adatas a justice system. Jaringan Komunitas Mas-yarakat Adat (JKMA Aceh; IndigenousPeople’s Network),established in 1999, sees

its mission as pro-tec t ing Acehnesetradition and culturalpractices. To this end,it is currently plan-ning an extensivesocial ization cam-paign to be imple-mented in the fu-ture.120 The JKMA,working with BRRand PuGAR (PusatGerakan Rakyat) hascommenced a pro-gram of institutionalstrengthening forimam mukims, inclu-ding their role inraising awareness ofadat law. This hastaken the form of aseries of workshopsheld in March 2006,

aimed at developing a work plan for futureconcrete action.

119 Aceh: Peace af ter the Waters? Aceh: Chal lenges of Reconstr uct ion and Peace One Year Later (Global Exchange, March2006), p. 6.

120 Interview, Executive Secretary JKMA Aceh, 5 January 2006, Banda Aceh.

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Banner in downtown Banda Aceh - “Women in tight clothing

are the same as the Devil”.

Chapter 5Access to Appropriate Forums


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Chapter 5Chapter 5 - Access to Appropriate Forums


LegalAwareness





- Prohibitive costs;- Shameful to take problems outside of village;- Belief that system is corrupt;- Court judges (often from outside Aceh) are culturally

insensitive towards Acehnese;- Formal system is adversarial;- Mistrust of system due to conflict trauma;- Lawyers think of how to make money rather than

giving human assistance;- Court decisions are disproportionate to crimes;- Complicated and intimidating bureaucracy;- System is not user-friendly.

Syariah Justice System

- The Syariah Law applied does not fit with modernAcehnese culture;

- WH is “arrogant and abusive”;- Expensive;- Complicated procedures.

- Provides women with opportunity to receive fair inheritance and divorce rights;

- Reflects Acehnese culture;- Fair and just;- Free of corruption; and

- Decisions made are binding and enforceable.

Adat Justice System

- Subject to collusion, corruption, and nepotism;- No accountability;- Does not lead to lasting dispute resolution;- Minority groups can be treated unfairly;- Laws, decisions and procedures can change (no cer-

tainty) because adat is flexible and fluid.

- Speedy decision-making;- Easy to access;- Not expensive;- Processes easily understood and culturally re-

levant to villagers;- Peaceful way of resolving disputes.

TABLE 4: KEY FINDINGS: ACCESS TO APPROPRIATE FORUM

- Acehnese opt overwhelmingly for adat dispute resolution over the formal system.- Within the formal justice system, perceptions of the Syariah justice system are more positive than of the

General justice sytem.- A range of social, political, economic and institutional factors influence people’s choice of forum.

Summary of Factors and Community Perceptions

Opt For… Opt Against…

General Justice System

- Decisions are more easily enforced than adat;- Punishments are more punitive and have a

deterrent effect against criminal behaviour;- Better protection of confidentiality offered (in

urban areas).


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Access to an appropriate forum refers tothe right of every person to access an inde-pendent and impar t ia l just ice system(whether formal or informal) that willprovide them with an effective remedy to ajustice grievance.121 Besides levels of legalawareness (discussed in chapter 4), factorsidentified as affecting people’s choice ofjustice system or, in many cases, the choicenot to take any action include social, political,economic and institutional factors, all ofwhich are in turn influenced by communityperceptions.122 This chapter presents findingsregarding these factors and how they influencepeople’s choice of justice forum in both tsu-nami- and conflict-affected research sites.Findings regarding community in action forresolving justice grievances are presentedherein under the heading “Why No Action isTaken”, followed by an additional section onthe de facto role of the Aceh Monitoring Mission(AMM) in resolving grievanes.

5.1 Social Factors

The assessment disclosed a number ofpervasive social factors that cause theAcehnese people to rely predominantlyon adat rather than the formal justice systemfor dispute resolution.

First, village respondents stated that they feltmore comfortable and confident bringingtheir grievances to the adat justice systembecause, while – as stated in section 4.3 –specific adat principles may be elusive toexplain, villagers are still generally more

familiar with its procedures, punishmentsand, perhaps most importantly, with theadat leaders themselves, such as the keucik,than they are with these elements of theformal justive system. As discussed below,the formal justice system (both National andSyariah systems) is perceived as bureaucratic,labyrinthine and, therefore, intimidating.

A second social factor that encourages citizensto choose the adat system over formal justicesystems is the belief that ‘local problems’should be ‘kept local’; i.e. that one should notescalate a grievance between two parties andbring shame upon them and, therefore,upon the village by referring it to a highersystem or ‘outsiders’, which the formal systemis considered to be. Associated with this beliefis a fear, due to years of conflict, that involvingstate authorities will only bring violence andharm (Village CA5, CA4, CA9, CA1). This isdiscussed further below as a political factorpreventing people from accessing the formaljustice system.

Third, and related to the above, is the strongbelief held and promoted among villagersthat social harmony must be maintained atvirtually all costs so that it is preferable toemploy dispute resolution mechanisms, suchas adat, that keep a dispute or grievance local-ised. Adat dispute resolution mechanisms,which focus on settlement of disputes andreconciliation, attempt to resolve problemsin a “familial way”.123 The mechanisms areconciliatory, rather than adversarial as in theformal justice system. As one keucik put it,

121 UNDP, Programming for Justice: Access for All, p. 85.

122 These reasons are similar to those influencing citizens’ choice of justice system in other parts of Indonesia. Other assessments have demonstratedthat there is generally a poor view among local communities towards the General justice system throughout the archipelago due to perceptionsthat they operate only for the wealthy, are risky and inefficient. Police have similarly been regarded as corrupt and ineffective. See, AsiaFoundation, Survey Report on Citizens’ Perceptions of the Indonesian Justice Sector: Preliminary Findings and Recommendations, p. 52;see also, World Bank, Village Justice in Indonesia: Case Studies on Access to Justice, Village Democracy and Governance (Jakarta: WorldBank, February 2004) http://www.justiceforthepoor.org/

123 FGD, Villagers, 21 January 2006, Village TA4, Aceh Utara; Interview, Sub-district Official, 15 February 2006, Aceh Barat; Interview, Villagers,24 January 2006,Villager CA6, Aceh Utara; FGD, Widows, 16 February 2006, Village TA2, Aceh Barat.


“with adat, we can persuade people to forgiveeach other and agree on a settlement. Withthe courts, there is severe punishment, whichcan lead to a desire for revenge. This is notgood for the village.”124

While many respondents appreciated theconciliatory nature of the adat justice systemand the priority it places on social harmony,the assessment found that the system cancompromise the interests of claim-holdersand, in the case of social ly disadvan-taged or economically vulnerable (such aswomen, widows and landless labourers),c an f u r the r ma rg in a l i s e t h em . (Box11 provides a case study illustrating this.)

Additionally, while adat processes may beconsidered less shameful as conflicts are keptat the village level, this appears to apply morein rural areas. In urban areas such as in BandaAceh, respondents suggested that they mightaccess the formal justice system because itwould permit greater confidentiality. Althoughcases are heard in an open public forum(i.e., court rooms), the process providesconfidentiality because lawyers will generallynot originate from the village and othervillagers are less likely to attend a courthearing. With adat, respondents believed thatprivate information relating to their casesbecomes public knowledge very quickly atthe village level, which – while not as shamefulas having information escape the village –can be embarrassing as well.125

A fourth factor compelling citizens to opt forthe adat justice system over the formal one isthat, as the assessment found in several loca-tions, adat leaders will often actively discouragecitizens from approaching the formal justicesystem to resolve their grievances (VillagesCA9, TA1).126 These leaders explained that,traditionally, it is believed that they shouldbe able to address the problems of theirvillage. Consequently, if a villager takeshis/her grievance to another external forum,this becomes a judgement on these leaders’capacity to resolve disputes, thereby compro-mising their credibility as leaders. Adat leaders,therefore, have a vested interest in ensuringthat v i l lage g r ievances do not ‘maketheir way’ out of a village. Villagers, conse-quently, find it difficult to bypass the adatsystem because of the strength of villagehierarchies and of a principle of respectingone’s ‘elders’.

124 Interview, Keucik, 29 January 2006, Village CA2, Aceh Tengah.

125 Interviews, Villagers, Banda Aceh.

126 FInterview, Widow, 17 February 2006, Village TA1, Aceh Barat.

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BOX 11: ESCALATING CONFLICT

In 1982, village X located in the Banda Aceh arearequested permission from the BPN to farm onland situated adjacent to the village. This requestwas granted and the usage of the land was notdisputed by any group until after the tsunami whenproperty values increased. On 9 March 2005, theKeucik of village X received information from theBPN that a farmers group was claiming the land,and that the land was to be used for constructinghousing complexes to relocate victims of the tsuna-mi.The Head of BPN summoned the Keucik to a meet-ing and stated that their ownership was invalidbecause it was not based upon a Land OwnershipCertificate issued by BPN. The BPN then dispatcheda team of surveyors and security officers along witha group of people from the farmer’s association tosurvey the disputed land. This led to an incident inwhich local villagers intercepted the team and orderedthem to leave. On 25 April 2005, another groupreturned to the village to conduct surveying activities,this time consisting of people from the rival villagesupported by TNI personnel. Local villagers againintercepted the team, after which the TNI orderedthe villagers to tear down the huts used for shelteron the disputed land.

(Report, Confidential)


Finally, in villages populated by more thanone ethnic group, the assessment found thatthe dominant ethnic group would often holdthe view that minority communities mustascribe to their adat principles (Villages CA2,CA3, CA9, CA5, CA6, TA4, CA4). Dominantgroups would use adat mechanisms to ensurefavourable outcomes for themselves, therebycoercing the minority group to turn to formaljustice mechanisms to defend their rights. Forexample, in one predominantly Gayo village,minority Acehnese called upon the formaljustice system to support them in resolvinga land dispute because they felt the applicationof Gayonese adat had been unfair to them.A member of the sorak opat (Gayonese tuhapeut) in the village said, “Between Gayoneseand Acehnese in disputes, problems are solvedby Gayonese adat because our adat is properfor them. We try to look for similarity thatcan strengthen cohesion in the community.After we solve the problem, if they are notsatisfied, they can bring the matter to thepolice”.127

In another example, Javanese transmigrantsin a predominantly Acehnese village still per-ceive that they will be treated in a discrimina-tory manner if they access adat justice forums.Patterns of discriminatory behaviour weremore intense in locations where social cleav-ages were aggravated by the legacy of com-peting political alliances during the conflict(i.e., pro-GoI or pro-GAM).

Because of the strengths of the above beliefsand social pressure, rejecting the adat justicesystem and opting directly to take one’s griev-ance to a formal justice forum can lead tostigmatization and public shaming of theclaim-holder. This is particularly the case withdisadvantaged and vulnerable groups, suchas widows, who often rely on other villagersfor assistance and support.128

5.2 Political Factors

Political factors were and, in spite of theMoU, continue in some instances to constraincitizens’ options in terms of which justicesystem they would approach to redress agrievance. Some factors act to encourageusage of the formal justice system, whileothers have a deterrent effect.

For example, the assessment found that, dur-ing the conflict, citizens feared that theirchoice of legal forum would impute themwith a certain political opinion, for which theGAM and GoI would punish them for. Onthe one hand, those who employed the formaljustice system to resolve their disputes wereoftentimes accused by the GAM and itssupporters of loyalty to the GoI. Respondentsrelated that, during the conflict, it was com-mon for community members to be targeted

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127 Interview, Village Elder, 28 January 2006, Village CA2, Aceh Tengah.

128 FGD, Widows of Conflict, 8 February 2006, Village CA9, Banda Aceh.

BOX 12: A PRIVATE MATTER

The people of Village CA5 are of the opinion thatdomestic violence is a private family matter. WhenU was beaten by her husband, nobody did anythingabout it. When finally the Teungku Imam and Keucikintervened, there was no penalty or punishment.The husband was only reprimanded. She went tothe adat leaders two times, and each time she wasadvised to reconcile with her husband. But eachtime after reconciliation, her husband would beather again. U also did not go to the police becauseit would cost too much and she was still scared ofthe police.Now she chooses to submit to her fate.According to Y, the nephew of U, the beatings stillcontinue. Many other women in this village sufferthe same way but they remain silent, either out ofshame or fear.

Interview, Villagers, Village CA5, 25 January 2006.


129 Interviews, Police, Aceh Barat, Aceh Tengah, Aceh Utara, Aceh Pidie; FGD, Informal Justice Actors, 21 January 2006, Village TA4, Aceh

Utara.130 FGDs, ex-GAM Combatants, Villages CA1, CA5, CA6, TA4, TA5, Aceh Utara; Villages TA7, CA7, Pidie; for an historical case study see,

Geoffrey Robinson, ‘Indonesia: On a New Course’, in Muthiah Alaggapa (ed), Coercion and Governance: The Declining Political Role ofthe Military in Asia pp. 240-251.It was reported that decisions made by GAM figures were accepted by villagers, although there was someindication that acceptance was due to fear of these figures. Interview, FGD Disadvantaged Group, 24 January 2006, Village CA6, Aceh Utara.

131 Villagers did occasionally distinguish between organic and non-organic police, as organic police were often considered to be more sympatheticto the Acehnese plight. Nevertheless, overall, the “wait and see” attitude remains. Villages CA1, CA5.

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by GAM combatants if they had approachedformal justice duty-bearers.129 On the otherhand, the GAM also operated their ownalternative dispute resolution processes andgovernment apparatus often accused citizenswho opted for this system of being in oppo-sition to the government.130 Nevertheless,as a result of the above, many people havedistanced themselves from the formal justicesystem and, while the MoU has brought peaceand security has improved, the “wait and see”attitude of community members continues.131

This is particularly the case with ex-GAMcombatants who continue to be especiallywary of accessing formal justice forums.

The assessment found that, while mainta-ining this “wait and see” attitude, many vil-lagers with justice grievances – particularly

but not solely in conflict areas – have for-warded complaints to the Aceh MonitoringMission (AMM). The AMM was never intend-ed in any way as a substitute justice forum.However, it is mandated to “investigate andrule on complaints and alleged violations ofthe MoU” (article 5.2.g of MoU). Yet, villagershave also forwarded cases that are unrelatedto the MoU because, as respondents explained,many Acehnese feel more comfortable access-ing the AMM than the formal justice system.In these cases, the AMM can do little morethan refer these plaintiffs to the appropriatejustice forum (including adat duty-bearers).Nevertheless, it demonstrates that civic con-fidence in the formal justice system remainslow and must be addressed as a priority, par-ticularly before the eventual withdrawal ofAMM from Aceh.

BOX 13: THE SUGAR FIELDS

X’s husband was an Acehnese merchant from Pidie. One evening, during the conflict period, there was a knockat the door of their home; some villagers had come and they took her husband away. The next morning X,together with some neighbours, went to look for her husband and found his body in the sugar field next to thevillage. His throat had been slit, the facial skin on his head had been peeled off, a bullet had been shot throughhis head, and there was other evidence of torture.

Y reported that the same had happened to her husband during the conflict period. Y’s husband was taken byvillagers on the same evening as X’s husband. Y also found her husband the next morning in the sugar fieldoutside the village. His throat had been slit and his stomach was full of stabs. She does not know anything aboutthe law and is afraid to talk “wrongly” about the case.

Z also reported that her husband had been murdered on the same evening as the husbands of X and Y. Z’shusband had been taken from their home to the sugar field by “unknown people”. Z reports that the next morningshe found her husband’s body in the sugar field; one of his ears had been cut off.

In all these cases there has been no resolution for the justice grievances of the victims of past human rightsviolations. Moreover, the village apparatus has not assisted these women in seeking justice. In fact, the villageapparatus has actively discouraged these women from going to formal justice actors.The practice of keeping suchissues at village level has an ongoing negative impact upon the psychological and emotional well-being of thevictims. For example, the plight of X is made worse because her son was recently stigmatized as being a “GAMchild” by other children in the village. X wanted to report the incident to the police but the Keucik stopped herby saying, “This is just a small case, why bring it to the police”.

FGD, Widows of Conflict, Village CA3.


On the other hand, the assessment foundthat, in at least three locations, communitymembers from particular non-Acehneseethnic groups stated that they felt safer witheither a police or military presence close totheir villages during the conflict.132 These aregenerally those ethnic groups, such as theGayo and Javanese (transmigrants into Aceh),that were traditionally pro-GoI during theconflict. Nevertheless, although these re-spondents are more confident in the formaljustice system than their fellow citizens inother villages, they stated that, even then,they prefer not to involve the formal justicesystem in dispute resolution because of otherfactors, including corruption and inefficiency(discussed below).

Paradoxical ly, General Cour t off ic ia lsreport that community members haveincreasingly sought the General justicesystem since the signing of the MoU. Peoplechoose this forum to resolve criminal matterssuch as traffic violations, robbery, murder,and narcotics trafficking; offences that havebeen on the rise due to economic hardship.133

The same official argues that the GeneralCourt is preferred by claim-holders because,in cases of injury or death, this is the forumbest suited to provide an outcome thatwill lead to a fair decision for victims and isbinding.134 Moreover, according to some courtofficials, an important factor giving rise topreference for the General Court is that itcan redress power imbalances at the locallevel that undermine fair decision-making.135

Nevertheless, the assessment found that it isstill more often the case that villagers preferto avoid taking cases to the General Court.

Another political factor that has preventedAcehnese from accessing the formal justicesystem is that during the conflict, GAM notonly encouraged the use of adat but, in somecases, would coerce villagers against using theformal justice system (Villages CA5, CA6,TA4, TA5, TA1). The assessment identifiedtwo main reasons for this: first, ex-GAMrespondents stated that one objective wasto prevent the TNI or police from coming toa village, as this presence often led toviolence and extor tion; second, otherrespondents argued that rejecting formalinstitutions (and coercing civilians to dothe same) was one way in which the GAMcould discredit the Indonesian state.136

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132 Villages CA1, CA2, CA3, CA4, TA3.

133 Interview, Court Official, 14 February 2006; FGD, Informal Actors, 21 January 2006, Village TA4, Aceh Utara.

134 Interview, Court Official, 14 February 2006, Banda Aceh.

135 Interview, Court Official, 14 February 2006; FGD, Informal Actors, 21 January 2006, Village TA4, Aceh Utara.136 Interviews, Villages TA4, 17 January 2006. For further discussion see, Kirsten E. Schulze, The Free Aceh Movement (GAM): Anatomy of a

Separatist Organization (Washington: East-West Center, 2004); Rizal Sukma, Security Operations in Aceh: Goals, Consequences, and Lessons(Washington: East-West Center, 2004). The GAM’s rejection of formal justice institutions led to the burning and destruction of manygovernment buildings, including police stations, Courts and other justice auxiliaries. For example, BPN officials in Lhokseumawe note thatduring the conflict their office was bombed and their officials targeted by GAM. BPN offices were forced to close down, as were all othergovernment services. However, since the Helsinki Accord, BPN officials report that they now visit ex-GAM members in their villages andcan “sit together as friends” and address questions raised by ex-combatants; Interviews, BPN Officials, 24 January 2006, Lhokseumawe.

BOX 14: FEAR

“You could file a report anywhere, but here all ofus are considered as members of GAM. Reportingmeans he or she is a GAM member. They will searchfor your identity, and sometimes they even kidnapyou at night. That’s why we don’t dare to report.”

Interview, Keucik, Village TA4,21 February 2006, Aceh Utara.

“Please don’t expose us. In the past the Keucik wasclose to the military and even now still goes aroundwith the military. During the conflict many peopledisappeared because they spoke to the military; weare still afraid that we will disappear.”

Interview, Villager, Village CA5,22 February 2006, Aceh Utara


5.3 Economic Factors

The assessment found that economic factorsare a primary constraint on citizens’ abilityto access the formal justice system. In parti-cular, disadvantaged and vulnerable groupsidentified during this assessment, who con-front economic hardship and have inadequatesources of income, opt for the adat justicesystem as a forumfor resolving grie-vances (see Ap-pendix 5, VillageProfiles).137 This isespecially true intsunami-affectedareas where peoplehave lost assets andlivelihoods as well.

First, respondentsstated that corrup-tion is prevalentamong formal jus-tice providers. Asone v i l l a g e r e -spondent said, “Ifwe report a loss ofa chicken to thepolice, we will losea goat”.138 Otherrespondents notedthat requests forassistance made to formal justice providersare often answered with the condition of abribe, marked by the expression “jangan lupasama saya” (“don’t forget about me”).139

The insinuation is that assistance will be

provided by the formal duty-bearer. However,the claim-holder should not forget to rewardthe duty-bearer for their assistance – in spiteof the fact that it may be their duty to assist.The corollary to this endemic corruptionwithin the formal system is a perception thatthe Courts are partial towards wealthy claim-holders; that is, those people who can affordto buy their way through the system.

Whi le the aboveapplies to both theGeneral and Syariahjustice systems, in-ter views with re-spondents indicatedthat they perceivedthe General justicesystem to be moresusceptible to cor-r upt ion than theSyariah justice sys-tem. The assessmentwas unable to verifythis and, while sto-ries of corruptionwithin the Generaljustice system wereplenty, the lack ofanecdotal evidenceconcerning the Sya-riah system does notnecessarily indicate

that corruption does not occur. Indeed,it appears that the perception is based onan assumption that religious institutionssuch as the Syariah Courts would not par-t ic ipate in cor rupt act ivity. However,

137 Livelihoods typically consist of subsistence agricultural farming, unskilled labour work on plantations or in paddy fields, with incomes rangingbetween Rp 30,000 to Rp 50,000 per day for seasonal work (i.e., work days are not constant). Official statistics for Aceh state that the averagenon-agricultural wage for women ranges between some Rp 366,000 and Rp 590,000 per/year and for men between Rp 692,000 and Rp 925,000per year. Moreover, poverty levels appeared much higher in heavily conflict affected areas. [Villages CA1, CA4, CA5, CA7, CA8, TA4, TA5.]

Official statistics note that in Aceh Utara 118,000 people lived under the poverty line in 2002 (in Pidie 225,800, in Aceh Tengah 77,800, and in Aceh Barat 97,600). See, UNDP, Indonesia National Human Development Report 2004, p. 192.

138 Interview, Academic, 19 January 2006, Lhokseumawe.

139 Interview, Villagers, 20 February 2006, Pidie.

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What appears at first glance to be a Police Complaints Box

is in fact a box for villagers toreport the presence of alleged

GAM members or suppor ters. A remnant of the conf lict.


the point of note here is that this perceptionrenders the Syariah justice system more attrac-tive to claim-holders seeking to redress griev-ances. Previous assessments on the justicesector in Aceh have made similar findings.140

Second, respondents noted that thelegitimate costs alone related to accessing theformal justice system are too high for manyvillagers to afford.These costs includecourt and legal as-sistance fees, as wellas high travel anda c c o m m o d a t i o ncosts when access-ing formal justiceproviders, whichtend to be situatedin district capitalsthat can be signifi-cant distances fromvillages.141 Relatedto this is the alle-gation that formalcourt procedures arenot expedient. Thetime that cases taketo process throughthe formal justicesystem translatesinto an economicc o s t o n c l a i m -holders as well . For example, while aclaim-holder has to await a trial session in adistrict capital, they not only have to pay forliving costs there. They may also be prevented,for the time of their absence, from earningan income through their livelihood in theirvillage.

The assessment revealed an additional eco-nomic factor that has led Acehnese to optfor the Syariah justice system over the Generalsystem in the case of criminal offences.This is that the Syariah Courts tend tosentence the accused to caning, which baresno economic cost (although fines and prisonsentences are possible punishments as well),while the General Courts mete out fines

and prison sentenc-es, both of whichcan be financiallytoo burdensomefor many Acehnese.In one case, a groupof Christian men,arrested for gam-b l ing , r eques tedthat their case beadjudicated by theSyariah Courts.142

It became apparenttha t the i r mot i -vation was to escapethe financially cost-ly sanct ions thatthe General Courtswou ld have im-posed.

However, poverty orinadequate incomeis not the only eco-

nomic factor that encourages the usage ofadat mechanisms. The assessment found that,in both tsunami and conflict areas that arebenefiting from humanitarian assistance, lead-ers in several villages discourage reporting ofgrievances to formal mechanisms because

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140 UNDP, A Review of the Justice System in Aceh, Indonesia, p.34. See also Asia Foundation, Survey Report on Citizens’ Perceptions oftheIndonesian Justice Sector: Preliminary Findings and Recommendations (Jakarta: Asia Foundation and AC Nielson, August 2001).

141 Interview, General Court Official, 14 February 2006, Aceh Barat. While the assessment did not collect quantitative data on this, an overwhelmingnumber of respondents identified these economic factors as prohibitive vis-à-vis their incomes.

142 Assessment team members’ direct observations of the Court hearing. The Syariah Court judge ultimately refused to accept the cases beforethe Court believing that that the suspects were seeking less lenient sanctions through the Syariah Court. See Appendix 4.

“Jangan lupa sama saya”- tsunami and conflict orphans: Director

of orphanage says that officials have “skimmed assistance fees”

off assistance meant for the orphanage.


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they are engaged in trying to control aiddistribution (i.e. “elite capture”) and reportingto formal systems may prevent them fromdoing so.143 This was most prevalent in tsu-nami-affected areas where donors have ex-pended significant resources for post-tsunamireconstruction activities. In these locations,community grievance within villages is highbecause of unequal aid distribution or, inother words, corruption is skewing the distri-bution of aid.

While corruption among formal justice pro-viders is a key reason that many opt for theadat justice system, the adat system is also notfree of corrupt behaviour, as the example

143 FGD, IDPs, 17 February 2006, Village TA1, Aceh Barat.

below demonstrates. This in turn gives riseto new community grievances and anger.

5.4 Institutional Factors

Institutional factors also affect citizens’ choiceof justice forum. Factors identified by theassessment that have discouraged citizensfrom accessing the formal (General andSyariah) justice system include the bureaucraticand labyrinthine nature of procedures andconfusion regarding jurisdictions.

First, village respondents gave, as a primaryreason for not accessing the formal justicesystem, the fact that it is intimidating to them.

BOX 15: ELITE CAPTURE AND COMMUNITY GRIEVANCE

Community Member: “Most of the people who get houses are the Keucik’s relatives. When I asked him, he alwayssaid, ‘You do not have land, how can you get a house?’...Keucik does not care for us because we are outsiders here. He listens to the Insiders, rather than us…he gives priority to his relatives. Imam Mesjid, Tuha Peut, Tuha Lapanare the relatives of the Keucik. They were nominated by the Keucik; he asked the people whether or not they areproper to be adat leaders, and all the people certainly answered ‘yes’”.

Interview, Villagers, 24 January 2006, Village CA6.

Keucik: “We already made a list of people who really need help, so they don’t have to ask anymore, everyone willget their turn”.

Interview, Keucik, 21 February 2006, Village TA4.

Academic: “The Keucik involves highly regarded and rich people in the village…because people heed and respecttheir voices. The resolutions made by the informal institution always satisfy them…The resolutions of the villageinformal institution are made verbally and there is no follow-up because everybody accepts the resolutions.”

Interview, Academic, 19 January 2006, Lhokseumawe

BOX 16: COLLUSION

Y’s ex-husband stole her water buffalo. He then sold it without giving her any money. He used all the funds fromthe sale to marry another woman. Y reported the theft to the Keucik, but the Keucik said “let’s not make a fussabout this; it will only make the matter bigger.” The Keucik also told Y that it was better not to go to the policebecause that would “cost too much money, probably more than the price of one water buffalo”. Y then choseto remain silent. She was told by another villager that her former husband had paid the Keucik to keep silent overthe case.

Interview, Widow, 16 February 2006, Village TA2.


Respondents said that they perceived theformal justice system to be, besides bureau-cratic and labyrinthine, also non-responsiveto people’s needs. In other words, they feltthe system was not service-oriented and didnot seek to respond to claim-holders’ needs.Many respondents said they feared that, bytaking a grievance to the formal system, theycould find themselves in greater trouble be-cause they do notunderstand proce-dures. Additionally,illiteracy or inabilityto speak Indonesian(many people onlyspeak Acehnese oranother local lan-g u a g e s u c h a sGayonese, while theofficial language ofthe Courts is In-donesian) furtherconstrain an indi-vidual’s ability toaccess the formalsystem.144 Justiceinstitutions do nothave services avail-ab le to suppor tsuch citizens.

Respondents statedthat a better un-derstanding of the formal system and accom-paniment through legal processes would en-courage them to utilise the National andSyariah justice systems. However, low legalawareness (as discussed in Chapter 4) is com-pounded by a shortage and lack of knowledgeof legal aid facilities that can support citizensthrough formal legal processes. The NGOs

identified in Chapter 4, which undertake legalawareness raising activities, all have legalaid programmes as well. However, for anumber of reasons, these legal aid pro-grammes have been unable to respond to allthe needs. First, many programmes are basedin district capitals and, due to a lack of capac-ity, are unable to reach out to citizens at thesubdistrict, let alone the village level. Conse-

quently, many re-spondents in te r -v i e w e d b y t h ea s se s sment wereu n awa r e o f t h eexistence of suchprog rammes. Se-cond, while fundingis no longer a pri-m a r y c o n s t r a i n tf a c e d b y t h e s eNGOs (s ince thetsunami and signingof the MoU, donorshave increased theirfund ing towardshuman rights andl e g a l N G O s ) , ashortage of humanresource capacity isa critical constraint.NGOs stated thatthere is a shortage oflawyers in Aceh who

are trained and willing to undertake legal aidactivities. Additionally, they have found itdifficult to attract lawyers from outside Acehto come to the Province because of low livingstandards and wages. The result is limitedcapacity to assist citizens who might otherwisechoose to bring their grievances to the formaljustice system.

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144 The generally high levels of literacy for the population (ranging between 91.6% and 99.5%) noted in the 2004 Indonesia Human DevelopmentReport did not appear to be reflected in village assessment sites; see, UNDP, Indonesia National Human Development Report 2004, pp. 117.

House marked as GAM-owned and destroyed during conflict

forcing its owners to flee; Owners have sought assistance from

the Government but assistance is still pending.


5.5 Why No Action is Taken

In cases where claim-holders took no actionto redress a grievance (i.e., they accessedneither the formal nor adat system), it isgenerally due to a combination of the abovereasons or that, as they stated, they did notbelieve that either type of duty-bearer couldor would assist. The assessment found thata significant number of victims of conflict-induced human rights violations (perpetratedby GoI security personnel, ex-GAM andmilitia groups) never took any action to tryto have the injustices committed against themredressed (see Appendix 5). The lack of trustin the system is due to a perceived culture ofimpunity for human rights violators in Aceh.145

The assessment further found that respond-ents with justice grievances in tsunami areas

were increasingly deciding not to take actionto redress their grievances either. In thesecases, the assessment found that tsunamivictims were becoming despondent with theslow pace of progress made by internationaland local NGOs, as well as government andtheir own traditional adat leaders, which wasdiminishing their confidence in the system.This lack of confidence has, over the years,created an attitude of resignation towardsjustice mechanisms when it comes to partic-ular types of grievances so that, rather thanexhaust one’s self attempting to access justicewith futile results, people prefer to ‘submitto their fate’. The Indonesian term for‘submitting to one’s fate’ – pasrah – was aterm that the assessment team heard timeand time again.

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BOX 17: ATTITUDINAL OBSTACLES INFLUENCING CHOICE OF JUSTICE FORUM

“Police do not respond seriously to the cases that the people report and they sometimes belittle the cases reportedby women. Prosecutors often side with men or powerful people. Lawyers are expected to assist in legal processes,but many people cannot afford the lawyer services. Traditional laws also often act unjustly and side with certainparties. Traditional laws often defend men, rather than women.”

Interview, NGO, 5 January 2006, Banda Aceh

“Prosecutors in Aceh are reluctant to side with the cases that women have. Even female prosecutors attendingthe court show lack of sympathy to the cases that women have…When a person has a case and reports it to thecourt of justice, public figures will usually get angry and will not make themselves available when needed. Thisis caused by the assumption that people’s case should not be reported to the court because public figures in thevillage can resolve it…police are often not cooperative and do not care about the cases reported by women.”


“Prosecutors still have lack of understanding regarding gender injustice, as a consequence many of them defendthe violent perpetrator and blame the women victims of violence .”


Assistance to Widows: “Sometimes the widow doesn’t get all the aid. It’s a matter of aid percentage. Sometimesit is cut in the regency and subdistrict office.”

Interview, NGO, 30 January 2006, Takengon, Aceh Tengah

Police comment after receiving a report of rape against a woman: “Why do you have to exaggerate this kind ofcase?”

Interview, NGO, 30 January 2006, Takengon, Aceh Tengah

145 Indeed, no cases of human rights violations committed in Aceh have been taken to any of the ad hoc Human Rights Courts established byLaw No. 26/2000, such as that in Medan or Jakarta. This is due, in part, to the lack of confidence in these Courts, as their track record ofconvictions of human rights violations from other parts of the country has been very poor and does little to counteract the public perceptionthat a culture of impunity for government-perpetrated violations continues.


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Chapter 6Handling of Grievances


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Chapter 6 - Handling of Grievances

146 A more detailed matrix analysis for each of the institutions considered is found in Appendix 3.

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LegalAwareness





GeneralJusticeSystem

- Resources and infrastructure of police, prosecutors, courts and prisons damaged by thetsunami and the conflict.

- Poor training of staff and insufficient operational resources undermines the effectiveprovision of justice.

- Allegations of corruption in all institutions.

- Aggressive policing mentality, a remnant of conflict, is a challenge to building publicconfidence in General justice system.

- There is an urgent need to establish a Truth and Reconciliation Commission and aHuman Rights Court in order to redress a culture of impunity for human rights violationsand to prevent future conflicts in the province. General justice system as it is cannot dothis.

- Weak oversight and public accountability of General justice institutions.

Syariah

JusticeSystem

- Resources and infrastructure damaged by the tsunami and the conflict.

- Insufficient resources to handle expanded jurisdiction and growing caseload.

- Judges have limited knowledge of criminal legal procedure, as jurisdiction was limited tofamily and property law until 2004.

- Weak oversight and public accountability of Syariah justice institutions.

- WH’s zealous attempts to enforce Islamic law are leading to possibleConstitutional and human rights violations.

Adat

JusticeSystem

- Can handle many grievances effectively as is conciliatory rather than adversarial.

- Vague normative legal framework leads to confusion regarding jurisdiction (i.e., what casesadat can handle) and procedure (i.e., minimum standards for dispute resolution).

- Adat institutions lack training, resources and facilities.

- Adat can be subject to collusion, corruption and nepotism. Can further disadvantagealready disadvantaged groups.

- Fluid nature means that not all adat institutions will exist in a given village.

- Weak oversight and public accountability

TABLE 5: KEY FINDINGS: HANDLING OF GRIEVANCES146


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Handling of grievance refers to the mannerin which duty-bearers receive and processcases in a given justice forum. Effectivehandling of grievances implies case handlingthat is according to the law, impartial ,expedient and consistent with human rightsstandards. Thus, effective handling ofgrievances is critical for access to justice andstrengthening the rule of law. This chapterpresents findings about weaknesses withthe handling of grievances in different justiceforums and obstacles encountered by duty-bearers in providing access to justice.

6.1 General Justice System

An interesting finding made by the assessmentwas that, overall, POLSEK offices surveyedin the districts of Aceh Tengah, Aceh Barat,Aceh Utara, and Pidie had a low number ofreported cases. Cumulatively, the ninePOLSEK stations visited had recorded aroundhalf a dozen criminal cases between 2004 andearly 2006. Most reports of criminal casesare filed at POLRES offices. In tsunami-affected areas, POLSEK offices had receiveda high number of reports of missingdocuments and requests of letters ofguarantee (e.g. missing diplomas, vehicledocuments, bank books). While it was initiallythought that this reflected the extent to whichvillagers did not want to utilise the formaljustice system, it was later found that, in fact,there has been a significant level of reportingof unrecorded cases to POLSEK officials ofcivil and criminal cases. However, standardpractice for officers is to refer cases back tomukim or gampong levels and attempt to mediatedispute resolution through informal justicemechanisms. According to police, the smallnumber of recorded criminal offences at

POLSEK offices is due to the fact thatPOLSEK personnel work closely withcommun i t y member s i n e f fo r t s t oresolve/facilitate dispute resolution at thevillage level. While cases reported should stillbe recorded (and there remain issues with thetypes of cases that are referred back), themanner in which such grievances are beinghandled (i .e. the referral back to adatinstitutions) is consistent with the law, which,in Perda 7/2000, requires that police give adatinstitutions first opportunity to resolvedisputes. The types of cases referred back toinformal mechanisms include criminal matters(e.g., theft, assault, cases involving ex-GAM,and most commonly domestic violence). Mostpolice respondents prefer using adat conflictresolution mechanisms because they aim tostrengthen social cohesion within villages.147

Nevertheless, in spite of many cases beingfirst referred back to the adat system,the assessment did identify a number offactors that diminish the capacity ofthe General just ice system to handlegrievances effectively when grievances doreach this system. This section examineschallenges vis-à-vis the General Courts,Prosecutor’s Office and Police in Aceh.

Once judges are assigned to a court, theopportunity to attend various trainings islimited. In Aceh, it is reported that not asingle acting judge has received mediationcer t i f i ca t ion ; a s t ipu la t ion made bythe Supreme Court in order to mediatesettlements of cases before the court.148

Moreover, judges themselves report that theyhave received either limited or no additionaltraining relating to human rights standardsand how to apply those principles when -

147 Interview, Deputy Commander of POLSEK Office, 22 January 2006, Aceh Utara.148 Interview, General Court Judge, 12 January 2006, Banda Aceh.


149 Interview, NGO HAM, 4 January 2006, Banda Aceh; However, a noted weakness with earlier training is that formal justice system actors thatparticipated were usually low ranking officials that could not influence the overall policy direction of state institutions.

150 Interview, Police Official, 22 January 2006, Aceh Utara; Interview, Police Official, 8 February 2006, Aceh Barat; Interview, Police Official,14 February 2006, Pidie.

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handling cases before the court. The sameapplies with public prosecutors in Aceh.

With regards to police, all personnel receiveinitial training at the police academy Akpol(Akademi Kepolisian), and higher level officersat the Sekolah Calan Perwira (Police OfficersAcademy). Standard Operating Proceduresexist for all policing operations and eachpolice officer is issued with a manual thatincludes the Police Code of Conduct.However, field observations of police trainingactivit ies suggest that the method ofoperational training remains somewhatmilitaristic and not conducive to a humanrights based community policing approachand there is no “learning through doing” (i.e.,real life situation training regarding theappl icat ion of human r ights pol ic ingpractices). Instead, training focuses onbuilding physical strength and military stylediscipline among officers.

With international support, POLRI has alsoprovided human rights education and trainingfor organic police in Aceh. In fact, such train-ing dates back to at least 2001 with organiza-tions such as Koalisi NGO HAM providingworkshop training for government officialsand police personnel regarding human rights,with funding support provided by UNDP andUNICEF.149 Recent training has includedraising awareness about human rights princi-ples, improving police understanding aboutdomestic violence issues, improving standardsfor use of firearms, and introducing commu-nity policing approaches.150 However, in re-mote locations, most police have yet to benefitfrom these initiatives. An inadequate amountof money is allegedly allocated for respond-

ents to attend training activities and respond-ents stated that, in many cases, middle andlow-ranking officers are required to expendpersonal resources to meet trans-portationexpenses to attend POLDA training in BandaAceh or at district capitals. As a result, themotivation of such officers to attend trainingactivities springs from orders issued by seniorcommanders, rather than a genuine commit-ment to improve skills and individual capac-ities. Moreover, a potential weakness withcurrent training activities implemented byPOLDA and donors is that they remain highly“theoretical” and do not provide real lifesituation training for police personnel on“how” to implement human rights principlesin an operational environment.

However, there are some indications thathuman rights training since the peaceagreement has reportedly improved policecase handling (see Box 18).

Infrastructure and information managementsystems among formal justice institutionsare severely deficient. Poor judicial infrastruc-

BOX 18: IMPROVED HUMAN RIGHTSPOLICING

“The real output of the training can be seen in theimplementation of daily duties, which means thatpolice have been able to recognize whether oneparticular action is a form of human rights violationor not and they try to avoid doing so. In the pastfor example, probably due to the conflict situation,when police arrested people they tended to do itwith beating, heartless actions, humiliating, andstatements. Now they have realized that they arenot allowed to do such actions, all has to be handledbased on existing procedures”.

Interview, POLRES Chief of Police, 20 January 2006,Lhokseumawe


ture in both tsunami- and conflict-affectedareas undermines case handling procedures.Court buildings affected by the tsunamiinclude those of the district courts of BandaAceh and Meulaboh and, in several instances,courts now operate in temporary buildingfacilities. The Meulaboh District Courtbuilding was completely damaged and nodocuments survived. Currently, the MeulabohDistrict Court islocated at the se-cond floor of theAceh Barat DistrictHighway Traf f icServices building.The Banda AcehDistrict Court buil-ding also suffereddamages, thoughnot asseverely asMeulaboh’s. Of thethree courtroomsthat were formerlyu s e d , o n l y o n eremains operational.T h e D i s t r i c tProsecutor’s Officeof Banda Aceh alsos u f f e r e d s e ve r ed a m a g e i n t h etsunami. To date,legal services to the public have beenresumed by the opening of an office at theofficial residence of the head of the BandaAceh district Prosecution Office. The samesituation was experienced by the MeulabohDistrict Prosecution Office which wascompletely damaged and where no documentssurvived. Currently the Meulaboh DistrictProsecution Office is based at the officialresidence of the head of the DistrictProsecution Office.

With regards to information management,several district police stations and courts havecomputers but information managementsystems and the capacity to operate them arealmost totally lacking. Most sub-districtstations do not have computers at all. Thereis also a dearth of legal information availableto judges at the district level and, as a resultof the tsunami, at the provincial level

(i.e. in Banda Aceh)as well. Additionally,communication andt h e i n t e r f a c ebetween institutionswithin the formalj u s t i c e ‘ c h a i n ’ ,name l y be tweenpolice, the prose-cutors office, thecourts and prisons,appears to be veryweak. This under-mines the institu-t ions ’ ab i l i t y tocreate an integratedjustice system thatwould contribute toexpeditious and fairhandling of grievan-ces. This leads tod i s r u p t e d c a s e

handling, files being lost and, what is worsefor disputants, extensive delays in casehandling. Finally, respondents noted that courtadminis t ra t ive suppor t s taf f operateinefficiently and “lose” files or materials forcourt proceedings. Case scheduling wasalso identified as a problem with duty-bearers often showing up late to scheduledproceedings, thus placing further burdens onclaim-holders that already face difficultiesattending court.

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Meulaboh Distr ict Cour t was destroyed by the tsunami.


Insufficient budget also limits the capacity offormal justice providers to undertake theirduties effectively and handle grievances fairlyand expeditiously; for example, shortage offunds for witness and prisoner transportationand field verification visits to ensure fairexamination of cases reduces the ability ofjustice providers to resolve disputes in amanner consistent with national and inter-national standards.Rehabilitation and(re)construction ofcourt buildings andlegal offices sincethe conflict, tsunamiand subdivision ofdistricts has beenslow, thereby inhibi-ting the ability ofjustice providers tohandle cases.

According to policeoff ic ia l s, severa lp rocedura l p ro -b l ems w i th l awenforcement springfrom understaffing,lack of resources,and in su f f i c i en toperational funds.E ve r y P O L S E Ksur veyed repor t s 30 to 60 percen tunderstaffing of personnel. For example,officials in Pidie argue that each POLSEKshould have up to 31 officers, but the currentaverage is 7 officers per POLSEK station.Senior police officials suggest that a significantobstacle to addressing under-staffing is foundwith article 4.7 of the MoU that limits thetotal number of organic police personnel inthe province to 9,100.

A lack of communications equipment suchas radios and telephones also limits the abilityof officers to work effectively in the field.For administrative matters POLSEK officesrely on manual typewriters or logbooks forrecording and processing cases. In severaltsunami-affected POLSEK offices, filing sys-tems were destroyed and still have not beenreplaced, while in conflict affected areas of-

fices lack up to dateresources. Addi -tionally, police of-ficers continue tocarry bulky militarystyle assault rif leswhen on patrol orposted in front ofpolice offices, whichserves only to con-t inue to fr ightenan already trauma-t ised populat ion.

Several districts inAceh have recentlybeen subd iv ided(p emeka ran ) i n toadditional smallerdistricts with thei n t e n t i o n o fb r i n g i n g p u b l i cservices closer to

citizens. However, the assessment found thatthese subdivisions have not always beenaccompanied by a parallel expansion of thosepublic services due to inadequate resources.The result is that, in many cases, the publicis still no closer to public services, includingjustice services, than they were prior to thesubdivision of districts. Indeed, the dislocationof government services between districts nowrenders a confusion of jurisdictions among

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Police vehicles destroyed in tsunami. Police infrastructure

in conflict areas was also badly damaged.


service providers. For example, a crime thatwas committed in Bener Meriah (a districtthat was subdivided from Aceh Tengah in2003) should be investigated by the policeand tried in the courts of Bener Meriah.However, while there is a POLRES (PolisiResort; District Police) in Bener Meriah, thereare still no courts so that cases investigatedstill have to be forwarded to the Aceh Tengahcourts.151 Meanwhile, the judiciary in AcehTengah question whether they can examinecases that were perpetrated in a geographicaljurisdiction outside of their own. Similarly,the Meulaboh General Court’s territorialjurisdiction has expanded to cover the NaganRaya district. Claim-holders from Nagan Rayadistrict have to travel one day to the court ifsummoned to present evidence in a case.152

As citizens are obliged under law to act aswitnesses, the court does not pay for theiraccommodation or travel costs, rendering itdifficult for many citizens to undertake thisduty.153 The territorial scope of courtjurisdictions also delays serving summons andthe speedy resolution of cases.154 In order toaddress such problems, the LhoksukonGeneral Court in Aceh Utara, from whichLhokseumawe Municipality has been sub-divided, established a session room in PantonLabu. The opening of this session room wasmeant to facilitate effective and speedy casehearings by making it easier for witnesses toprovide testimony and for claim-holders toaccess the Court of first instance. However,a lack of operational funds and vehicles forcourt personnel to travel resulted in theclosure of the session room several years ago

(this was also due to security concerns causedby GAM who had a strategy of attacking allgovernment administrat ion offices) .155

Fina l ly, another fac tor reduc ing theeffectiveness of grievance handling is that,as police respondents report, organic policehave suffered traumatic post-conflict stressdisorder. In Pidie, up to 19 officers in thedistrict suffer from traumatic post-conflictstress disorders and cannot perform theirduties effectively.156 These officers havenot yet received any treatment becauseNGOs and donors have thus far focusedtrauma heal ing programs on tsunamivictims and paid little attention to peoplesuffering from conflict-related trauma.

In conclusion, there are large capacity develop-ment needs relating to human resource skills,information management systems and infra-structure that prevent both the General justicesystem to handle grievances effectively.

6.2 Human Rights Court and Truth and Reconciliation Commission

This section examines the effectiveness ofthe existing legal framework (in the form ofthe LoGA, and nationally, in the form of Law26/2000 on Human Rights Courts and Law27/2004 on the Truth and ReconciliationCommission) to redress human rightsviolations committed in Aceh over the past30 years of conflict.

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151 Interview, Head of Takengon Court of First Instance, 30 January 2006, Takengon, Aceh Tengah.

152 Interview, Vice Chairman of Meulaboh Court, 14 February 2006, Meulaboh, Aceh Barat.

153 Ibid.154 Interview, Vice Chairman of Meulaboh Court, 14 February 2006, Meulaboh, Aceh Barat; Interview, Chairman of Takengon Court, 30 January

2006, Takengon, Aceh Tengah; Interview, Vice Chairman, Lhoksukon Court, 24 January 2006, Lhoksukon, Aceh Utara.

155 Interview, Vice Chairman of Lhokseumawe Court, 24 January 2006, Lhokseumawe.

156 Interview, Chief of POLRES Pidie, 6 March 2006, Sigli.


As a legal framework for addressing humanrights violations, it is arguable that the pro-visions of the LoGA are weak and may dolittle to enhance citizens’ access to justice.First, its temporal jurisdiction covers violationsthat occurred only after the promulgation ofthe LoGA. This means that it cannot addressviolations that occurred during nearly thirtyyears of civil war, violations that cannot –from the perspec-tive of cit izens’access to justice –be left untried.157

S e c o n d , w h i l ec lause 2 i s notexhaustive in its listof what a Courtdec i s i on m igh tentail (i.e., it doesstate “among otherthings”), it men-tions only repara-tion for the vic-tims, and fails tomention the im-p o r t a n c e o fpunishing perpe-trators. This couldbe misread as im-plying that the lat-ter is secondary interms of Court decisions. Third, unlike otherprovisions in the LoGA (such as regardingthe DPRA or even, as discussed below, theTruth and Reconciliation Commission), thereis no mention of how a HRC should befunded (e.g. from which budget funding wouldcome from), what timeframe a HRC shouldbe established in and, finally, whether the

details of the establishment of a HRC shouldbe specified by qanun. Fourth, the MoU states,in article 1.4.5, that “all civilian crimescommitted by military personnel in Aceh willbe tried in civil courts.” This may beinterpreted as restricting the Human RightsCourt’s jurisdiction to exclude crimescommitted by military personnel, thusseriously undermining the courts credibility.

On the other hand,the article may bei n t e r p r e t e d a spreventing crimesc o m m i t t e d b ymilitary personnelfrom being tried inmi l i tar y cour ts,which may have atendency to pro-tect its forces. TheLoGA provides nofurther clarity onthis issue. Theseweaknesses of thecurrent provisionrender a feeble andp o t e n t i a l l yineffect ive nor-mative legal fra-m e w o r k f o r

addressing humanrights abuses in Aceh.

Some observers to the peace process haveargued that “too much emphasis on humanrights investigations” can undermine thesuccessful implementation of the MoU,158

presumably because it would antagonize hard-line TNI elements and those in the civilian

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157 A Human Rights Court established as per Law 26/2000 on Human Rights Courts would at least have a jurisdiction extending as far back as2000. Indeed, other legal experts argue that the violations committed during the thirty-year conflict constitute gross human rights violationsthat were clear offences at the time of their commission and are crimes under international customary law. As a result, the overriding interest

to prosecute gross human rights violations and prevent a culture of impunity outweighs the principle of juge naturel (the guarantee to be triedby a pre-constituted court). Acehnese NGOs, as well as Human Rights Watch, advocate for the Human Rights Court for Aceh to try humanrights abuses committed during throughout the conflict, not just since the August 2005 peace agreement. See, Human Rights Watch; AcehHuman Rights Court Must Address Past Abuses; 26 May 2006; at http://hrw.org/english/docs/2006/05/26/indone13463.htm..

158 ICG, Aceh, A New Change for Peace (ICG, Jakarta/Brussels: Asia Briefing No 40, 15 August 2005), p. 13.

Victim of human rights violations during the conflict.


administration that either allowed or promotedpast human r ights violat ions. Similararguments can be made about ex-GAMperpetrators of human rights violations.

On the other hand, NGO critics argue thata failure to establish a meaningful investigativeprocess to effectively handle human rightsgrievances will lead to a “deep-seated griefthat could become the seed for revengefor the Acehnese people” and “strengthenthe culture of impunity”159 for humanrights violations. Still others argue thatimpunity for serious violations committedin the past, but still present in the publicmemory, sows discontent, weakens the ruleof law, and erodes the prospects of buildingsustainable peace.160

With regards to the Truth and ReconciliationCommission (TRC), article 229(2) of theLoGA requires the Acehnese TRC ‘not tobe separate from’ the national TRC. Hereinis the first problem, as the national TRC isyet to be established.161 As with the HRC,

there is no legally-binding time frame for theestablishment of either the Aceh TRC or thenational one.

A second problem arises from the fact thatthe law governing the establishment of thenational TRC, Law 27/2004, is currently underConstitutional review. There are a number ofconcerns that have been raised with the Lawfrom which it is under review. These includethat:

• There are provisions for amnesties forthe perpetrators of genocide and crimesagainst humanity;

• Reparations, which are a victim’s right,are made conditional and contingent.Victims are required to forgive in orderfor the victims to receive reparations andfor the perpetrators to receive amnesties;

• Truth-seeking only focuses on individualcases and does not contain provision forhistorical analysis or the establishmentof systematic patterns of violations;

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159 Aceh Kita, 12 January 2006.160 Eduardo Gonzalez, email correspondence, ICTJ; much of the analysis regarding the legal frameworks/issues for the establishment of a Human

Rights Court and a Truth and Reconciliation Comissión are drawn from comments provided by Gonzalez.

161 While the nomination of Commissioners has started, President Yudhoyono has encountered obstacles in garnering sufficient support toestablish the national TRC. Tony Hotland, ‘SBY still seeking political support for truth body’, .Jakarta Post, Friday, February 24 2006, p. 4.

BOX 19: BURYING THE PAST OR SEEKING CLOSURE ? INONG BALEE

During the conflict, N’s husband was a member of the police. He was kidnapped when travelling from locationA to location B. N approached GAM to locate her husband’s body but was told that the police had killed him,not GAM. His body still has not been recovered. Even now, with the MoU and everybody returning to ordinarylife, GAM will still not reveal where his body is buried. N feels treated unfairly by GAM, “my husband was agood person and never hurt anybody”. In searching for his body, N became depressed and now suffers from highblood pressure and other illnesses. Her condition is only getting worse because she is concerned about her childrenand their future without a father. Now she only hopes that she can find her husband’s body so that she can buryhim properly.

FGD, Widows of Conflict, Village CA9.

Z is a mother of two. Her husband was killed by GoI security forces in 2003; his body has not yet been recovered.Z has not reported the incident to any authorities, including the keucik because he informed on her husband tothe TNI. She claims that her husband was never part of GAM, he was an ordinary person. So far the only groupproviding her family with assistance has been ex-GAM. In the past, she was abused by TNI, intimidated andkicked when she was two months pregnant, had her house searched for weapons, and her personal belongingsdestroyed. She feels that she has been treated unjustly. Now she is unsure what will become of her children andwonders if the injustice her family has experienced will create a sense of vengeance within the minds of herchildren as they grow older.

Interview, Widow of Conflict, Village CA5.


• Crimes under International HumanitarianLaw applicable to non-international con-flicts are not considered; and

• The existing legislation does not includea function for the TRC to recommendmeasures of non-repetition or to havemechanisms of publicity.

Unless these concerns are addressed by theConstitutional review, the national TRC mayend up being ineffective in handling grie-vances and obtaining truth and reconciliation.If the Aceh TRC is meant to be based on thenational TRC, the same may be the case forthe Aceh TRC.

6.3 Syariah Justice System

The assessment identified a number of factorsthat diminish the capacity of the Syariah justicesystem to handle grievances effectively. Asdefined above, effective grievance handlingimplies case handling that is consistent withlaw and human rights principles, expedientand impartial. Institutions of the Syariah justicesystem in Aceh today, particularly the WilayatulHisbah (WH) and the Courts, face challengesin handling grievances effectively.

Wilayatul Hisbah

With respect to the WH, the assessmentexamined not precisely how they ‘handledgrievances’ but instead how the institution

fulfilled its function of monitoring complianceto Syariah Law. The primary concern is that,while the WH is mandated to monitor Syariahcompliance, they have been overstepping theirjurisdiction and treating citizens in a mannerthat could potentially violate ConstitutionalLaw and human rights principles. A numberof Acehnese have expressed concern atthe heavy-handed manner in which the WHhave attempted to uphold social morals -accusing them of being “arrogant andoverzealous”.162 For example, on severaloccasions members of the WH have violatedcitizens’ rights by arbitrarily dispensingpunishments to women without due legalprocess in the Syariah Court.163 Arbitrarypunishments have included: cutting offthe hair of women caught without a jilbab(head scarf); slapping of women; unlawfuldetention; and, cutting the pants of womenthat are considered by WH members to fittoo tightly, thus shaming women publicly.

Box 20 descr ibes one occas ion thatresulted in a violent community backlash.

The above incident signposts potentially moreviolent community responses to the impo-sition of Syariah Law in ethnically plural ornon-Acehnese districts.164 For example, non-Acehnese residents in Aceh Tengah that holddifferent views of Syariah to policy-makers atprovincial government level openly claimedduring the assessment that if the provincial

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BOX 20: WILAYATUL HISBAH: COMMUNITY RESPONSE TO MORAL POLICING

In Kota Sabang, WH officers once arrested an innocent young girl they suspected of being a prostitute for themere reason that she was standing ‘with no purpose’ on the roadside. The girl’s family complained about theincident. However, the WH officers insisted on detaining the girl. Upon hearing of the incident, communitymembers from her village became angry and joined together to raid the WH office, whence the girl was released.The WH officers apologised for the incident.

162 Nani Afrida, ‘Acehnese accuse religious police of arrogance and thuggery’, Jakarta Post, Thursday, February 23, 2006, p. 5.

163 Workshop Findings, 16 March 2006, Banda Aceh.164 See, ‘Parties warn of conflict over contentious local regulations’, The Jakarta Post, 20 March 2006. In other settings the imposition of Islamic

law on culturally heterogeneous Islamic societies has led to violent communal killings, as was the case in Pakistan during the 1980s; ‘Does ithave to be war?’, The Economist, Volume. 378, Number 8467, 4 March 2006, p. 25.


government imposes a particular Islam thatdestroys local traditions they will “fight”.165

There are a number of factors that lead tothe WH going about their duties in the above-described manner.First, WH personnelare not providedwith tra ining oncriminal procedure,nor on human rightsprinciples. Trainingconsists of “merelysome days with thenormal police tolearn how to standto order.”166 Thishas led to weakcapacity in terms offulfilling their func-tions of monitoringcompl iance wi thSyariah Law in amanner that is con-sistent with nationallaw and interna-tional human rightsprinciples.

Additionally, procedural irregularities withthe actions of the WH also spring from a lackof guidelines and standard operationalprocedures regulating the conduct of WHofficers. These weaknesses provide signi-

ficant opportunityfor violat ions ofConstitutional Lawand human rightsprinciples.

Second, police aregenerally confusedabout coordinationwith the WH andsomewhat reluctantto par t ic ipate in“sweeping opera-tions” given legaluncertainties surro-unding WH actionsand nature of ar-rests they conduct.Some police officersbel ieve that theyhave no powers toconduct arrests ofpeople v io la t ing

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165 FGD, Villagers, 17 February 2006, Village CA2, Aceh Tengah.166 For example, officials from Banda Aceh’s prosecutor’s office point out that “Procedural law is not regulated clearly in the Qanun. This

leads to a worry that the lower level regulations will override the higher level regulation…If we make amendment to the Qanun and regulateprocedural law ourselves, it would conflict with provisions in the KUHAP”; Interview, Attorney’s Office Official, 8 February 2006, BandaAceh.

BOX 21: VOICES OF THE POWERLESS: WILAYATUL HISBAH ABUSES OF POWER

Voice A: 9 February 2006. Last night we were caught by WH officers at Sultan Hotel. We were detained by theWH for not wearing a jilbab while inside the hotel.The officers entered the hotel without having a permit fromthe hotel’s management. At that time we were sitting in front of the room, discussing materials for the trainingworkshop.We had been staying at the hotel for a couple of days and the WH came last night and forced theirway in. While I was sitting and having a discussion with three other colleagues, WH officers suddenly came, andforced us to go downstairs and to get into the WH vehicle. At the police station, we were interrogated with harshquestions and asked whether we believed that our actions aroused the penises of men. An officer threatened toslap one of us when getting the name of a WH member.

Voice B: Our colleagues had already been arrested for an hour when I and some other colleagues visited themat the police station. We and the National Women’s Commission had a negotiation with WH officers, but theystill refused to release our colleagues. WH officers then demanded that their families come get them. We toldthem that they didn’t have any family members here. We were then asked to sign three documents of assurancethat stated, if one day the WH caught any of the same people again, they would be arrested and subject topunishment.

Drawn from letters written by women NGO workers arrested by the WH.

Wilayatul Hisbah patrolling vehicle.


moral codes of conduct as this is not anoffence under national law.167

Under article 133 of the LoGA, police aremeant to enforce Syariah Law. Further legalproblems arise from Article 5 of Governor’sDecree 1/2004 which stipulates that themuhtasib (officials of WH) are authorized to:a) receive complaint reports from thecommunity; b) stop someone on the streetsuspected to be in violation of SyariahLaw; c) ask for identity papers fromanyone suspected of violating Syariah Law;and d) stop any activity suspected ofviolating qanun. Interpreting such stipu-lations literally means that the enforce-ment powers of the WH go far beyond theenforcement powers given to the police underthe KUHAP (Criminal Procedure Code).

Leading to greater confusion and possibleviolations of Constitutional Law and humanrights principles is the fact that particularelements of Syariah Law remain open to in-terpretation. The starkest example of this isin relation to the wearing of Islamic dress,which for women must cover the aurat (everypart of the body except face, hands and feet).There have been examples in which WH of-ficials have detained women who, althoughcovered, were accused of wearing clothes

that were too tight. The subjectivity of de-termining what constitutes a violation in casessuch as these has led to a culture of fear,particularly among urban women in Aceh.

Box 22 outlines competing views aboutanother criminal offence of Syariah Lawthat remains open to interpretation and hasbeen subjectively enforced by the WH.Currently, the district/municipal muhtasib ismeant to submit a periodic report to thedistrict/municipal Dinas Syariat Islam withcopies sent to the provincial Dinas SyariatIslam. There is no other external oversight oraccountability for the WH, especially in viewof the fact that, by reporting to the DinasSyariat Islam, the WH effectively reports onlyto a provincial, and not a national, body.In fact, the few voices of public dissentagainst the powers of the WH have beensilenced through passive forms of intimidationand social stigmatization (e.g., subject toaccusations of being “unreligious” or, even,“inviting another tsunami”).

Syariah Court

The assessment identified a number offactors that diminish the effective handlingof grievances by the Syariah Courts. First,the Syariah Courts operate with the same

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167 Interview, Police Officials, 23 February 2006, Pidie.

BOX 22: MORAL OFFENCES PUNISHABLE UNDER QANUN

“Indecent behaviour consists of behaving like a husband and wife, for example kissing in public, and individualswho do so can be arrested. There are three categories of indecent behaviour. First, sitting in a quiet or desertedplace which, if left alone, will lead to a ‘worse situation’, then it is our duty to warn the person and tell the personto go home. Then, for holding hands and kissing, we will arrest the perpetrators and bring them to the policeoffice, then we summon the parents and afterwards they can all go home. Finally, if it concerns sexual activitywe cannot tolerate it at all. We will arrest the perpetrators and hand them over to the police for further processing.”

Interview, WH Official, 27 February 2006, Banda Aceh

“Qanun relating to khalwat is unclear and gives rise to injustice for people. The khalwat states that two persons (amale and a female) who are in an isolated place, go in the direction of khalwat, in what sense is this a violationof khalwat, simply because they alone in an isolated place? It states there is an act of embracing, throwing one’sarms around. Therefore, it is somewhat unclear to testify that the act is categorized into khalwat asthe Qanun doesnot mention ‘into the direction’”.

Interview, Vice-Chairman Lhokseumawe district court, 19 January 2006, Lhokseumawe


procedural rules as those applicable to theGeneral Courts. However, Syariah judges’acknowledge that their understanding ofcriminal procedure is weak as their jurisdictionand therefore experience has, until the recentpromulgation of the four qanun related tocriminal offences, been limited to civil cases.168

Syariah Court judges stated that the Courtfaces no obstacles in carrying out its dutiesand that, as long as a plaintiff can produce asurat miskin, or letter of poverty, their casewill be treated free of charge. Additionally,cases relating to the tsunami were treated freeof charge based on a decree from the SupremeCourt.169 Judges stated that, as long aswitnesses can attend when summoned, casesare generally resolved within three days.170

Nevertheless, the assessment found that poorcourt infrastructure and administrativeprocedures undermine the effectiveness ofcase handling in the Syariah Court, similar tothe sorts of capacity weaknesses thatundermine case handling in the GeneralCourts. Courts report shortages of personneland logist ica l suppor t mater ia l , poorinformation and case management systems(i.e., use manual recording and case filing),and lack computers. It is also reported thatinsufficient funding has meant that Courtpersonnel never visit the areas covered bytheir jurisdictions. Increased territorialjurisdictions and responsibilities have notbeen accompanied with increased budgetaryal locat ions from ei ther provincia l ordistrict/municipality governments. Moreover,there are not any officially trained mediatorsassigned to the court to help find amicableresolutions of disputes between claim-holders. 1 7 1 These problems are morepronounced in tsunami-affected areas like

Banda Aceh. Although the Syariah Courtoffice was not damaged, nearly all supportingfacilities and infrastructure such as thecourtroom, computers, and filing systemswere destroyed. The Syariah courtroom isnow operational, but supporting facilitiesand infrastructure remain inadequatefor ensuring normal cour t funct ions.

Procedures for handling criminal cases arealso poorly developed. Legal practitioners inAceh explain that this leaves the Syariah Courtlearning from and adapting General Courtprocedures. The Syariah Court judges rarelyattend trainings and lack experience inhandling criminal cases. Neither have theyattended any human rights training. In someinstances, officials argued that human rightstraining is not necessary because principlesof human rights underpin Syariah Law, asbased on Islamic teaching. On the other hand,Syariah Court judges have stated that there isa tremendous need to introduce a range oftraining programs to build the administrativeskills and capacities of court personnelto handle grievances more effectively.

The problem faced by the General Courtsregarding territorial jurisdiction due toadministrative sub-divisioning (pemekaran) isfaced by the Syariah Courts as well and actsto diminish the effect ive handling ofgrievances for the same reasons that it doesso with the General Courts (see section 6.1).As an example, some cases that arose incertain areas of the District of Aceh Utaraare being filed at Lhokseumawe MunicipalSyariah Court because of the long distanceand associated high costs of travelling toLhoksukon, the capital of Aceh Utara wherethe Aceh Utara District Syariah Court is

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168 Interview, Syariah Judge, 8 January 2006, Banda Aceh.169 Interview, Syariah Judge, 12 January 2006, Banda Aceh.170 Ibid.171 Ibid.


found.172 The problem with this is that theterritorial jurisdiction of the LhokseumaweCourt does not cover Aceh Utara, whichmeans that it has no legal competence to trycases originating from this other District.173

Similar problems exist with the Syariah Courtin Takengon, Aceh Tengah, with regards tothe newly created District of Bener Meriah,which used to be a part of Aceh Tengah.174

Finally, while Syariah jurisdiction and theSyariah bureaucracy have expanded since 2004,the provincial budget al located to theadministration of Syariah has not increased,reducing its ability to deal with a growingcaseload. Moreover, plans to fund the SyariahCourt from the provincial budget, as providedfor under article 136(2) of the LoGA, mayendanger its political independence and abilityto administer justice fairly and equally.

6.4 Adat

The fo l lowing sect ion examines theways in which adat duty-bearers handlegrievances, their effectiveness in doing soand the challenges they face.

Keuciks handle small administrative mattersdirectly, but will generally invite other adatleaders, such as the tuha peut, to help resolvemore serious justice grievances. In order toresolve disputes, the adat leaders will conductmeetings with disputing parties separately tosolicit their views and provide them anopportunity to make peace. The adatleaders may then hold an internal meetingin order to formulate common understandingsof the problem and plan a follow-up meetingthat brings together disputing parties. During

this follow-up meeting, the adat leaders willgive advice to the parties to the grievance forproblem solving. The meeting at this levelcan be held more than once, during whichtime the adat leaders essentially persuadedisputing parties to settle the case. If settled,the leaders may draft a letter of agreementto be signed by the disputing parties andkept by the keucik. If agreement cannotbe reached, the problem is then submittedto the imam mukim or camat.

In practice, the process is flexible but gene-rally proceeds along these lines. Indeed, theassessment found numerous variations tothe process outlined above. For example, itis not always the case that all of the adatleaders participate in resolving disputes. Thelevel of involvement by duty-bearers dependson the nature of the dispute and the availa-bility of leaders, who may for exam-ple beoccupied with their subsistence livelihoods,thereby introducing constraints to parti-cipation and coordinating mediation efforts.

Although no standardized approach existswith village level dispute resolution processes,several practices for handling and resolvingcases were commonly identified: seekingtestimony from several witnesses that canbe cross-checked; requiring witness oathsbefore giving testimony; imposing sanctionsfor false testimony; re-questioning witnesseswhose truthfulness is in doubt to establishconsistency; and inspecting physical evidence.Evidence in such cases is typically oral, butcan sometimes include visits by duty-bearersto inspect damaged property or crops. In allassessment sites, there appeared to be noprocedures for documenting evidentiary

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172 To date several subdistricts like Krung Gekueh and Krung Mane still file their cases with Lhokseumawe’s Syariah Court. This is despite thatboth are part of the administrative jurisdiction of North Aceh, and fall therefore under the jurisdiction of Lhoksukon’s Syariah Court.Lhokseumawe has a Syariah Court of which jurisdiction covers Lhokseumawe. Juridically, Lhokseumawe’s Syariah Court has only authorityto examine and hear cases inside its jurisdiction.

173 Krueng Raya subdistrict is administratively a region of Aceh Besar District, and therefore under the jurisdiction of Jantho Syariah Court. Todate the community in this region always files its cases at Banda Aceh Syariah Court.

174 Interview, Secretary of Takengon Syariah Court, 30 January 2006, Aceh Tengah.


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if cases cannot be resolved through informaljustice mechanisms. Villagers also stated thatthey would be reluctant to present oralevidence in the formal courts because ofsocial taboos that prevent people from takingproblems outside of a village. In practice, thetypes of cases heard in informal justice forumscan include:

• N o n - o r e x t r amarital relation-sh ips be tweenopposite sexes;

• Unfair accusa-tions of adulteryor other libel;

• Incest;• R e - m a r r y i n g

within the time of`mourning;

• Family matters(e.g. , land dis-putes, domesticviolence, rape,murder);

• Le t t i ng c a t t l eroam so that theydamage crops orgardens;

• Petty theft;• Human r i gh t s

violations com-mitted by GoI security forces and GAMcombatants.

As stated earlier, most community level justicegrievances identified during the assess-mentare dealt with at village level through adatjustice forums. However, there are a varietyof challenges that impede the effectivehandling of grievances through this forum.First, there are a number of problems thatarise out of the normative legal frameworksurrounding the adat justice systetm to do

with the system’s jurisdiction and proceduresemployed in dispute resolution and casehandling.

Concerning jurisdiction, Perda 7/2000 andQanuns 4 and 5/2003 state that adat justiceproviders have a duty to resolve disputesrelating to the adat law and custom with nofurther explanation as to the adat law and

c u s t o m t h e s econstitute. Neitherdoes the LoGAprovide more clarity.T he a s s e s smen tfound tha t per-ceptions vary greatlyamong adat justiceproviders as to theirjurisdiction. Thisconfusion leads tou n c e r t a i n t y f o rdisputants. It alsoraises questions ofconsistency withnational and inter-national law of theadministration ofjustice.

For example, insome areas of Aceh,adat justice provi-

ders believe they can and should examinecriminal cases, including murder, incest anddomestic violence. In Aceh Tengah, adatjustice providers explained that, if ‘blood isspilt’ but the two parties can be reconciled,compensation consists merely of sacrificinga bull. Some imam mukim and keuciks haveresponded that there are some types of casesthat they would refer immediately to the policebut, when asked to provide examples of suchcases, they were unable to provide clearcategories of cases. One imam mukim stated

An example 'letter of agreement' between disputing parties that

was resolved by local adat leaders.


that cases of theft within the village wouldbe referred immediately to the police “becauseyou cannot change thieves – once a thief,always a thief – and the punishments thatpolice impose are stronger than those whichcan be imposed by us.” The same imam mukimproceeded to state that other criminal cases,including domestic violence, could be dealtwith in the village. While different conceptsof justice exist the world over, extending thejurisdiction of adat to violent criminal casesraises concerns from a human r ightsperspective regarding the ability of adat justiceproviders to administer justice that issatisfactory to the victim while simul-taneously protecting the rights of the accused.With regards to domestic violence, forexample, the assessment found that, as suchviolence is traditionally not considered acrime, adat dispute resolution of theseviolations often leads to victims beingcoerced into unfavourable sett lements(discussed in Chapter 5).

Some for mal jus t i ce prov iders haveconsequently suggested that adat jurisdictionshould be restricted to criminal cases ofa non-violent nature, such as petty theft.This indeed may be more appropriate asthe resolution of such cases through theformal system as it exists today in Acehwil l lead to case backlogs, while alsoproducing an unnecessarily high socialburden on parties to the dispute.

Additionally, the issue of jurisdiction raisesthe question of whether adat should bepermitted to examine all civil and family lawcases, which – as the assessment revealed –is the understanding of the majority of adatjustice providers. For example, should casesconcerning formal ownership of land(particularly if the dispute is between privateand communal c la ims over land) orconcerning claims that exceed a particularvalue be dealt with by adat ? The assessmentdisclosed that there are strong indicationsthat adat justice providers are, first, notequipped to deal with such cases and,second, may prioritise certain interestsrather than acting as a neutral mediator in thedispute. In conclusion, confusion regardingj u r i s d i c t i o n l e a d s t o u n c e r t a i n t yfor disputants while, from a human rightsperspective, raises serious concerns as tothe fair administration of justice.

Finally, Qanun 4/2003 on the GampongGovernance Structure empowers the gampongleadership (namely, the keucik and tuha peut)to ‘promulgate and codify’ village-level aturan(regulations), petunjuk (directives, guidelines),and adat customs. Once in agreement, thegampong leadership must forward the newlypromulgated pronouncement to the Bupati(district head) or Walikota (municipality head)within 45 days, who has an additional 45 toreject the pronouncement. The assessmentdid not find any instances of gampong

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BOX 23: TUHA PEUT

We haven’t been involved in any problem solving yet. We, as tuha peut/tuha lapan, have never had any single meetingto assess the keucik’s performance. Community gathering between community leaders has never been held. Thecandidates of tuha peut/tuha lapan come from dusun (sub-village; neighbourhoods of a village); there are 11 membersof tuha peut/tuha lapan. One of us is a female member and others are male members. I don’t know who the femalemember is or from what sub-village she comes from.”

Interview, tuha peut, 9 February 2006, Village TA8.


leaderships having passed aturan. However, itis worth pointing out that, in the absence ofclear legislation delineating the types of casesthat might be dealt with through adat, such aprovision could, if unchecked, lead to the‘promulgation’ of aturan that are inconsistentwith national and human rights laws.

A second factor related to the normativelegal framework surrounding adat that impedesthe effective handling of grievances concernsprocedure. The concern that a widejurisdiction may compromise effectivegrievance handling is compounded by the factthat the relevant legislations provide no clearlegal procedures to govern adat disputeresolution. First, the relevant legislationrelating to adat contain no safeguards to ensurethe rights of the disputants, including the

presumption of innocence, the right torepresentation and the right to appeal. Second,there are no guidelines as to whether adefendant guilty of repeat offences cancontinue to have his/her case heard onlyby the adat justice system. Finally, thereis a need to clarify that particular punish-ments imposed by the ada t sys tem,cont ravene human r ights s t andards.

The relevant legislations are also unclear onthe intersection of adat with the formalGeneral and Syariah justice systems. Oneprovision requires cases to be dealt with firstby adat justice providers before they arepermitted to be addressed by the formaljustice system.175 This provision is inconsistentwith citizens’ right to opt for the formaljustice system under Indonesian constitutional

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175 Article 10 of Perda 7 / 2000 on the Establishment of Adat Life.

Examples of Effectiveness of Adat in Handling Grievances

Village CA2,Village CA3,Village CA1

Village CA5

Village CA6,Village TA 5,Village TA6

Village CA4

Village CA9,Village TA8

Cultural and ethnic divides among ethnically heterogeneous villages underminingadat as dispute resolution mechanisms. During the conflict GAM viewed adatas a mechanism for disengaging from formal state justice mechanisms andpromoting local independence. Resulting political divisions between pro-RIand ex-GAM undermine the coherence of traditional conflict resolutionmechanisms. Politicized imposition of Syariah can potentially lead to conflictwith community members that ascribe to Positive State Law and citizenshiprights guaranteed by the Constitution.

Ethnically homogenous village. Divisions between ex-GAM and ex-militia haveundermined the coherence of traditional conflict resolution mechanisms.Lingering political mistrust and grievances between groups.

Adat seen as a traditional method of resolving disputes and a means by whichto further gain local level independence. Mechanism strongly supported by ex-GAM. During the conflict, used as a means of gaining greater levels of localindependence and disengaging from formal state justice institutions (i.e., Adatas law versus Positive State Law underpinned by political and economic grievanceleading to secessionist movement).

Village governance structures fractured by TNI security operations.Village suspected of harbouring GAM during the conflict.

Tsunami destroyed or fractured village governance structures. Adat mechanismsunable to effectively mediate dispute resolution as a result.

Assessment Sites

TABLE 6: EXAMPLES OF EFFECTIVENESS OF ADAT IN HANDLING GRIEVANCES


law, as well as the national Human RightsLaw 39 / 1999.176 This inconsistency is furthercompounded by a provision that states thatan imam mukim’s decision is ‘f inal andbinding’177 Some adat justice providers perceivethis to mean that there are no further levelsof appeal within the adat system after an imammukim and that, if disputants are unsatisfiedat this point, they can proceed to the formalsystem. However, this legal interpretation isunclear and implies a certain hierarchy ofjustice forum within the adat system (a sortof appeals process as in the formal system)before they can seek resolution through theformal system. In practice, the assessmentfound that adat leaders and village respondentsgenerally knew that they could access theformal justice system if they so wished. Asdiscussed in Chapter 5, there are a numberof other reasons why, in actual fact, theAcehnese continue to rely predominantly onthe adat just ice system. Never theless,these ambiguit ies can serve to hindercitizens’ access to justice.

Arguably, the main strength of adat is itsfluid and flexible nature that is able, becauseof an absence of codified rules, to respondto the needs of a community at a given time.However, the lack of clarity regardingjurisdiction and the absence of a minimumset of procedural standards can severelycompromise the r ights of disputants.

Other challenges to effective grievancehandling include the fact that, in ethnicallyand politically divided villages, particularly inconflict-affected areas, mistrust can existbetween citizens, as well as between citizensand the village leadership and adat justice

providers. This mistrust undermines villagers’confidence in the adat system, therebyweakening it and its abil ity to handlegrievances. The starkest example of this wasfound in one location (Village CA5) wherethe keucik had been the leader of a local militiagroup known as Berantas (Barisan RakyatAnti-Separatis ; People’s Bastion againstSeparatism). Since the signing of the MoUand the return of ex-GAM combatants to thevillage, this keucik has had to move to thedistrict capital for his own security. Thevillagers no longer consider this man theiradat leader, although he continues, at leastformally, to be their administrative villageleader. They now rely on other elders intheir village to resolve disputes. This exampledemonstrates that effect ive g r ievancehandling relies on the community’s accep-tance of those seated in the adat institutionpositions.

Second, the conflict and tsunami have led toinstances in which communities are dislocatedfrom their adat leaders because of displa-cement.178 The assessment came across anumber of examples in tsunami areas, espe-cially in Banda Aceh, where villagers neededthe assistance of their adat leaders to resolvegrievances but were unable to locate them orwere in camps too distant from them. Thishas contributed to weakening adat structuresand their abil i ty to handle grievanceseffectively.

In heavily tsunami-affected sites, someadat leaders died as a result of the naturaldisaster. This has required the formation ofnew adat leaderships, often comprised ofa younger generation. The assessment found

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176 Article 28D(1) of the Indonesian Constitution provides for “just legal recognition, guarantees, protection and certainty, and to equal treatmentbefore the law.” Article 17 of the Human Rights Law states that every person has the right to “without discrimination, obtain justice by lodgingan application, complaint, or claim in a criminal, civil or administrative case, and to have the case heard in a free and impartial judicial process.The process must comply with procedural law and involve an objective examination of the case by an honest and just judge in order to obtaina just and correct decision”.

177 Article 12 (3) of Qanun 5 / 2003 on the Gampong Governance Structure. The imum mukim is an adat justice provider that covers a collectionof villages also known as a mukim.


that, while these new adat leaders oftenhad greater administrative skills (due tohigher rates of literacy and education), theysti l l lacked experience, knowledge andthe charisma required to be genuinelyrespected by the i r communi t ies andundertake effective grievance handling.

Third, the assessment concluded that, invillages where the administrative structuresand skills of the leadership are weak, not allthe adat institutions listed in the relevantlegislation exist, undermining the adat systemsgrievance handling capacity. That is, in manyvillages where there was no village office,where the keucik had weak administrativeskills, and record keeping was poor, not allthe adat institutions that are listed in thelegislation and traditionally administerleadership would actually exist. It appearedthat, where administrative skills and structureswere stronger, village leadership had moreknowledge of the relevant legislation relatedto adat institutions and were keener to putthese legislations into practice and utilise theadat institutions. As a consequence, grievancehandling was generally stronger in thosevil lages with complete adat structures.

For example, the assessment showed that theadministrative structure of the imam mukimapparatus has not, in most villages, beenestablished as stipulated by law.179 Amongother things, imam mukims rarely have officesfrom which to operate.180 Additionally, whilea position as imam mukim earns social respect,the position is – unlike that of keucik -generally unpaid, rendering it difficult for

individuals to put substantial time and energyinto the job. This has also left imam mukimsworking without administrative staff.181

As a result, the imam mukim’s performance islargely determined by his personal integrityand charisma. Also, imam mukims tend to bevery old, which can sometimes underminetheir ability to do their job effectively(e.g., unable to travel to villages extensivelyor coordinate between villages). The absenceor weakness of this position due to weakadministration diminishes the grievancehandling capabil ity of the adat justicesystem.182

A third issue leading to ineffective handlingof grievances is due, as mentioned earlier, tothe emphasis placed by adat custom onrestorative justice geared at maintaining socialharmony over the individual’s interests. Theresult is that the handling of grievances canbe ineffective because the priority is to ensurea peaceful settlement rather than to resolvethe root cause of the dispute. Additionally,a s the f ina l dec i s ion can of ten beunsatisfactory to individual parties, thegrievance may arise again in the future. Theprimary example encountered during theassessment was of domestic violence cases.Adat grievance handling is largely ineffectivein these cases because settling the disputepeaceful ly did not guarantee that theperpetrator would not commit the crimeagain. Indeed, many respondents who werevictims of domestic violence said that theirhusbands cont inued to assau l t themaf te r in te r vent ions by ada t l e aders.

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178 Interview, IDP Camp Coordinator, 22 February 2006, Banda Aceh; FGD, Widows of tsunami, 7 February 2006, Village TA8, Banda Aceh;FGD, Tsunami IDPs, 8 February, Village TA8, Banda Aceh; Interview, Villager, 7 February 2006, Village TA8, Banda Aceh; Interview,Villagers, 7 February 2006, Village CA9, Banda Aceh.

179 Interview, Imam Mukim, 24 February 2006, Pidie; Interview, Imam Mukim, 22 January 2006, Aceh Utara

180 Interview, Imam Mukim, 23 February 2006, Pidie; Interview, Keucik, 7 February 2006, Village TA7, Banda Aceh.

181 Interview, Imam Mukim, 7 February 2006, Aceh. Interview, Imam Mukim, 23 February 2006, Pidie.182 In urban conflict- or tsunami-affected areas, many respondents reported that they do not know about the role of imam mukim or its authority.

Instead, community grievances are typically resolved by the keucik. For example, over the past three years in one assessment location, theimam mukim has only been involved in settling one land dispute, with respondents further stating that mukim structures in Banda Aceh arenot used by the people. In practice, it appears that the imam mukim has a much less significant role in the governmental system or resolvingcommunity level justice grievances. Interview, Imam Mukim, 10 February 2006, Banda Aceh.


Finally, adat justice providers often admittedthat they have insufficient knowledge of localgovernment functions and procedures toinform the community of alternative optionsand services to resolve their grievances. Oneexample of this is that village leaders, lackingproper knowledge of the criteria to issue suratmiskin (declaration of poverty), sometimesissue these declarations in a discriminatemanner rather than determining entitlementsbased on set criteria. This lack of knowledgecompromises citizens’ ability to access servicesthat could otherwise be free if they possessedthese declarations.

6.5 Oversight and Monitoringof Grievance Handling

The assessment found a dearth of governmentmechanisms in Aceh that actively andindependently act to oversee and enhance theaccountability of justice institutions inhandling grievances. The only nationaloversight initiative that has reached Aceh isthe Komisi Pemberantasan Korupsi (KPK, theCorruption Eradicat ion Commission).However, as discussed in section 3.4.1, theKPK in Aceh is merely a ‘referral’ office. Itcan only receive claims and refer them to theNational KPK in Jakarta. It does not currentlyhave the capacity to act ively overseeand investigate corruption cases itself.

The assessment did, however, identify ahandful of NGOs that are active in overseeingand monitoring formal justice institutionsto increase accountability of grievancehandling. The most notable of the NGOsidentified is the Aceh Judicial MonitoringInstitute (AJMI). Others include –GERAK(Gerakan Anti-Korupsi ; Anti-CorruptionMovement), Koalisi NGO HAM, Lembaga

Bantuan Hukum Banda Aceh, PB HAM,Peduli HAM and TAMASYA. No NGOsoverseeing adat institutions were identified.

Current monitoring and oversight functionsof these NGOs include: monitoring of policyand law development ; monitor ing ofprominent court cases or cases that mightset a precedent; post-trial monitoring of casesand decisions made; and investigatingand monitoring government corruption.

Challenges faced

NGOs face a number of challenges that areimpeding their ability to effectively monitorjustice institutions and their handlingofgrievances. First, although NGO respondentsadmitted that the security situation since thesigning of the MoU has markedly improved,several NGO respondents still harbourconflict-related security concerns regardingmonitoring functions.183 In other cases, NGOpersonnel fled the district during the conflictperiod and have not returned since.184 Dueto conflict-related security concerns, localNGOs engaged in monitoring and humanrights activities undertook “self-censorship”185

to avoid reprisals from both the GoI andthe GAM. One respondent working foran NGO involved in corruption monitoringnoted that the only reason the NGO hasbeen able to function for so long withno interference from the author i t iesis because the father of a leading staff memberof the NGO is a loca l leg is la tor. 1 8 6

Second, NGOs state that their human re-source capacity to undertake monitoringof justice institutions and human rightsis low because, prior to the signing ofthe MoU, there was little space afforded to

183 Interview, NGO, 12 January 2006, Banda Aceh.

184 Interview, NGO, 30 January 2006, Takengon, Aceh Tengah.

185 Building Human Security in Indonesia (Conference Report) http://www.preventconflict.org/portal/main/report_ngo.php.

186 Interview, NGO, Confidential.

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NGOs to undertake such activities. The secu-rity situation during the conflict meant thatNGOs monitoring activities were severelyrestricted, rendering their capacities poorlydeveloped up to the signing of the MoU.

Third, the impact of conflict was com-pounded by the tsunami because thenatural disaster destroyed local NGOinformation networks (e.g., death of staffor destruction of offices).187 For example,one source notes that up to 30 core activistswere ki l led during the tsunami, thusundermining the leadership capacity oflocal NGOs and their abil ity to workeffectively with the massive influx of inter-nat iona l NGOs fo l lowing December2004.188 Moreover, inflationary pressuresfol lowing the inf lux of internationalsraised operating costs, thus making itincreasingly difficult for local NGOs toprovide services effectively and in a finan-cially sustainable manner not to mentionbeing able to keep good staff from mo-ving to INGOs.189

Fourth, given the capacity weaknesses andoperational constraints encountered by NGOsmonitoring and reporting activities tend tofocus on urban areas. Additionally, orperhaps because of this, NGOs tend not tohave as c lose l inks wi th g rass rootscommunities as CBOs, for example, might.This reduces the community’s trust inthem and generally means that it wil ltake more time for community’s to openup and share stories with them, as requiredfor monitoring.190

Other assessments have identified otherorganizational capacity weaknesses of CSOsin Aceh more generally.191 These apply tothose NGOs working to monitor justice in-stitutions as well and include :• Poor human resource management and

capacity;• Lack of operational and financial ma-

nagement systems;• Poor strategic planning and project ma-

nagement;• Poor data collection and analysis; and• Weak monitoring and evaluation proce-

dures.

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187 Interview, NGO, 30 January 2006, Takengon, Aceh Tengah.188 Mubariq Ahmed, Case Study: Civil Society Rebuilding Post-Tsunami Indonesia (Development Gateway, 15 July 2005) http://topics.develop-

mentgateway.org/ict/sdm/previewDocument.do~activeD.189 As reported by the UN’s humanitarian information centre NGO mapping survey forms: NGO Mapping Survey Form (UN Humanitarian

Infor mat ion Center, Banda Aceh , 2005) http://www.humanitarianinfo.org/sumatra/products/LNGO/display_NGO.asp?

190 UNDP, Civil Society in Aceh: An Assessment of Needs to Build Capacity to Support Community Recovery, p. 21.

191 Ibid., p. 18.

BOX 24: IMPACT OF CONFLICT AND THE TSUNAMI ON ACCESS TO JUSTICE

Before the military state of emergency, people were not afraid to come to our office to report arrests of theirfamily members as well as cases of abduction. However, while the military emergency was in force, people nolonger dared to report such cases. If the victim was treated unfairly or had his/her rights violated by GAM, thevictim was afraid to report because of GAM. And if the victim was treated unfairly or had his/ her rights violatedby the military/ TNI or the police, then the victim would be afraid of the military or the police…The level ofviolence was very high…We experienced difficulty in performing our activities in the office and in the field. Atthe time there were rumours that offices of NGOs had to be closed. People became even more afraid to reportwhat they experienced or witnessed…After the tsunami, we were unable to carry out activities for several months.But the security conditions were better and there was no more armed conflict...Cases after the MoU weremostly extortion and assault. Some dared to provide information while others did not. The conflict has causedthe people to still be afraid of claiming their rights.

Interview, NGO, 20 February 2006, Pidie

Chapter 7Remedies Obtained and Sanctions Enforced


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Chapter 7 - Remedies Obtained and SanctionsEnforced

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A key component of an effective justice sys-tem is ensuring that remedies are obtainedand sanctions enforced in a satisfactorymanner. This means that the remedies andsanctions are appropriate and the enforcementthereof is consistent with national and inter-national standards and law.192 This Chapter

considers the appropriateness - from a nationaland international legal perspective - of reme-dies and sanctions imposed by the differentjustice systems in Aceh. It also examines theability of these justice systems to enforcethese remedies and sanctions in order to en-sure c la im-holders ’ access to just ice.

192 UNDP, Programming for Justice: Access for All, p. 60.


LegalAwareness





TABLE 7: KEY FINDINGS: REMEDIES OBTAINED AND SANCTIONS ENFORCED

- Community members believe that sanctions imposed for offences tend to bedisproportionately heavy and poorly enforced by courts.

- Insufficient resources exist for the courts / prosecutors /police to enforce decisions.

- Syariah Courts have effectively managed non-disputed, declaratory decisions relatedto ownership, inheritance and guardianship in post-tsunami context.

- Caning as a punishment violates human rights principles. Some argue ...that caninis quick and less costly.

- Outcomes promote harmony over individual rights.

- Powerful community figures can manipulate remedies and sanctions to .their ownadvantage at the expense of vulnerable groups.

- Certain punishments may violate human rights principles.

- Decisions are often poorly enforced.


General JusticeSystem

Adat JusticeSystem



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193 See, for example, Dr. Andi Hamzah, SH., Pengantar Hukum Acara Pidana Indonesia (Introduction to the Indonesian Criminal Code),GhaliaIndonesia, Jakarta, 1984, page 262; and, Retnowulan Sutanto and Iskandar Oeripkartawinata, Hukum Acara Perdata Dalam Teori dan Praktek,(The Civil Code in Theory and Practice), Mandar Maju, Bandung, 1995.

194 Interview, Vice Chairman Lhoksemawe District Court, 19 January 2006, Lhokseumawe.

BOX 25: DISPROPORTIONATE PUNISHMENTS

X, an indigent with a low level of education living in an isolated rural area, was caught while attempting to steala fish from another villager’s fishpond. X fled the village and returned four months later, at which point the Keuciktook X to POLSEK. While detained at POLSEK, he was kept in a small room, which was actually a latrine, andhad to sleep in a seated position. He had to defecate and urinate in the same room. He was given two meals aday. X claims that he was beaten by police officers (blows by hand or hard objects) and had water poured overhim every night. This lasted for a month.The police then told X that if he wanted to be released he had to paythem Rp 6 million. Unable to pay the sum, X’s case was then submitted to Lhoksukon’s Public Prosecutor.

X claims that friends and family were always required to pay prison guards Rp 5,000 when visiting him. Afteran additional month in the Lhoksukon prison X was summoned to the court. During hearings court officials didnot appoint legal representation for X, who by law was entitled to free legal representation to be appointed bythe court. After a second hearing, the judge imposed a penalty of eight months imprisonment, reduced by twomonths he had already served.The public prosecutor then told X that he would reduce his sentence if X paidthe prosecutor Rp 1 million. As X had no money to pay the bribe or appeal the decision, he accepted the penaltyimposed by the judge. After serving four months, prison guards offered to release him if he paid Rp 800,000.

Interview, Villager, 22 January 2005, Village TA 5.

7.1 General Justice System

Appropriateness of Remedies andSanctions

The assessment did not assess in any depththe appropriateness of remedies and sanctionsimposed by the General justice system becausethe remedies and sanctions that are appliedunder this system in Aceh are those that areapplied across the archipelago under Indone-sian Law. There is an abundance of literatureon this topic.193 There was, however, onepoint concerning the appropriateness ofremedies and sanctions that was raisedseveral times by respondents, which ishighlighted here.

Several NGO respondents stated that sanc-tions imposed by the General Courts in Acehare disproportionate to offences committed.That is, minor offences will be harshly pun-ished, while more serious offences, such ascorruption, receive a virtual ‘slap on the hand’.

This is an important finding in the contextof Aceh (and Indonesia more widely, for thatmatter) where corruption, according to thisassessment, is prevalent and exists at all levelsof the justice system. According to Courtofficials, Indonesian Law gives high levels ofdiscretion to adjudicating judges to determineand impose sanctions.194 While this may beconsistent with National Law, it is arguablyinconsistent with international standards andprinciples of equity law.

Enforcement of Remedies andSanctions

One main issue identified by the assessmentconcerning enforcement relates to the Pro-vincial Government’s capacity to incarceratethe accused. As a result of the tsunami, penalinstitutions (Lembaga Pemasyarakatan, LAPAS)in Banda Aceh, Lhoknga (Aceh Besar) andMeulaboh (Aceh Barat) were completely de-stroyed while others suffered damage and areno longer able to function. During the tsuna-



mi, there were 278 inmates at the Banda AcehLAPAS; 238 have been declared missing (ei-ther escaped or killed) and 40 survived. Cur-rently, the administrative office of LAPASBanda Aceh occupies space at the RegionalOffice of the Ministry of Law and HumanRights. All LAPAS Banda Aceh inmates havebeen transferred to LAPAS Jantho (AcehBesar), which does not have the capacity toaccommodate the large number of inmates.

The LAPAS Meulaboh was completelydestroyed during the tsunami but its 140inmates survived. It has since transferredinmates to a local residence, while someinmates are simply required to report regularlyto the Meulaboh Penal Office. The Prosecutorhas placed new inmates sentenced to less thanone year imprisonment in detention roomsin the Aceh Barat POLRES. However, thesedetention rooms were not intended as longterm penal facilities, are small, over-crowdedand lack basic amenities for prisoners. Froman international human rights perspective,they fall short in meeting prisoners’ rights.Similarly in Banda Aceh, the absence ofa long-term incarceration facility has meantthat many prisoners are kept in short-termholding cells in police stations before theycan be transferred to the long-term facilityin Aceh Besar. At the time of this assessment,rehabilitation and reconstruction of penalinstitutions had not begun. As a result, theshortage of detention facilities compromisesthe ability of the General Courts to enforcesanctions as stipulated by law in a mannerthat i s cons is tent wi th nat ional andinternational standards.

7.2 Syariah Justice System


Remedies delivered by the Syariah Courts inAceh include ‘Declaratory’ decisions and‘Deeds of Peace’. ‘Declaratory’ decisions aredecisions in which the Syariah Courts declarea status or situation relating to one or moreparties as a legal status. This may includedeclaring a marriage between two parties,pronouncing a divorce, determining a legalcustodian or legitimate heir, and certifyingdeaths or disappearances. A ‘Deed of Peace’is a decision passed by the Syariah Courtsafter the resolution of a dispute betweenparties. This occurs because every judge isobligated first to facilitate disputing partiesto reach an agreement. The Syariah Courtstrongly urges disputing parties to settletheir problem through peaceful deliberationoutside the court because of its limited humanresources and facilities.

As discussed in section 3.2, the three catego-ries of sanctions under Syariah are ta’zir (dis-cretionary),195 hudud (fixed punishments) andqisas (just retaliation). Currently, the existingSyariah qanun in Aceh empower Syariah Courtsto sentence the accused to ta’zir and hududpunishments.

The criminal Syariah offences relating to ritualworship (Qanun 11/2002), the making, distri-bution and sel l ing of l iquor (ar t ic les6-8, Qanun 12/2003), gambling (Qanun13/2003), as well as immoral acts (Qanun

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195 For further discussion on ta’zir see Mohammed El-Awa, “Ta’zir in the Islamic Penal System”, Journal of Islamic and Comparative Law 6(1976).



14/2003) carry a ta’zir punishment. Ta’zirpunishments include fines, imprisonment, orcaning but are at the discretion of the judge.196

Meanwhile, the consumption of alcohol(article 5, Qanun 12/2003) carries with ita hudud punishment in the form of 40 lashes.There are two concerns relating to the appro-priateness - from a national and internationallegal perspective - of such sanctions. The firstconcern relates to the discretionary elementof punishments. It is arguable that punish-ments left to the discretion of the presidingjudge may be unfair and may deviate fromprecedence, thereby permitting no legalcertainty.197 On the other hand, respondentsnote that , within the ta ’z i r category,the exist ing qanun do provide guide-l ines as to maximum sentences that

may be imposed.198 The following ta’z irpunishments are s t ipulated in qanun .The second concern regarding the appropri-ateness of sanctions relates to caning as apunishment. Many respondents consider ca-ning a human rights violation because of theexcessive physical pain imposed upon thebody. Additionally, the fact that it is enforcedin public (canings in Aceh have been conduct-ed usually at the main mosque after Fridayprayer when the umma, the Muslim community,have congregated) is considered by many asviolating human rights because it leads toexcessive public shaming. Finally, others haveargued that it is inappropriate because it hasno deterrent effect.199 Box 26 outlines dif-ferent perspectives identified during the as-sessment.

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196 Arskal Salim, Islamising Indonesian Laws? Legal and Political Dissonance in Indonesian Shari’a, 1945-2005, p. 199; Salim points out that ta’zir is a “discretionary punishment for committing the prohibited acts or for omitting the obligatory acts”.

197 Interview, NGO, 14 January 2006, Banda Aceh.

198 Interview, Syariah Court Judge, 13 January 2006, Banda Aceh.


Number of Canings

Maximum 12 lashes or 2 years impri-sonment

Source of Law

Article 20(1), Qanun 11/2002



From: Arskal Salim, Islamising Indonesian Laws? Legal and Political Dissonance in Indonesian Shari’a, 1945-2005, p. 200.

TABLE 8: TA’ZIR PUNISHMENTS AS STIPULATED IN QANUN

Apostasy or disgracing the religion of Islam

Offences

Failure to observe Friday prayers threeweeks consecutively without good reason

To provide amenities that encourage Mus-lims to break fasting during Ramadhan

To eat or drink publicly during the fastingperiod of Ramadhan

To commit gambling

To commit khalwat





Not yet determined (will be providedfor in a subsequent qanun)

Maximum 3 lashes or 6 months impri-sonment

Maximum 6 lashes, 1 year imprison-ment, or a fine of up to Rp. 3 million

Maximum 2 lashes or 4 months impri-sonment

Maximum 12 and minimum 6 lashes

Maximum 9 and minimum 3 lashes

The propagation of deviant sects or cults



200 Interview, Dinas Syariat Islam Official, 26 January 2006, Takengon, Aceh Tengah. Interview, WH Official, 14 February 2006, Aceh Barat.201 IDLO Update, October 2005.202 Salim points out that by November 2005 it was estimated that 9,000 cases of inheritance had already been brought before the Syariah Court;

a very small number relative to the more than 130,000 estimated dead caused by the tsunami, and that cases did not include land claims; see,Salim Arskal, Islamising Indonesian Laws? Legal and Political Dissonance in Indonesian Shari’a, 1945-2005, p. 215. Statistics gathered forthis assessment demonstrate that most land claims have not been brought to any court for resolution in early 2006 and that the number ofinheritance cases brought to the courts remains relatively low compared to the number of overall dead.

203 Interview, Dinas Syariat Islam, 14 January 2006, Banda Aceh.

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However, Dinas Syariat Islam and WH officialsexplained that caning is considered to be anappropriate sanction for a number of rea-s o n s . 2 0 0 F r o m t h e p e r s p e c t i ve o fthe accused, the punishment is quickly overwith and does not involve financial costs.From the perspective of the justice system

and Syariah bureaucracy, caning is consideredan appropriate sanction because it is intendednot to cause pain but to deter through shame.Its financial cost on the justice system is lowerthan imprisonment in which the system musthouse and feed prisoners. Finally, respondentsnoted that caning is regulated by a set ofrules, stipulated in Governor’s Decree10/2005 on the Technical Implementationof Caning. This Decree sets out rulesincluding the mandatory presence of a doctor(article 4(1)), how the lashing is to be executed(articles 4 –10), and scenarios that may leadto a cessation of the caning (article 11).


Since the tsunami, the Syariah Courts haverendered over 10,000 ‘declaratory’ decisionsdetermining the identity of heirs (penetapanahli waris) and some 3,000 declarations ofdeath (penetapan kematian).201 While not reme-dies as such, these decisions by the SyariahCourts have permitted tsunami victimsto access bank accounts, demonstrate owner-ship over property and request humanitarianassistance.202

With regards to the enforcement of caningas a punishment for criminal offences, thefirst caning was executed in August 2005 and,at the time of writing, there had been over100 more throughout the province.203

Officials report that there have not beenproblems with the enforcement of canings.Funds are allocated from the provincial anddistrict budgets through the Prosecutor’sOffice, who execute the sanction.

BOX 26: THE APPROPRIATENESS ANDEFECTIVENESS OF CANINGAS A PUNISHMENT

“The sentence of whipping will be carried out by theprosecutor’s office and the detainee will be allowedto go home afterwards. This sentence does not haveany punitive effect; many perpetrators violate thelaw again.”

Interview, Attorney’s Office Official,8 February 2006, Banda Aceh

“Our community is demanding for no more whipping.If possible the whipping punishment should beabolished. Give the heaviest penalty. Drinking alcoholshould be fined a sum of Rp 75 million. Who wantsto pay for the price of one car if the price of abottle is only so much? So now the demand in ourcommunity is not to whip, give the heaviest fine/jailterm for such offences.”

Interview, Dinas Syariat Islam Official,26 January 2006, Takengon, Aceh Tengah

“Caning by Syariah Courts does not have a significantpunitive effect for deterring criminal behaviour.”

Interview, Head of Special Crime Unit of Banda AcehAttorney’s Office, 8 February 2006, Banda Aceh

“Most of the people who have been in court andhave been punished feel regret. Whipping punish-ment is more acceptable than jail punishment becausewhen they receive whipping, afterwards they arefree and it will not cost much money, unlike jailpunishment where they must stay in prison for along time and it costs a lot of money.”

Interview, Head of West Aceh Syariah Court,14 February 2006, Aceh Barat



The Syariah justice system has encoun-tered difficulties in the enforcement ofsanctions taking the form of imprisonmentbecause it utilises the same detention facilitiesas the General justice system. Inadequatespace and large distances to prisons has meantthat standards of imprisonment can violatenational and international standards forthe detention of prisoners.

7.3 Adat Justice System


Remedies and sanctions as stipulated in Perda7/2000 on Adat Law (article 19) include:giving advice, reprimanding, a public apology,imposing fines, compensation, alienation bythe village community, expulsion from thevillage community, and revocation of adattitle. According to adat duty-bearers, sanctionsprincipally take the form of restorative justicemeasures with the aim of preserving socialharmony, at rehabilitating offending parties,and at reintegrating offending parties into aharmonious community. For example, inGayonese adat, in cases of “spilling of blood”such as a traffic accident, perpetrators of theoffence must pay the cost of treatment to thevictim followed by a peusijuk (cleansing)ceremony intended to symbolise the resolutionof conflict and forgiveness. Once the cleans-ing ceremony is complete, the perpetratorand victim are considered as having becomerelated, thus preventing resentment and futureconflict between the parties.

According to adat duty-bearers, specific sanc-tions imposed through adat forums go beyondthose stipulated in law and can include: phys-ical punishment, community service, deten-tion, seizure of property or property rightsextinguished and marriage (i.e., as a punish-ment for unmarried couples found in a rela-tionship). In cases of disputes between ahusband and wife, including cases of domesticviolence, “amicable solutions” without penal-ties are often imposed. In many cases identi-fied by the assessment, these solutions didnot stop the domestic violence, with abusivehusbands commonly beating their wives again.

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Peusijuk cleansing ceremony being demonstrated by villagers

for the assessment team.


The assessment found that adat justicemechanisms have dealt with past human rightsabuses committed by ex-GAM and ex-militia.In one case, the keucik himself had beenostracised from a village for his allegiance tothe GoI and violations he abetted. However,in many instances, due to the political andsocial sensitivities of addressing serioushuman rights violations head-on, efforts aregeared at “forgetting the past” and “movingforward” without any compensation pro-vided to victims. Additionally, the assessmentdid not locate local forums that haveinvest igated or imposed sanctions onindividuals accused of cor ruption ormanipulating aid distribution (i.e., grievan-ces relating to unequal aid distribution),unlawful attempts to deny the inheritance

rights of women or orphans (conflict-affectedareas), or acts of intimidation and violencecommi t t ed ag a ins t m inor i t y g roups(conf l ict-and tsunami-affected areas) .

Al though seek ing to promote soc ia lharmony, the sanctions imposed throughinformal justice forums can breach principlesof human rights and be unfair to minorityethnic groups.204 For example, a strongargument can be made that expulsion froma village, one of the sanctions that adatleaders are permitted to enforce under Perda7/2000, contravenes human rights principles.Across the assessment sites, it was found thatthose community members most unhappywith informal justice outcomes were amongthe weakest and most disadvantaged groups.It is typically the case that these claim-holdersdo not have methods for going beyond thevillage level to seek justice remedies. As shownin several case studies in Chapter 5, whenchoosing justice forums, claim-holders areoften coerced to file complaints with informalsystem duty-bearers. This is often rationalizedon the grounds that individual rights aresecondary to promoting social harmony.However, many respondents expressedfrustration with informal decision-makingprocesses, most notably disadvantaged groupsincluding women and landless labourers.


The assessment found that the ability of adatto enforce remedies and sanctions can beweak because of the absence of physicalmechanisms to bind decisions. However thosecommunities ascribing to adat will self-enforcesanctions because of the strength of the“considerations of morality, religion andtradition” that underpin the adat system.205

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204 Matt Stephens, ‘Local-level dispute resolution in post-reformasi Indonesia: Lessons from the Philippines’, p. 232.205 M.B. Hooker, Adat Law in Modern Indonesia (Oxford University Press, Kuala Lumpur, 1978), p. 146.

BOX 27: ADAT JUSTICE: ENSURING SOCIAL HARMONY

According to Gayonese customary law, for an agree-ment to be reached it must be based on the principlesof Maaf, Rujuk, Diat and Bela. “Maaf” is when theperpetrator asks forgiveness. “Rujuk” is when every-thing is back to normal again and the perpetratorhas been forgiven regardless of the type of offence. “Diat”, is agreement on the amount of compensa-tion to be paid to the victim. “Bela” is the same asQisas (An eye for an eye), or a life for a life. Usuallysettlement is reached when parties have progressedto the third principle.

Settlement is followed by “tepung tawar”; this is atraditional process led by a village elder that givesadvice to both parties and their families not toharbor any feelings of resentment. The perpetratorand victim then sit next to each other and a wovencloth is placed over their heads and both partiesmake a pledge, “You are my brother, in life and indeath” that is witnessed by the community. Afterthe pledge, the older party acts as an older brotherto the younger and the younger acts like a youngerbrother to the older.

Village C1, Aceh Tengah



The weak enforcement capability of the adatsystem has meant that citizens can ‘forumshop’ if they are unsatisfied with the outcomeof a dispute.206 This is not always a problem;indeed, Acehnese have a right guaranteedunder National Law to employ the Generaljustice system to resolve their disputes.That is, adat resolutions are not legally binding.However, a problem is found in attempts tomanipulate processes to avoid sanctions orto manipulate forums at the expense ofother individuals. Additionally, becausesanctions imposed by adat decisions arenot binding, it is not uncommon for morepowerful figures to ignore decisions notin their favour.207 As the following exampledemonstrates, the assessment found thatthe level of respect or even fear that theadat leaders garner in their communitywill influence the extent to which decisions,remedies and sanctions are accepted by acommunity.

Furthermore, the capability of adat to enforceits sanctions proves especially weak in conflict-affected villages that are ethnically pluraland politically divided. For example, in ethni-

cally mixed villages, such as Villages CA3and CA2, the conflict has aggravated conflict-ing interpretations of adat, minor differenceswith cultural pract ices, and increasedpre-existing patterns of discrimination.Thus, adat remedies and sanctions are suscep-tible to manipulation, patronage, coercionand power imbalances that can be used toensure favourable outcomes for more power-ful and wel l-connected individuals. 208

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206 UNDP, A Review of the Justice System in Aceh, Indonesia, p. 19.207 World Bank, Interim Report: Justice for the Poor Program: Research Paper on Community Access to Justice and Village Judicial Autonomy

(World Bank Social Development Office, Jakarta, 2004), p. 166.

208 UNDP, A Review of the Justice System in Aceh, Indonesia, pp. 35-36; Stephens, p. 228.

BOX 28: DISCRIMINATION ANDEXTORTION OF MINORITIES

N, a female Javanese transmigrant, was told, “Don’tlook for a house because you are not Acehnese,you’re not entitled”. N worked as a cook at aninternational NGO that operated in Village TA2.The local owner of the house, known to be a “crueland powerful man”, asked N to give him 10% ofher earnings. N refused and was then threatened bythe man (murder, rape, burning). N was very scared,especially because she heard that another womanfrom Java had been raped in the village several yearsago. N was scared to report the case to the policebecause she would have no protection when alonein the village. The Keucik was not responsive to N’srequests for help, because he too feared the manand his family.

Interview, Widow, Village TA2, 16 February 2006,Aceh Barat


Chapter 8Recommendations


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This Chapter concludes that rapid andequitable responses from the justice sector –both formal and informal – are necessary tofacilitate successful post-tsunami and post-conflict reconstruction and reintegration. Itrecognizes that an effective formal legalsystem is vital for that process but, at thesame time, the majority of disputes will beresolved through village-level adat institutions.Both mechanisms, therefore, require support.

Based on the findings, the assessmentidentifies a series of recommendations tosupport the formal and informal justicesystems in Aceh. The needs are significant,so some prioritization is necessary. All of therecommendations below are important, butthe assessment identifies the following sixareas as the immediate and most importantpriorities for action. Prioritization was basedon an assessment of actions that most rapidlyassist communities to build back their livesand restore their livelihoods.

1. Community legal awareness :

Without an understanding of their rightsand how to enforce them, communitiescannot resolve the legal problems theyhave identified in this assessment asthe most crit ical . Legal awarenessprograms must focus not only as theydo now on obligations, but also on rights.

2. Community legal advisory/advocacy services :

Disadvantag ed g roups who faceeconomic or social hardship often needsupport to access their legal rights ordefend their legal interests. Mechanismsto support CSOs establish and maintainlegal advisory and assistance posts in

cities and more remote parts of Acehare essential if more vulnerable sectionsof the community are to have fullaccess to justice.

3. Strengthen the capacity of locallevel justice institutions :The majority of complaints are beinghandled by local level institutions,including adat inst i tut ions, vi l lageheads and religious leaders. Thesemechanisms require capacity buildingencompassing mediation skills, know-ledge of the law (substantive lawand processes) and gender awarenessto deliver sustainable and equitabledispute resolution.

4. Support the formal justice sector:

The courts, prosecutors and police werebad ly damag ed by the t sunami ,compounding exist ing weaknesses.The conflict has undermined publicconfidence in the legal institutions,reducing their capacity to respond to legalproblems and support accountablegovernment. While it is hoped that thisassessment has identified a significantportion of the needs, coordinatedconsultations with those stakeholderswho are mandated and able to respondto these needs must cont inue inorder to (i) seek input on other needsand (ii) strategise on how these needsmight best be addressed.

5. Resolve jurisdictional overlaps:

The jurisdictional ambiguity betweenthe General and Syariah Courts and adatinst i tut ions needs to be clar if ied.The jurisdiction of adat institutions in

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par t icular requires regulat ion. Al lregulations passed in Aceh shouldbe consistent with the Indonesian Consti-tution and human rights principles.

6. Monitoring and oversight :

National commissions charged withoversight of the judiciary, the prose-cutors and the police, as well as othergovernment institutions responsiblefor public service provision, shouldestablish provincial offices in Aceh.Oversight and accountability mecha-nisms must also be established foradat institutions to ensure consistencywith the Indonesian Constitution andhuman rights principles.

Assuming that there will be a long-term donorcommitment to strengthening the justicesystem, the recommendations made areholistic in nature and point to a wide rangeof areas that need support over the long-term.As the list of recommendations is substantialbut by no means exhaustive, critical tosuccessful reform will be coordinationamong all stakeholders. This includes theGovernment of Indonesia (in particular,but not limited to, BAPPENAS, the SupremeCourt and the Attorney General’s Office),the Provinc ia l Government of Aceh(BAPPEDA, BRR, and the High Court),Acehnese civil society, donors and otherinternational partners.

8.1 To National and ProvincialGovernments


• Ensure that all regulations passed areha r mon ized w i th na t iona l and

international human rights standards;any regulations which contradictthe Constitution should be revoked.

• Develop an accessible online databaseof qanun which can be easily updatedand reviewed for vertical consistencyand harmonisation.

• Promote public participation in thedrafting of qanun through DPRAoutreach and commission hearingson draft regulations.

• Support the evolution of adat (speci-fically jurisdiction and procedures) tobe cons i s t en t w i th Indones i anConstitutional Law and internationalhuman rights standards.

• Clearly del ineate and then raiseawareness on the types of cases thatcan and cannot be heard by adatand develop guidelines on procedureso that it is consistent with IndonesianConstitutional Law and internationalhuman rights standards.

• Establ ish gender components inall legal reforms and procedures.

• Under take cont inued ex tens ivec iv i l consul tat ion regarding theestablishment of a Human RightsCourt in Aceh with a clear mandateto investigate crimes falling underthe jurisdiction provided under Law26/2000 on Human Rights Courts.

• Once the current process of Consti-tutional Review of Law 27/2004on the National Truth and Recon-ciliation Commission (TRC) is resolved,based on extensive civic consultationestablish a TRC in Aceh to r ebu i l dc iv ic t r us t between communi tymembers and groups with the State.


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• Alternatively, if a National TRC is notcreated, establish an ad hoc TRC inAceh by legislation promulgated bythe DPRA based on extensive civicconsultation.

• Promulgate a law on legal aid to definethe standing of public defenders tosupport disadvantaged justice users.

• Promulgate the “freedom of infor-mation” law to facilitate citizens’access to information and enhanceaccountability and transparency withpublic service provision.

• Promulgate a Supreme Court Decisionto simplify judicial procedural require-ments to facilitate circuit trials forisolated areas.

• Resolve the regulatory problemsassociated with the role and functionsof the WH.

• Discourage pemekaran (administrativesub-divisioning of districts) whereadequate service delivery capabilityis unlikely due to a lack of human andinfrastructure resources and financialresources.

Legal Awareness

• Support legal awareness programmesthat emphasise: those legal problemsand processes that are most commonto citizens and that will most empowercitizens under the law; the criminalityof domestic and gender-based violence;and the accessible provision of publicservices.

• Increase emphasis on the awareness-ra is ing mandate of governmentinstitutions (especially those at district

and subdistrict levels) by earmarkinga larger percentage of the APBD tothis end.

• Review legal awareness outreachstrategies used by various govern-ment inst i tut ions and revise asneeded in order to promote commu-nity empowerment under the law.

Handling of Grievances

• Draw on the institutional matrixanalysis (see Appendix 3) to deviseappropriate institutional developments t ra teg ies to address ident i f iedweaknesses.

• Strengthen the provision of assistanceto disadvantaged groups by: identifyingand registering claim-holders; allottingspecial funds towards assistancepackages; supporting local government(district and subdistrict) to distributefunds effectively and transparently.

• Support continuous capacity deve-lopment of formal justice systemduty-bearers and establish clear andt r a n s p a r e n t r e c r u i t m e n t a n dpromotion criteria.

• Provide training to legislators atprovincial and district levels so thatt h e d r a f t i n g o f l aw s r e f l e c t sloca l asp i ra t ions and does notcontravene nat ional laws or theConstitution.

• Prov ide media t ion t ra in ing forjudges leading to mediation certi-f icat ion for judges as st ipulatedby law.

• Reinforce divisions between policeservices and TNI regarding internal


and externa l secur i ty funct ionsand introduce measures in the fieldso tha t the d i f f e r en t s ecu r i t yfunctions of police and TNI personnelare understood and fol lowed byGoI security personnel in Aceh.

• Recruit higher numbers of localresidents into the organic policeser v ices and introduce t ra in ingmeasures that prevent the factio-nalisation of the police services alongethnic or political lines (e.g., ex-GAMversus pro-GoI, Acehnese versusGayonese etc.).

• Conduct an assessment to deter-mine the extent to which policepersonnel suffer from post-conflictmental trauma and take appropriatemeasures to respond to identified needs.

• Provide cu l tura l awareness andconflict sensitivity training for police.

• Expand Special Women’s Desks downto the subdistrict level, adequatelystaffed with women police officers.

• Monitor low level clerk staff andadministrative support staff to limitopportunities for loss of files orevidence in court cases.

• Encourage the registration of ad-vocates (especially women).

• Increase the dispute resolution andmediation capacities of adat operators.

• Develop training packages for adatoperators regarding national andinternat ional human r ights lawsand standards, how to refer casesto the formal justice system, and genderand mediation training [in conjunctionwith MAA].

• Implement training packages foradat duty-bearers to ensure theyp r ov i d e j u s t i c e i n a m a n n e rc o n s i s t e n t w i t h n a t i o n a l a n dinternational law and standards andhave appropr ia te case refer ra ls y s t ems to the fo r ma l j u s t i c esystem [in conjunction with MAA].

• S u p p o r t s u s t a i n a b l e c a p a c i t ydevelopment of adat duty-bearersin the fields of: human rights (withemphasis on women and children’sr i gh t s ) ; b a s i c subs t an t ive andprocedura l l aw ; med ia t ion andconflict resolution; legal principles(including ethics, corruption, andnon-discrimination); administrativep r o c e d u r e s ; a n d , i n f o r m a t i o nmanagement and recording of data.

• Provide training and institutionaldevelopment support for imam mukimand mukim offices.

• Provide sustainable and multi-year(subject to performance reviews)support to legal aid organisations andsocial worker schemes to supportc i t i z e n s t h r o u g h t h e j u s t i c eprocess and the ability of legal aidorganizations to extend their coverageto rural areas.

• Establish land dispute committeesat district level in conflict affectedregions to handle major land dis-putes arising from disputed landclaims.

• Support reintegration and confidencebu i ld ing be tween c i t i z ens andgovernment authorities.

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Oversight and Accountabi l i ty

• Support the strengthening of theKPK (Corruption Eradication Office);provide full cooperation with theOffice in fulfi l l ing its functions;and, raise public awareness of theoff ice ’s funct ions and repor t ingmechanisms.

• Support the KPK to develop andimplement an anti-corruption curri-culum into Aceh’s school system.A short-term strategy to adopt islaunching quick school-based infor-mation campaigns.

• Call for the establishment, withinall government institutions, of: pro-vincial institutional review commi-s s i o n s ( e . g . P r ov i n c i a l Ju d i c i a lRe v i e w C o m m i s s i o n , P r o v i n -cial Police Review Commission);internal oversight systems; publiccomplaints mechanisms; and, reviewand revise codes of conduct andmake codes of conduct publ icknowledge through infor mat ioncampaigns.

• Endorse the establ ishment of aReg iona l Ombudsman’s Off i ce ;provide full cooperation to fulfili t s funct ions ; and, ra i se publ icawareness of the Office’s functionsand mechanisms.

• Strengthen CSO and media capacitiesto act as oversight bodies to improvethe provision of public services tothe community.

• Deve lop r eco rd ing s y s t ems a tmuk im and c ama t o f f i c e s t h a tdocument decisions and types ofpunishments imposed so as to

ensure appropriateness of sanctionsand to facilitate external review ofregional and local justice processesand the harmonization of differentjustice forums.

• Support the establishment of confi-dential complaints mechanisms atsubdistrict and district levels forc o m m u n i t y m e m b e r s t o f i l egrievances.

8.2 To Donors

• Establish a provincial level steeringcommittee comprised of donors,government officials, and CSOs tomeet and review justice system re-form efforts as required.

• Suppor t a constr uct ive processof dialogue and training on thelinks between transitional justice,reconciliation and the rule of law.

• Advocate for gender mainstreamingin all legal system reforms, as wellas support specific activities andprogrammes to enhance womenand chi ldren’s access to just ice.

• Advocate for and provide supportfor the establishment of the above-listed oversight institutions and thepromulgation of the freedom ofinformation law and the law on legalaid.

• Support sustainable and multi-year(subject to performance reviews)activities of both government insti-tutions and CSOs directed towardslegal awareness-raising of citizens.

• Fund a follow-up needs assessmentthat is narrow in scope and targeted

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to identify logistical, infrastructure,s taf f ing and personnel t ra in ingneeds of the cour ts and leg a laid services.

• S u p p o r t s u s t a i n a b l e c a p a c i t ydevelopment of justice providers(both formal and informal justicesystems) , inc luding adat leaders,judges, prosecutors, lawyers, policeand prison wardens, and just iceauxiliaries, in particular those involvedin providing assistance to disadvan-taged groups such as conflict widows,orphans, and tsunami-affected citizens.

• Based on extensive civic consultation,support the establishment of a HRCand TRC.

• Provide support to encourage theeducation and registration of localAcehnese advocates (especially wo-men).This could be done in theform of legal scholarships.

• Suppor t lega l a id organisat ionsto enhance their capacity to servedisadvantaged clients and to expandtheir geographic scope.

• Provide support to improve inter-in s t i t u t iona l c a se r e f e r r a l andrecording systems.

• Support information managementneeds of justice institutions in theform of communications technology,l e g a l d o c u m e n t a t i o n a n d t h edevelopment of an integrated jus-tice system.

• Suppor t c iv i l soc iety in i t ia t ivesgeared towards monitor ing andovers ight to act as a force foraccountability of formal and infor-mal just ice system duty-bearers.

• Support and develop the judicialsys tem monitor ing act iv i t ies oflocal CSOs and media and publicisefindings to enhance accountability.

8.3 To Civil Society

• Raise public awareness about availablelegal aid services.

• Extend outreach to the districts andsubdistricts.

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Appendix 1Justice Issues Identified by Village


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Appendix 1 - Justice Issues Identified by Village

Seen as a normal occurrence. Nothing that canor should be done to resolve the problem. Thewoman was afraid that her ex-husband wouldbe arrested and, if he was arrested, then hewould be unable to support her anyway.

Domestic violence is considered a private familymatter. No outside party should interfere.

The villagers are very sympathetic to the victim(widow of the disappeared person). The majorityof villagers face hardships a result of the conflict.People are still afraid of reporting such cases.

Villagers scared to report cases and generallyremain traumatized.

No data.

No data.

No data.

TABLE 9: VILLAGE TA5

Jus t i ce Is sue s Community Act ions and Ju s t i c e Sy s t em UsedPercept ions

Divorce, no support provided byex-husband.

Domestic violence committedagainst women victim; result ofeconomic hardship.

Disappeared person during theconf lict. Whereabouts andwhether still alive or deadunknown.

Human rights violations (conflictperiod). TNI personnel conduct-ing sweeping operations intimi-dating villagers.

Theft of property; individualstole fish from another person’saquaculture pond.

Inheritance dispute (land owner-ship after the tsunami). Disputeemerged following tsunami. Allwitnesses for land ownershipdied during the tsunami. Plaintiffthen made claim because no onecould challenge his ownershipclaim. Plaintiff comes froma wealthy family and defendantcomes from poor family and hasno knowledge about the law andcannot afford legal representa-tion.

Economic injustice post-MoU.Ex-GAM angry that reintegrationassistance has not yet material-ized.

No action taken.

Adat and traditional leaders.

No action taken.

No action taken.

Formal; villagers brought suspectdirectly to the police. Police medi-ated resolution of dispute andcompensation to the victim.

Informal and formal.Keucik and adat dispute resolutionnot finalized. Plaintiff not happywith decision. Plaintiff has broughtthe case to the General Court andis now using a lawyer to acquirethe disputed property.

Informal. Camat sought informa-tion but no resolution to grievance.

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Community anger and graffiti painted on wallsto slander NGO.Villagers feel that, because itis a foreign NGO, there would not be much thekeucik could do.

The villagers are very sympathetic to thesechildren and their fathers who have trouble toprovide for them. In Acehnese culture, it isconsidered that only children who have lost theirfathers are considered to be entitled to assistance.This is because it is assumed that fathers shouldstill be able to provide for their families.

The villagers are very angry but are afraid to sayanything because of the respected position ofthe village leaders. Community members do notbelieve that the government will help resolvethe problem.

No data.

Community members frustrated that they arenot receiving housing assistance.

Community wants to re-establish land ownershipboundaries.

No data.

Claim-holder believes this is unjust.

TABLE 10: VILLAGE TA8Jus t i ce Is sue s Community Act ions and Ju s t i c e Sy s t em Used

Percept ions

Grievances arising from unfilledpromises of aid delivery made byan international NGO in thistsunami-devastated area.

Gender-biased aid distribution.Children whose mothers died inthe tsunami and are now livingwith their fathers have receivedvery little attention from thegovernment or NGOs.

Corrupt aid distribution. Thosewho are closer to the villageleadership receive greater levels ofaid assistance.

Inheritance disputes followingthe tsunami. Many properties leftwithout owners (high number ofdead). Has led to high number ofclaims by surviving villagers.

Landless villagers. Property sub-merged under water. Landlessvillagers cannot receive govern-ment housing reconstruction as-sistance.

Land ownership certificates lost.Villagers cannot prove ownershipof property.

Land boundary disputes (prior tothe tsunami). Majority of villagersdid not have land certificates. Ledto many boundary disputes whena villager died.

Property dispute. Claim-holderfeels that he has been abused byother party that has involved themilitary in winning a favourablesettlement.

No action taken.

Informal. These cases have beenreported to the dusun head. Noresolution of grievances.

No action taken.

Informal and formal. Keucik andother adat leaders, as well ascamat helped to establish letters ofownership among survivors. Casesw e r e t h e n t a k e n t o t h eSyariah Court where they werelegitimised.

Informal. Keucik seeking to resolvegrievances by allocating land with-out cost to tsunami survivors thathave no useable land.

Government conducting landownership mapping exercisessupported by NGOs.

Informal. Keucik but typically re-solved only through mediation –not in traditional adat way (post-tsunami, other adat institutionswere not functioning).

Formal – TNI. No resolution ofgrievance.

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The villagers are angry about the actions of thegovernment apparatus. The issue remains toosensitive to be discussed publicly because thecommunity still fears reprisals from the TNIand police.

Most villagers do not know what the entitle-ment for blood money is, or the procedure toclaim it.

Villagers are not very sympathetic because theclaim-holder is not Acehnese. Claim-holderbelieves she is being discriminated against bythe community and by government officials.

Community is afraid of the suspect because heis a “rough” person suspected of having criminalconnections.

Grievances have led to conflict among commu-nity members at village level. Youth are opposedto village apparatus (comprised of mostly oldergeneration). Younger generation feels that it hasbeen excluded from any village level decision-making.

Seen as a private family matter. Community alsofears the ex-husband and his family.

Villagers sympathetic to the claim-holder butfeel that they cannot do anything to assist.

The villagers are sympathetic but cannot domuch to support these women because they arethemselves poor. The women are also embar-rassed to talk about their situation to others.



Human rights violation. Widowsuffering from trauma as a resultof intimidation by governmentapparatus during the conflict.

Government corruption. Widowwith dependents not receivingfull diyat payment (governmentofficials claimed that adminis-trative costs must be taken fromthe full amount).

Discriminatory aid distributionby the government. Widow wasmeant to receive government as-sistance (house) but only thewalls were built. Governmentclaims they ran out of funds.

Extortion.

Corruption. Aid distributed byvillage apparatus unfairly.

Domestic violence and denial ofmarital property.

Theft from ex-wife.

Divorcees with dependents notreceiving financial support fromex-husband.

No action taken.

Informal: Keucik and camat. Noresolution of justice grievance.

Informal: camat (reported six times).Issue still not resolved. Claim-holder has now given up seekingresolution of her grievance.

Informal: Keucik. Grievance notresolved.

No action taken.

Informal: Keucik. Issue remainsunresolved.


No action taken.

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Victim and community still fear ex-GAM. Duringthe conflict no one would say anything aboutthis incident because they were scared ofreprisals.

Community generally supportive of claim-holders rights. Security for migrants guaranteedby Keucik.

People still waiting for aid, others passive.Villagers and refugees in barracks have startedto distrust government and some NGOs.

Community members angry that aid has notbeen provided. They are waiting for externalassistance.

Widows depressed but scared to ask for theirrights and do not know where to go to ask forassistance.

Community members remain scared.

No data.

Community members do not consider it a majorjustice grievance.

TABLE 12: Village TA3


Human rights violations. Kid-napping and violence against thekeucik during the conflict (sus-pects are GAM fighters).

Forced relocation and landownership claims. Javanesemigrants from North Sumatraforced off land in neighbouringvillage by GAM members duringthe conflict period.

Unequal aid distribution.

Unequal aid distribution. No as-sistance provided to farmers.Land destroyed by tsunami, can-not be used for agriculture.Community members do nothave tools for clearing the land.

Widows not receiving govern-ment assistance.

Human r ights v io lat ions.Violations included assault,intimidation and destruction ofprivate property. Suspectedperpetrators of violations in-cluded TNI personnel and GAMfighters.

Violent assault. Villager usingknives to attack another commu-nity member.

Divorce. Wife seeking divorcebecause the husband left the wife(eight years ago). No financialassistance provided by thehusband to ex-wife or children.

Formal. Victim rescued followingintervention of police and TNI.

Formal and informal: Keucik andcamat. Issue remains unresolved.


Formal: Camat. Issue remains unre-solved. Camat says it is out of hishands but does not appear to bedoing anything more to refer thecase.


No action taken.

Informal: Keucik. Unclear whetherissue was resolved or not.

Formal: Syariah Court. In process.

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Villagers are often fighting about who is entitledto assistance and who is not. Selection criteriafor assistance unclear. This is leading to internalconflict in the village.

Community generally passive about the matter.No one has done anything to assist the claim-holder.

Selection criteria for assistance unclear, leadingto suspicion of corruption. The villagers askwhy some receive and others do not.

Some are sympathetic while most others donot say anything because it is considered to bea domestic problem. Support from communityis not provided because the community believesthat to take the case to court is a shameful act.Claim-holder wants to get divorced throughthe formal courts.

Community members claim that villagers relatedto the keucik receive assistance ahead of othersthat are in greater need. Villagers happy withother assistance provided by INGO for localfishermen and wish other assistance was pro-vided as fairly and transparently.

Traditional fishermen complain that corals andlocal fish stocks are being destroyed. Now theymust travel far out to sea in order to catch fish.


Jus t i ce Is sue s Community Act ions and J u s t i c e S y s t e m U s e dPercept ions

Landless tsunami victims notreceiving housing assistance.

Destroyed property. House des-troyed by fire due to negligenceof another villager.

Widows not receiving any tsuna-mi assistance.

Domestic violence victims seek-ing divorce.

Corruption.

Environmental damage anddestr uction of l ivel ihoods(natural resource dispute).Traditional fishermen in conflictwith modern fishermen fromanother sub-distr ict . Eco-friendly versus ecologicallydamaging methods such astrawling for fish.


Informal and formal: Keucik andpolice. Compensation agreementmade but weak enforcement.Claim-holder has not been reim-bursed the full amount agreedupon. No further action taken.

Informal: Keucik. Issue remainsunresolved. Explanation given isthat assistance is provided inrotations.

Informal: Keucik. Advised recon-ciliation through traditional adatpractices and assistance from theimam mukim.


Informal and formal: Adat, camat,DPRD, police, prosecutors. Dis-cussion has taken place to resolvethe issue. Agree-ment taken toend trawling. No enforcement ofagreement.In fact, trawling hasincreased.

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There does not seem to be much sympathy onthe part of the villagers towards these orphans.

Villagers do not say much to the male youthwho harasses the woman. There is still a strongsense of patriarchal male dominated authorityin the village and the youth are considered quitestrong physically.

Community afraid to report case because didnot want GAM to associate them with govern-ment offices.

Community only stated that the TNI suspectsshould not have done do what they did. Villagersremain scared of reprisals.

Villagers very scared during the conflict, remainscared.

No data.

No data.

Community members angry that aid has notbeen provided. Livelihoods depend on it. Theyhave become passive and waiting for externalassistance.



Orphans not receiving any assist-ance.

Harassment. Victim is a femaletsunami survivor. Woman nowsuffering from mental trauma asresult of harassment by a villageyouth.

Destruction of communal property- aquaculture fishpond (during theconflict period). Suspected perpe-trators -TNI and police personnel.

Claims of human rights violationsperpetrated by TNI against thewife and children of a GAM mem-ber (during the conflict period).

Human rights violations - Physicalabuse and harassment. Widespreadagainst community. Suspectedper-petrators - GAM and GoIsecurity forces.

Homeless villagers - houses de-stroyed by the tsunami. No assist-ance provided for reconstruction.

Land boundary disputes. Commonproblem - no proof of land owner-ship (certificates).

Unequal a id d is t r ibut ion/economic injustice. Followingtsunami, all aqua-culture destroyedby sea water. Community does nothave equipment to repair damage.

No action taken.

No action taken. Keucik is awareof the problem but has taken noaction.

No action taken.

No action taken.

No action taken.

Informal: Keucik approachedNGOs and donors. 264 housesrebuilt.

Formal. BPN and UN Habitat pro-viding assistance with spatial map-ping to determine land ownership.

Formal: Keucik has requested helpfrom NGOs and government butno response yet.

128

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Villagers are sympathetic but are also poor andcannot offer any assistance. The community hasalleged that government officials have stolenalmost 14 billion rupiah (i.e., through corruptionof diyat).

Social envy between villagers still living in IDPcamps that receive assistance against those whohave returned to their villages and no longerreceive assistance. This problem has been pro-longed and creates sense of distrust amongvillagers toward the Keucik who is considered aspro returnees (i.e., discriminates).

No data

Community members upset that needy peoplenot receiving assistance. Also upset that notenough aid provided to the community (onlysix boats distributed)

Community members believe that this is a formof economic injustice.

Community members angry that they have notyet received assistance.



Widow not receiving any assist-ance.

Unequal aid distribution /eco-nomic injustice

Land ownership dispute. Partiesclaiming different ownershiprights (traditional versus formalcertificate from government).

Unequal aid distribution. Villagegovernance not functioning well(office of keucik). NGO distrib-uting boats directly to villagerswithout coordination to identifyneedy groups.

No health facilities. Communitymembers need to travel long dis-tances to access health facilities(to sub-district capital). Expen-sive to access.

Economic injustice. Governmentpromised financial assistanceto IDPs affected by the conflict.Aid provided for only fourmonths (promised for eightmonths). Some did not receiveany assistance at all.

Informal and formal: Keucik andCamat. Widow still has not receivedproper assistance.

Informal: reported to secretaryof village, but not to Keucik sinceKeucik has different point of viewon this matter.

Formal: General Court. Wealthierparty sought to resolve casethrough courts and won recog-nition of ownership with land cer-tificate.

Informal: Adat. No resolution ofgrievances.

No action taken.

Informal: Keucik. No resolution ofgrievances.

129

Appendix 1


The villagers see this situation as normal andfeel sorry for a woman if her husband abandonsher. However, still considered a private familymatter.

Many people condemn the domestic violence,but some community members blame womenfor domestic violence occurring (i.e., they arenot being “good wives” to their husbands orare “disobedient”). Such issues are consideredprivate family matters.

Some villagers are sympathetic to the wife. Butthere are many others who believe the husbandhad the right to take the gold. People afraid totake action because the woman’s ex-husband isa respected village figure.

There is still an assumption that women do nothave to receive secondary education. There isvery little women’s participation in village deci-sion-making processes

Villagers angry at Javanese migrant workersbrought in to build houses following the tsunami.Community believes that villagers should beemployed to build the homes. On the otherhand, some community members are just happythat houses are being rebuilt.

Villagers complain that government has pur-chased land for construction of homes fromlocal residents at a rate below market value.

Villagers accuse Keucik and Camat of corrup-tion.This has undermined livelihood activitiesand led to tensions within the village.



Divorce. Women divorceeswithout marriage certificatesunable to access rights in formaljustice system.

Domestic violence.

Theft of property. Suspect -husband of the wife.

Limited education opportunitiesfor women.

Intimidation and threats ofviolence. Ex-GAM membersattempted to force migrantworkers out of the village.

Unfair land acquisition by theGovernment.

Corruption.


Informal: Keucik and Adat opera-tors, reconcile couple.


No action taken

Formal: police and AMM. Tempo-rary resolution achieved.

No action taken.

No action taken.

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Victims remain scared of the TNI and police.Do not trust the state apparatus.

Victims remain scared of the TNI and police.Do not trust the state apparatus.

Ex-GAM angry that reintegration assistance hasnot yet materialized. Members did not haveinformation about upcoming programs to belaunched by donors and by the government.

Considered minor issue easily resolved at villagelevel using traditional methods.

TABLE 16: VILLAGE TA4 (cont ’d)


Human rights violations. Villa-gers beaten, harassed and intim-idated by TNI personnel and po-lice personnel.

Human rights violations (duringthe conflict period). Disappearedpersons. Villagers suspected ofbeing GAM taken by unknownpeople. Suspected that perpetra-tors were police or TNI.

Economic injustice

Land boundary disputes.

No action taken.

No action taken.

Formal: Camat sought informationfrom government agencies aboutstatus of assistance but no resolu-tion to grievance.

Informal: Adat leaders.Case resolved.

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Citizens do not have a place through which toforward their complaints. Lack of knowledgeand traumatic past experiences prevent peoplefrom asking authorities for assistance. Neithercould the Keucik explain in a trans-parent mannerwhere social assistance to the village is going.

The dusun head considers this unjust incomparison to what people in other areas arereceiving but has not taken any action. Villagersare afraid to complain to government officialsand do not know how to access formal justicemechanisms.

Villagers feel sympathy for the woman but noassistance was provided. One family memberwanted to report to the police but was afraid ofother villagers and did not have the money togo through with it. Villagers still consider do-mestic violence as private matters and exposingsuch cases is a social taboo.

Condemnation and sympathy from villagers butno action. The victim’s parents also did not doanything because the problem is considered tobe one between the couple.

Common problem that villagers believe is easilysolved by traditional leaders.

The case was not reported to the Keucik becausethe land had already been sold and the Keucikwas allegedly given commission for the sale.

No opinions were expressed on this matter bythe villagers because everyone is still afraid.

People joined GAM as a form of protest duringthe conflict period.

TABLE 17: VILLAGE CA5

Jus t i ce Is sue s Community Act ions and Ju s t i c e Sy s t e m Us e dPercept ions

No compensation for victims ofconflict (e.g., those with housesdestroyed or family memberskilled by GAM or TNI).

Unequal aid distribution. Con-flict widows did not receive diyatmoney at the same rates as inother places.

Domestic violence leading topsychosocial harm and divorce.No alimony was given andproperty jointly owned by thecouple was not split fairly.

Domestic violence.


Inheritance rights of child de-nied. The father (GAM membershot by TNI) of the child lefta plot of land to his wife andchild but this plot was taken bythe father’s brother, who thensold the land without giving anycompensation to the wife andchild.

Human rights violation. Allega-tions of gender-biased violencecommitted by TNI (during theconflict period).

Economic injustice. No educa-tional opportunities and highlevels of poverty.

No action taken.

No action taken.

Informal: Imam Mukim and Keucik.No resolution.

Informal: Imam Mukim and Keucik.Couple advised to reconcile.

Adat.

No action taken.

Informal: Dusun head.No resolution.

No action taken.

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Appendix 1


The villagers strongly condemned the factory’sactions. Villagers never received any compensa-tion for the damage caused to their fields or theeconomic loses they experienced. Communitydid not know where to report their grievances.Villagers were afraid to complain.Claimed thata villager from a neighbouring village had com-plained and then later disappeared (during theconflict).

Citizens condemned this action but did notknow what action to take to address the problem.Perpetrator of the offence was the Keucik.Because of villagers’ lack of legal knowledge,they feel that they can only accept injustices.

All the citizens of this village suffered as a resultof the conflict, with the general feeling thateverybody had to look after themselves first.

The community is scared and feels power-less to seek justice.

Villagers remain very afraid of pressing theissue. Fear reprisals from TNI and from ex-militia now living in the village.


Considered minor issue easily resolved atvillage level using traditional methods.

TABLE 17: VILLAGE CA5 (cont ’d)


Environmental destructioncaused by manufacturing plant.Allegations made that the TNIwere being paid protectionmoney to ensure the plant couldoperate.

Disputed land ownership casedating back to 1978. The Keucikand village government appara-tus sold land belonging to 12villagers without con-sulting theowners. The rightful owners ofthe land have not returned to thevillage.

Human rights violations commit-ted against an elderly couple(parents of a GAM commander).The mother suffers from memoryloss and has a speech impedi-ment resulting from the physicalabuse she suffered. Until now,there has been no governmentassistance to support the victimfor her medical costs or for lostand destroyed property.

Human rights violations. Disap-peared persons. Several reportsof people kidnapped by GoI se-curity personnel. The wherea-bouts of those people is still un-known, but the communitybelieves them to be dead.

Human rights violations (com-mitted after MoU). Communityaccuses TNI personnel of rapinga woman in the village.

Economic grievance


No action taken.

No action taken

No action taken

No action taken.

Formal and informal: AMM nego-tiated resolution with help fromKeucik and adat leaders; achievedthrough traditional methods.

Not clear.

Informal: Adat. Case resolved.

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Appendix 1


The villagers and village leaders condemnedthese acts but they could not do anythingbecause there was nothing that one could doto help others. Community afraid to reporttheir grievances to the formal justice system.

Community members remain angry over thesepast violations but are scared to take any action.Believe that no investigations will be conductedto reveal the truth or prosecute perpetratorsof human rights violations.

The Keucik did not know anything about thisissue. Nobody has raised the issue elsewherebecause they are afraid of the state apparatus.

The villagers condemned the violence butvillagers cannot do anything because such prob-lems are considered private family problems.The victim herself believes that it is a privatefamily matter. The victim is afraid that, if herhusband finds that she has reported it, he willleave her or treat her worse than he already does.

Common problem easily solved by traditionalleaders.

Widow is still concerned because she fears thathe may coerce her into giving him the certifi-cate.

The villagers condemned very strongly theactions of the Brimob and militia.

Ex-GAM angry that reintegration assistancehas not yet materialized. Members did not haveinformation about upcoming programs to belaunched by donors and by the government

Villagers afraid to discuss the issue publicly.Community members stated that during theconflict GAM members sometimes raided otherGAM villages, but would never do so with theirown village.



Human rights violation. Disap-peared persons.

Human rights violations. Sum-mary public executions (duringthe conflict period). Accusationthat TNI personnel summarilyexecuted suspected GAM fight-ers in full view of villagers. Aimwas to scare villagers and deterthem from joining GAM.

Economic injustice. Widows ofthe conflict not receiving anyassistance.

Domestic violence.


Inheritance rights of a childchallenged by extended familymember. The case of a GAMorphan whose father was shotand killed and whose landownership rights of widow andchildren were disputed by anuncle. The uncle could not sellthe land because the certificateremains with the mother.

Human rights violations. Houseburnt down by militia assistedby Brimob during the conflict.Wife of suspected GAM memberphysically abused.

Economic grievance

Human r ights v io la t ions .Villagers reported that duringthe conflict GAM from a neigh-bouring village conducted raidsand extortion against residentsof this village.

Informal: Keucik. No resolution.

No action taken.

No action taken.

No action taken.

Informal: Keucik. Case resolved.

Informal: Keucik. If intimidationcontinues, woman will report tothe police.

Formal: Camat. No resolution ofgrievance and no compensationprovided by the government.

Informal: Keucik has soughtinformation but no resolution togrievance.

No action taken.

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Appendix 1


The villagers gave no opinion on this issuebecause they felt that it was a private familymatter.

The villagers did not want to give an opinionon this issue because village assistance isdistributed through the keucik and other villageleadership. Villagers cannot ask directly to relatedgovernment personnel e.g. Dinas Sosial. Villagerswant to approach government officials but lackknowledge about procedures to do so, they alsoexperience financial difficulties and distance istoo far to travel.

The Gayo villagers told the research team thatthey were sympathetic to the situation of theseAcehnese who were displaced from Gayo landbut that they could not provide any assistance.Village leaders also said that it is a ‘sensitivematter’ as those now living in Acehnesehouseholds are Gayonese. Acehnese IDPs havenot reported their cases to the police or courtsbecause they are afraid of local militia.

Community members remain scared to discussthese matters openly.

Community members remain scared to discussthese matters openly.

Keucik and villagers remain traumatized.

Community members believe they are entitledto assis-tance and are waiting for external aid.

Community feels disadvantaged and unable toaccess government services. Isolation makes itdifficult for community members to engage inproductive livelihood activities


Jus t i ce Is sue s Community Act ions and J u s t i c e S y s t e m U s e dPercept ions

Unequal distribution of maritalassets after divorce.

No government assistance forwidows of conflict.

Acehnese returnees denied landand housing rights.

Human rights violations. Heavyfighting during the conflict,villagers intimated and sufferedphysical abuses from all parties(intimidation, killing of persons).

Destruction of property (homesand assets during the conflict).Suspected perpetrators - GAM,TNI personnel and local militiamembers.

Human rights violation.Intimidation/threats to keucik.

Unequal aid distribution.No reconstruction assistance.Villagers have not receivedassistance to clear the village andrebuild their homes.

Economic grievance. Poorinfrastruc-ture and remotelocation.

Informal: Keucik, no resolution ofgrievance. Wife cannot afford toaccess the formal system.

Informal: Keucik said that he wouldfollow-up with the camat but stillno resolution.

Informal: Adat and keucik. Noresolution of justice issue.

No action taken.

No action taken.

No action taken.

Formal: Keucik put forth proposalto camat but no action taken toresolve grievances.

Formal: Camat given proposals butgrievances not resolved.

135

Appendix 1


The villagers think that the victim must havebeen GAM and therefore the widow does notdeserve assistance.

The villagers did not say anything about thisbecause the issue of GAM remains very sensitivein this village.

Gayonese and Javanese villagers gave no reactionto this. Acehnese remain scared and feel intimi-dated by local groups.

Only women are sympathetic to this case. Menlargely think that the woman was beaten becauseshe did not serve her husband adequately.

The villagers consider this case to be a privateissue.

People are sympathetic but do not do anythingbecause they feel these are private family issues.

There continues to be paranoia within thecommunity regarding ‘outsiders’ and theirintentions. Women could not speak openly withthe research team because the keucik’s wifeattended every interview.

There was no response from the villagers becausethey say that these decisions are taken by theKeucik. Women do not report these cases to anyauthorities because they are afraid of the stateapparatus.



Human rights violation.Acehnese widow claims husbandwas killed by TNI.

Harassment. Stigmatization of achild whose father was killedbecause he was suspected ofbeing a GAM member.

Land ownership cases. ManyAcehnese have not been able toreturn to their lands, which theyleft in 2000. There were a coupleof people who tried to return butstill faced harassment by militia.Some IDPs have reported landownership claims to the camat buta repre-sentative from the IDPswas later beaten so it is not yetsafe for them to return.

Domestic violence leading topsychological and physicaltrauma.

Domestic violence, woman seek-ing divorce.

Child abuse. A young girl nowexperiences severe headachesbecause of continued beatings.Younger sister suffered a burn tothe chest when her father threwa paraffin lamp on her.

Economic grievance. No assis-tance for widows of conflict,whose husbands were killed byRI forces.

Corruption. Suspicion of corruptaid distribution by the govern-ment. Widows are not receivinggovernment fuel subsidies.

Informal and formal : Keucik andpolice. Issue not yet resolved.

Informal: Keucik. No resolutionof grievances. Harassment con-tinues.

Formal: Camat and AMM. Issuenot yet resolved.

Informal: Keucik. Reconciliationachieved. Then violence startedagain and woman advised to go toformal courts by relatives living inthe village. Unclear what happened.

Informal: Keucik. No resolution ofgrievance.

Informal: Keucik. No resolution ofgrievances.Keucik reluctant to takethe case to the police because hefears the father.


No action taken.

136

Appendix 1


Community members feel that they do notreceive aid because the state administrationdiscriminates against them.

The villagers condemned the actions and wouldtry to protect the women but there was littlethey could do vis-à-vis the TNI. Villagers remainscared of reprisals.

The villagers are sympathetic to the wife andagree that she should divorce him immediately.

The villagers are sympathetic but cando very little to support them.

The villagers strongly condemned the forces’actions. Villagers say that the TNI did not eventry to prove that someone was a member ofGAM before committing such offences.However, at that time, there was not a personwho could try to defend the victim becauseeveryone was afraid for his/her own life.



Unequal aid distribution.No housing for victims of con-flict and discriminatory aid distri-bution by the government.Villages that were not directlyaffected by the conflict havereceived assistance.

Human rights violation commi-tted against women. One wo-man’s child now limps as a resultof beatings and suffers fromheart problems.

Domestic violence. Man trauma-tized by conflict is abusing hiswife.

No aid for widows of conflict.

Human rights violation.Man shot by TNI, house andcrops destroyed. Beaten by TNI,now he is paralysed on the righthand side of his body.



Formal: Wife has filed for divorceat the Syariah Court.

Informal: Keucik. No resolution ofgrievances.Claim-holders do nothave re-sources to access otherjustice mechanisms.

Informal: Keucik; resolution of caseleading to compensation andgovernment financial assistancefor the victim in the form of amonthly pension.

137

Appendix 1


Most villagers supported the wife’s decisionto leave her husband.

Many villagers are sympathetic to this woman,while others are not because her husband hadbeen a policeman.

These women would like to officially divorcetheir husbands but all say that they do not haveenough money to file for divorce at the courtsand do not understand how the courts work.Villagers consider divorce to be a privatedomestic matter.

The villagers are sympathetic to the claim-holder’s situation, especially as she now hasnothing since her parents sold the land. She nowhas to live in the house of the person whobought her land.



Divorce.

Human r igh ts v io la t ion .Disappeared person. Woman’shusband was a policeman andhis body has still not been foundtill today.

Wo m e n d i v o r c e e s w i t hdependents not receiving anyfinancial support from ex-husbands (no official divorce).

Land ownership dispute. Parents sold land belonging to their adultdaughter.

Formal, Mahkamah Syariah, difficultprocess because the husband doesnot want to divorce his wife, casenot yet resolved

Formal: Police; no resolution ofgrievance.

Informal and Formal : Keucik; noresolution of grievances. KUA;no resolution of grievances

Informal; Keucik, no resolution ofgrievance.Claim-holder now wantsto go to the formal justice system.

138

Appendix 1


Villagers cannot do anything to intervenebecause they think that this is the government’sprerogative.

The villagers do not ask anyone about theseissues because they perceive them not to be theirbusiness. Ex-GAM members reported the issueto the camat but they were received in a “roughand unprofess iona l manner” .Ex-GAMcombatants are angry about corruption that theybelieve keeps them poor.

During the conflict, villagers were not sympa-thetic towards GAM. Villagers were also afraidof the TNI and that the TNI would affiliatethem to GAM if they showed any sympathytowards GAM.




Discrimination. Governmentofficials discriminating againstex-GAM combatants and theirfamily members.

Corruption with distribution ofgovernment assistance. Ex-GAMmembers allege that all theassistance they receive is shortof what they are entitled tobecause government officialstake percentages before it getsto them.

Human rights violation. GAMwives who were victims ofviolence and stigmatizationfrom government personneland TNI during the conflict.Damaged and seized propertiesof GAM families during theconflict by military personnel.

Economic grievance.

Formal: Camat; no resolution ofgrievance.


No action taken.

No action taken.

139

Appendix 1


It was reported that virtually everybody in thisvillage is experiencing trauma.

The villagers strongly condemn this woman’sactions and consider it a violation of humanrights.

No data.

No data.

Villagers are sympathetic but have not doneanything. Considered a private family problem.

No data.



Human rights violation. Womennow suffering from trauma.Husbands were killed by TNIduring the conflict. Women werealso threatened and intimidatedby TNI personnel.

Illegal marriage. Woman marriedto one man married another manwho himself was already marriedto another woman.

No government land assistancefor female GAM member (inongbalee) that has not yet received herland package (as per MoU).

Illegal divorce. Victim of domes-tic violence seeking divorce.

Abandoned wife. Disabledwoman physically abused byher husband and then aban-doned with no financial support.

Landless IDPs. Two families thathave land and houses have beenunable to return to their homesbecause of insecurity and thecontinued presence of militia.They believe their land is beingused other people.


Informal and Formal: Keucik andadat; no resolution of grievance.Police; no resolution of grievance.


Informal: Keucik; divorce papersfor woman written by keucikbecause the woman couldnot afford to go to the courts.

No action taken.

No action taken.

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Appendix 1


Villagers condemn the mother’s maltreatment ofher child but do not think that they can do anything. Village leaders have not intervened.

No data.

Villagers feel that the family members of the Keucikreceive preferential treatment regarding aiddistribution and rights to use communal properties.Villagers will only discuss such cases amongthemselves and not take their cases elsewhere. Theyoften feel that they cannot go to the police or camateither because the police and camat are friends withthe keucik.

Community traumatized and scared to reportgrievances.

Community members remain scared of discus-singsuch issues for fear of reprisals. Moreover, theydo not believe that the state will take serious actionto investigate past human rights violations.

No data.

During the conflict community members wereafraid to go to the local farmers association. Post-MoU community feels safer with greater freedomof movement.

Community members believe that lack of educationfacilities undermines their ability to build goodlives for themselves and denies them equalopportunities with people that have access toeducation.

Common in the village and community membersbelieve these problems are easily solved throughtraditional methods.

Common in the village and community membersbelieve these problems are easily solved throughtraditional methods.



Child abuse. Perpetrator - mother withmental illness.

Widows and elderly not receiving anygovernment assistance.

Unfair decision-making and distribution ofassistance.

Human rights violation. Communitymembers experienced violence andintimidation from TNI personnel and GAM.

Forcible acquisition of private property(during the conflict). TNI and policeforcibly took motorcycles and vehicles ofcommunity members in order to conductoperations against GAM. Would later returnassets in damaged condition withoutcompensation or repair. If com-munitymembers refused they were afraid that theywould be killed.

Destruction of private property (during theconflict). Houses burnt, perpetratorsunknown. Community members have notyet received reconstruction assistance.Community members have forwardedreconstruction proposals to BRR.

Economic grievance. Livelihoods un-dermined during conf lict by limitedassociation.

Economic grievance. No formal stateeducation facilities available. Onlyinformal/ traditional education facilitiesavailable in the village (e.g., pesantren). Nogovernment assistance to access formaleducation. Conflict in the area preventedgovernment from improving educationfacilities.


Minor fighting among communitymembers.

No action taken.

No action taken.

No action taken.

No action taken.

No action taken.

Formal: Camat; no resolutionof grievance.

No action taken.

Formal: Camat; no resolutionof grievance.

Informal: Keucik.Case resolved.

Informal: Keucik.Case resolved.

141

Appendix 1


Villagers are sympathetic but cannot do anythingto assist as they themselves are poor. Somevillagers related to returnees along kinshiplines provided them with assistance.

Community members believe that lack ofeducation facilities and infrastructure under-mines their ability to build good lives forthemselves and denies them equal opportunitieswith people that have access to education. Lackof road infrastructure also undermines theirability to make productive livelihoods byselling crops at markets (i.e., markets not easilyaccessible).

Community members believe that lack of edu-cation facilities undermines their ability to buildgood lives for themselves and denies them equalopportunities people that have access toeducation.

Village leaders claim it was necessary that inorder to make sure security personnel did notharass the community or make false accusationsthat villagers were part of GAM.

Community members believed it was an acci-dent and should be resolved at village level.

TABLE 26: VILLAGE C1


Landless returnees.These peo-ple do not have land and live invery poor conditions.

Economic grievance. Poor infra-structure undermining commu-nity livelihoods. The villageleadership has tried to claimassistance from the camatwho says that the issue needs tobe decided from the districtgovernment. The keucik hastaken the issue to the districtgovernment but there has beenno reply yet.

Poor access to education. Manychildren only complete elemen-tary school. The villagers aretrying to rally the local govern-ment to build education facili-ties in the village.

Corruption (during conf lictperiod). Village leadership gaveBrimob personnel stationed inthe village a television.

Accidental shooting with airrif le (during conflict period).


Informal and formal: Keucik, wholater requested help of camat. Noresolution of grievances.


No action taken.

Informal: Keucik. Case resolved.

142

Appendix 1

Appendix 2Profiles of Village Research Sites


144

Appendix 2


Profile, Village TA4

The vi l lage measures 335 ha in area.Most of the village land is used for productiveends; 40% for fisheries, 30% for estateplantation farming and 1% for rice farming.209

Local mainstay livelihoods vary greatly,including fishing, salt farming, trading,hawking (before the tsunami, hawking on thebeach was possible), raising livestock (goats,chickens, cows; most families own livestock),clothes washing (there are about 5 washers).Some fishponds are owned by villagers, only2% are owned by people from outside thevillage. 210 In the meantime, there are not thatmany rice farmers due to the limited area forrice fields. 211 The village has a populationof 964, which consists of 247 households.Most are of Acehnese ethnicity. As informedby the keucik, the village has 12 widowers, 52widows, 84 orphans 212 and 262 school-agedchildren enlisted in elementary to senior highschool. During the tsunami 47 people died.Most were women and children; only twoadul t men d ied dur ing the d isas ter.

Socially, the village’s community is internallycoherent. The assessment did not find socialfrictions or inequalities strong enough tocreate horizontal conflicts among villageresidents. Former combatants are presentlyintegrating with the community which ismostly Acehnese and the inf luence ofex-GAM rema ins s t rong ; they haveconsiderable influence in both formal andinformal village forums.213 However, theassessment found tens of construction

workers – Javanese transmigrants involved inhousing projects. They were brought in fromoutside the village by the project’s contractor.Their presence caused a problem as localvillagers became jealous. Local villagers wereof the opinion that they too should beinvolved in construction activities; this led toa political/ethnic/economic inf luencedhorizontal conflict between villagers and thet ransmig rant workers w i th ex -GAMintervening to intimidate the migrant works.Villagers also suspected that the Keucikcolluded with the contractor to benefit fromthe construction work at the expense of localresidents. AMM later intervened together withIndonesian police and military personnel tomediate the dispute. Village TA4 comprises4 sub-villages (dusun). There is only oneformal school in the village, i.e. Al-KindiKindergarten. Other schools found here areIslamic boarding schools, pesantren or Koranstudy centres (i.e. Babul Khairat, Darul Fatah,Nurul Yaqin and Daiyul Fata).

During the conflict, the village was affectedby rampant abuse of human rights perpetratedby TNI. The community was prevented fromconducting any form of advocacy against theviolence. Most of the village was destroyedby the tsunami. However, the keudee, thevillage’s economic centre situated at a three-way junction, was immediately repaired. Whenthe A2J team arrived, rows of wooden shophouses were seen back in operation. Localshops and eateries have revived as well.

209 Of 335 ha, 100 ha are estates; 3.5 ha are rice fields; 133.5 ha are fishery ponds; 4 ha are marshland; 21 ha are settlements; and 73 ha are usedfor other purposes.

210 Ponds were built in the 1970s.211 Rice farmers source their income partly from rice fields outside the village. They apply a pawning system, locally known as gala. The only

records thereof are receipts made as witnessed by the keucik of where the rice fields are located.212 Data on the number of widows are strikingly different from that of the sub-district administration and the provincial Social Affairs Office

(Dinsos). The former claims there are 3 while the latter 18.213 In an interview at a coffee shop with four formal leaders, one who was facing the door said out of the blue, “As long as there is GAM

everything goes unhindered. Everything gets done.” But not long after, the same person said, “Those joining GAM are fools. Many of themhave only graduated from elementary school; or not even that. They are poor, and jobless.” The first statement he said when a GAM memberentered the establishment, the second came after they had more privacy.

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Appendix 2Appendix 2 - Profiles of Village Research Sites


Another issue which occurred in the wake ofthe tsunami is related to distribution ofass is tance. There are many cases ofdissatisfaction related to the humanitarian aidthat is seen as insufficient to help speedthe village’s economic growth. The adat(traditional) structure is functioning as is thevillage’s administrative apparatus in terms offacilitating resolution of village disputes. Somecases were discussed in several interviewswith village administrators. The communityhas very little trust in law enforcers, especiallyin light of what they endured during theconflict.


The village is 367 ha in area. Most of the area(267 ha or 73% of the total area) is used forpond farming with the remaining used forcrop farming (25 ha, 7%), settlements (32 ha,9%) and “other” purposes (43 ha, 12%).

Various acts of violence were experienced bythe people here during the past conflict. Inthis particular village a military post had beenestablished at one of the fish auction halls.It was here that the people reported theiractivities, whether they were going to sea (tocatch fish) or to the fisheries. The village wasseriously affected by the tsunami. Fifty peopledied in the disaster, and the entire populationwas displaced.

When the assessment was conducted, mostof the residents had returned, residing inmakeshift homes constructed with supportfrom an NGO. These houses serve asreplacements of temporary living centres(bar racks) . Plans are in place for anInternational NGO to support construction

of permanent homes in the village. Thevillage’s population is comprised of 889people, or 216 households. Of the 216households, 36 are headed by women. Someof these women were widowed because ofthe conflict. Before the tsunami the villagewas struggling economically. For example,of the 205 homes 165 were shacks.214

Mainstay livelihoods are made up of: fishing,rice farming, fisheries, salt farming. Inaddition, before the tsunami there weretraders, employees, home industries, andproviders of transportation service. Localeconomic activities were destroyed by thetsunami. For example, fishery ponds weredestroyed and could not be restoredand fishing boats were lost/damaged.

At present, livelihoods activities that appearto be recovering are salt farming and“individual traders”. Assistance is also beingprovided by an NGO to rebuild the fisheryponds. Some of the women here are saltfarmers. Their husbands also take on jobssuch as trading or muge. Some of the publicfacilities available in this village are: a footballfield, elementary school, public cemetery, fishauction hall, meunasah (prayer house, but notused for Friday prayer), a testing hall, “MCK”(bathing, washing and toilet facilities), andartesian wells.

Houses will be built by the NGO on thecondition that is it on land owned by the aidrecipient. However, there are 50 family heads(FH) who do not own any land and thereforecannot receive housing assistance. In the past,these families had built houses on land ownedby another person and lived there for tens ofyears. There are 32 female family heads.

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214 Details: 22 permanent houses, 18 semi permanent houses and 165 non permanent houses [shacks].


Out of these 32 women 13 are divorced while19 are widows whose husbands died a naturaldeath. Meanwhile there are 27 children whohave lost their fathers.

Divorced women do not receive any kind ofalimony from their ex-husbands. They haveto bear the burden of supporting their familythemselves and looking after the interests oftheir children (school, etc.). They do notdemand support from their former husbands.They also do not report their conditions tothe keucik or to the police. Women revealedthat they were not given the opportunity tobecome leaders because in the village it is acommon understanding that leadershippositions are held by men. They relate it withreligion. Also, according to them, problemsare settled faster when handled by men.Women in general do not have permanentproductive livelihoods (i.e., income generatingemployment). The only work available iscatching fish in the river or at sea when thetide is not high. They sell the fish that theycatch but the income is meagre and onlyenough to buy food for one day. Anotherproblem for them is the availability of healthservices. There is a puskesmas (communityhealth centre) but it is not operating due tolack of medical equipment. For this reason,the villagers must go to the sub-district capitalwhen they need medical treatment. Womenalso have difficulty in providing for theschooling needs of their children; theelementary school in the village does not haveenough teachers. The cost of sending childrento SMP (junior high school) and SMU (seniorhigh school) is quite expensive for them,particularly in terms of transportation cost.The nearest SMP and SMU are located in thesub-district. The “jadup” or contributionfor l iv ing costs should be of somehelp to them, but is not received regularly.

Profile, Village CA5

The area of the village measures 315 hectares.Some 150 hectares are used for rice fields.The economy evolves around the agriculturalsector: namely rice farming, coconut, arecanut, and cacao plantations. The rice fields inthis village are dry and dependent on rainwater for their irrigation. The people alsoplant other crops during the dry season, suchas soya beans, peanuts, maize and cassava.

Some of the public facilities available in thisvillage are schools, 215 a mosque, two meunasahand one health centre (puskesmas). Thepuskesmas has not functioned since the militarystate of emergency was declared in 2003. Forh e a l t h s e r v i c e s t h e p e o p l e m u s tto the sub-district capital but this is difficultbecause of t ranspor tat ion problems.

In 2003 the population was recorded at793 people consisting of 383 males and 410females, or 185 house holds. According tostatistical data from the subdistrict-admi-nistration office, the village is categorized asa poor village. 63% of houses in the villageare made from wooden planks /bamboo.216

There are 138 family heads who receive fuelcompensation subsidies.

A f ac tor y i s loca ted approx imate l y1-2 kilometers from the village. Accordingto the local residents the factory is a sourceof many problems because of ecologicaldamage caused to plants and agriculturalfields. This village does not have a villageoffice. Administration is handled at the homeof the keuc ik or at the home of thevi l lage secretar y. The vi l lage has s ixsub-villages (dusun). The election of a keucikbegins with each sub-village proposingcandidates, from which three candidates will

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215 A private Islamic elementary school, a state elementary school, state junior high school, and a private Islamic high school.

216 There are 6 houses with brick walls, 61 houses with half brick half wooden walls and 113 houses with walls from wood or bamboo.


be selected, and then one will be elected asthe keucik. The election will be witnessed bythe camat.217 The tuha peut and tuha lapanfunction as legislative bodies and providesadvice in the area of law and religion, whilethe tuha lapan handles the economic sectorand development sector. However the keucikno longer handles traditional (adat) problems,since the keucik seldom stays in the village.218

During the conflict this village was consideredto be a “grey area”. Armed fighting oftenbroke out between the TNI/ POLRI andGAM. In this village several TNI (Military)posts were set up. Villagers report many caseso f v i o l e n c e , s u c h a s k i l l i n g ,torture, ill treatment, and intimidation.219


The road to this village is an asphalted road,making it easy to reach and for villagers totravel to the sub-district and district.220 Almosthalf of the area of the village is used to plantrice. The total area of the village is 106hectares, while the land used for rice plantingis 50 hectares. The majority of the peoplehere earn a living as rice farmers. Otherlivelihood activities include plantation farming(coconut, coffee, areca nut and cacao),livestock breeding and small-scale/ homeindustries. This village is a poor village,

according to statistics in the sub-district office76% of the homes in this village are madefrom wooden planks/ bamboo. According tothe village statistics, 54% of the families aredestitute while the remainder are poor (i.e.,do not generate any income or live below thepoverty line).

The population in 2001 was recorded as 628persons; in 2002 it was 794 (or 197 FH) andin 2003 it was 704 (or 172 FH, consisting of333 males and 371 females). The decreasebetween 2002 and 203 is attributed to peopleeither moving out of the village or death.

According to the statistical data at the sub-district office, this village is another “greyarea”.221 Several cases of human rightsviolations were suffered by the residents.This included burning of homes and crueltreatment of the residents by Wanra fromother villages with support from the Militaryand the police (TNI/ POLRI),222 and severalcases of murder and missing persons.223

Violations were also perpetrated by membersof Berantas, a Wanra group formed by theTNI.224 There were, in addition, cases ofextortion by either the TNI/ POLRI or byGAM. When the conflict escalated in 2003there were only five pupils and one teacher

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217 The current keucik has been the keucik since 15 June 1999 and his term of service will end on 15 June 2007. During the Military State ofEmergency (DM), he was accused of being an informant.

218 Up to now the keucik rarely stays in the village. Probably for security reasons, in connection with the involvement of the keucik in Berantasduring the conflict and suspected corruption of PPG funds in 2004.

219 A2J Team interviewed several widows whose husbands were killed because they were suspected of being GAM members or the parent ofGAM members.A case of rape happened in 2005 after the MoU, the rapist wore a mask; his ident i ty is unknown.

220 Many of them have a motor vehicle, namely a motorcycle. There were 70 motorcycles in this village.221 During the conflict, areas were classified according to the level of escalation in conflict between TNI/POLRI and GAM, namely white areas,

grey areas and black areas. White areas refer to low escalation of conflict, grey areas are medium escalation of conflict and black areas referto high escalation of conflict in the area.

222 There were 4 cases of house-burning and other cases of violence.

223 There were 3 cases of murder and 3 cases of missing persons.224 Benteng Rakyat Anti Separatis, a Wanra group, established for an intelligence operation by the Intelligence Task Force in the territorial unit of

Kodim 0103/ AcUt. This organisation was declared for the first time in Pidie on 1 October 2003 and in Lhokseumawe on 12 November 2003.It is estimated that the masses reached a total of around 20,000 people. Some cases of violence involved members of Berantas from theneighboring villages as the perpetrators.


(school principal) that still attended the stateelementary school.225

The village consists of 5 sub-villages. Theexisting village apparatus are the keucik(village head), village secretary, tuha peut/ tuhalapan.226 There is no village administrationoffice in this village. In settling disputes, thevillage residents rely on the village apparatusand tradit ional (adat ) leaders. Beforethe military state of emergency, GAMmembers were quite dominant and involvedin settling problems within the village.

District, Aceh Tengah


Up until the end of January 2006 the villagewas empty. It had been abandoned by resi-dents that sought refuge elsewhere from theconflict. All the houses were burned downor otherwise damaged by elephants and theonly remaining buildings were meunasah andsome school buildings.227

The majority of the population originallycomes from the Gayo ethnic group, laterresidents come from the Acehnese ethnicgroup and a minority comes from the Javaneseethnic group. In total there are 365 people,87 family households. The village consistsof 3 sub-villages. Since being abandonedduring the conflict period nobody residedin the village.

Some of the residents moved to a relocationarea in a nearby village (10 km from VillageCA2). The IDPs occupy wooden houses builtby the government. The majority of familiesliving in the relocation area are Gayonese anda small number are Javanese. At the end ofJanuary 2006 some Acehnese that had beenIDPs in other districts people began enteringVillage CA2 by occupying the meunasah andabandoned school buildings. They are thepeople f rom coasta l a reas of Aceh.

In the past, the economy of the residents ofVillage CA2 depended on crop farming andprofits from selling coffee and nutmeg. Nowthe people’s plantations have been overgrownby jungle after five years of being neglected.The economy of people from this village isnow dependent on the plantations around thelocat ion of their temporary place ofsettlement, with most of them working ashired labourers earning between Rp 20,000to Rp 50,000 per day. However, employmentis largely seasonal.

As security conditions are beginning toimprove, more Acehnese residents arereturning to their home villages. Thesereturnees have the potential to cause newconflict with regard to the location ofresettlement areas in the neighbouringvillage, most of whom are Gayonese. Inaddition, many of the returnees no longerhave adequate housing with most living inthe ruins of the meunasah or in the homes ofother residents who are willing to give themshelter.

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225 In 2003, only three boys and two girls remained as pupils with only one teacher/ principal of the school. This school is one of two elementaryschools in this village. The other elementary school is an Islamic school.

226 Other apparatus such as the Head of Government Affairs, Head of Development Affairs, Head of Social Welfare Affairs, Head of Financial Affairs, and Head of General Affairs could not function properly, particularly during the conflict.227 There are 95 houses that are totally damaged: 36 damaged because the residents had left the area, 20 houses burned down and 39 houses

damaged by elephants. According to one of the informants, while the conflict ensued between GAM and TNI, both parties were equallyviolent and involved in burning down the houses of the people.



The area of the village measures about 16km2 with a population of 1,219 people, or308 families. There are three ethnic groupsin this village, namely the Gayonese (12%),Acehnese (3%) and Javanese (85%).228 Therelationship between the Gayonese andJavanese is good and there are many marriagesand family relat ions between the twoethnicities. Nevertheless there are alsomarriages between the Gayonese andAcehnese, as well as between the Javaneseand Acehnese.

This village was a part of the conflict areaand several villagers were victims of theconflict. In the year 2000 the keucik and headof LKMD were murdered.229 On 21 July 2001,three of the Acehnese villagers were executedin the sugar cane fields. From the informationwe received, there are 10 widows living in thevillage, their husbands had all died in theconflict and all were Acehnese.

During the conflict period, in 2000-2001,many of the Acehnese in the village movedout and therefore the people living in thevillage are now mostly Gayonese and Java-nese.230 Among the community there is anassumption that the Acehnese are membersof GAM, and consequently they are subjectedto threats and intimidation. Some of theAcehnese families who left the area duringthe conflict have tried to come back but didnot receive a positive response from the localpopulation. As the situation was not verypromising, they returned to the shelter inRonga-ronga or at Kilo 60.231 Others arecamped on the outskirts of the village intemporary dwellings and are attempting tohave their abandoned lands returned to themthat have been occupied and farmed bylocal residents.

The village comprises of three sub-villages.In each of the sub-villages there is a meunasah(prayer house). In addition to the prayerhouses there is one mosque for the entire

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228 Gayonese 148 persons, Acehnese 39 persons and Javanese 1046 persons.

229 Keucik of Village CA3 was shot to death and body thrown under the bridge.

230 The A2J team was able to talk to several Acehnese women. These women came from Ronga-Ronga .

231 A case of assault on several ex-members of GAM. There are several versions to this story: the PB-HAM Aceh Tengah says the ex-GAMmembers demanded money from the village head (keucik). The keucik would give them the money because he felt sorry for the ex-GAMmembers. However they acted impolitely while in Village CA3.

When the A2J Team came to the Village CA2, we experienced problems, because we encountered only forest.Fortunately we met 5 men who were sitting by the side of the road at the edge of the forest. We stopped andasked them where Village CA2 was located. And they pointed to the area where we had stopped. They told usthey were displaced residents who were currently living in another sub-district. All the people of Village CA2had left the village due to the conflict, since 2001 and spread out to various different areas. At present the largestconcentration is found at the resettlement location. We visited the location of Village CA2. Our first goal wasto see the meunasah in the sub-vil lage, which is one of the few buildings left standing, andto see the physical impact that the conflict had on the village (e.g., through either conflict or abandonment).

The five men we met when we visited the location of Village CA2 who accompanied us said this was the firsttime they returned since 2001. They pointed out the plots of land where their homes had once been, that werenow covered with trees, and the coffee plantations were now more appropriately called forests. Two of the 3meunasah that remain standing are in a much damaged condition and their walls full of graffiti. Meanwhile, theschool buildings that the men said are still standing could not be accessed as the road and entry into the schoolarea was overgrown with thick jungle. However, it was also stated that returnees currently live in the schools.

BOX 29: EFFECTS OF CONFLICT ON VILLAGE CA2


village. In general, the residents of the villagethat did not flee during the conflict periodhave faith in the government’s formalinstitutions. This is a form of loyalty (to acertain degree) towards the Unitary state ofthe Republic of Indonesia. As in most placesin Aceh Tengah, one can see many red andwhite flags (Indonesia’s national flag). Almostall houses put up the “Red ‘n White” flag.

The village government is supported by strongties between the keucik (village head) and sorakopat. Consultations are always held before adecision is made. Likewise with the mukim.The function of the mukim is said to be stillimportant in settling disputes.232 However itis not yet known how this traditionalinstitution can reduce the friction betweenthe different ethnic groups that live in thisvillage. As a result, when there are disputesamong members of different ethnic groupscases are often reported to police.

The majority of the people earn their livingfrom agriculture. The major crops that peoplecultivate in plantations are coffee, in 6 hectareswith the capacity to produce 7 tones;sugarcane plantations 72 hectares withproduction capacity of 720 tones; and chilipepper plantations, 10 hectares. Sugarcane isthe key crop in this village with manytraditional sugarcane industries. Comparedto other village assessment sites, Village CA3has adequate teaching facilities. There are 2kindergartens, 2 elementary schools, and 1junior high school.


The village is about 5 km away from the mainroad and is situated on a steep slope. The

road leading to the village itself is alreadyasphalted, except for the last 2 km. When theA2J team came to visit the village, we couldsee wild grass growing high on each side ofthe road for the last 5 km before reaching thevillage. The village is divided into 2 sub-villages that are located far apart from eachother. The existing houses and buildings inthe village are built in scattered locations andfar apart from each other. The first im-pression one gets upon entering the village,is that it is a deserted and unoccupied place.There are houses, but they clearly appear tobe neglected and unkempt. All the houses aremade from wooden planks. Similarly, theplantations around the housing area are alsounkempt.

Since early 2000 the entire population left thevillage for safety/ security reasons as therewas increased intensity of conflict betweenGAM and TNI/ POLRI. In all, 448 peopleor 115 families were displaced. Eight houseswere burnt down during the conflict.233

Meanwhile 62 homes were abandoned. Anumber of plantations covering an area of106.5 hectares had also been abandoned.These plantat ions were owned by 69farmers.234 All the houses registered werewooden houses.

Up until January 2006 it was recorded that183 persons (or 52 families) moved to a neigh-bouring village and 265 persons (or 63families) relocated to other villages in thesub-district area or to other sub-districts inthe district. Besides displacement, the villagesuffered physical and material damage, asrecorded by the village apparatus. 235 In thepast the people’s economy depended on coffee

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232 The fact that the balee mukim in Village CA3 is not used does not mean that the mukim has no role in the social life of the village/ mukim.

233 “Caught Fire” is the official term used in the government’s administrative documents. Meanwhile according to the residents, the eight houseswere purposely burnt down or torched. There is no mention of who the perpetrators are.

234 Taken from recapitulation of data on abandoned plantations and houses due to conflict in Aceh Tengah. In the recapitulation it is mentionedthat 62 homes were abandoned, 8 houses burned and 106.5 hectares of plantations abandoned, owned by 69 persons.

235 Eight houses burned, 22 houses damaged, 1 meunasah damaged, 230 hectares of plantation abandoned, 9 persons suffered physical and mentaldisability due to shooting and torture; and 7 were victims of robbery.


plantation farming. Some of the residentshave begun to make efforts to restore theircoffee plantations, even if limited only to theland immediately surrounding the resettlementarea. They have not gone farther to theplantations outside the resettlement/villagearea because of lingering security fears. Noass is tance has been provided by thegovernment or donors (i.e., tools) to help thevillagers rehabilitate their lands or homes.

Profile, Village C1

The village is small covering an area of 7 km2.It has a population of 309 people consistingof 141 females and 168 males, or a total of73 families. The village comprises two sub-villages. Almost all of the population areGayonese and generally have a familial rela-tionship with each other. According to tradi-tion, marriage between the residents in onevillage is forbidden. Other ethnicities in thevillage are Acehnese (3 persons) and Java-nese (2 persons).236

This village still upholds traditional customsvery strongly. Any problems that emerge tendto be settled at village level in order to main-tain social harmony in the village. In generalthe people personally know the village leaders.The current village apparatus began their termof service in 1999, which shall end in 2007.237

A n o t h e r r e a s o n t h e p e o p l e k n owthe village apparatus personally is economic.In order to have a dispute settled through thepolice, the people must pay a number ofprohibitive costs for transportation. As aresult they rely on village leaders to resolvedisputes.

The majority of the people are farmers (ashigh as 98%) that work in the agricultural/plantation sector, either as rice farmers,or cultivating coffee, vegetables, or theybreed fish at inland (lake) fisheries, or workas civil servants.238

During the conflict period, some of the vil-lagers who had earlier left the area to seekwork in other places, returned home as dis-placed persons.239 In Village C1 there was noreport of any serious violence, unlike in CA4which is situated one hour away. Althoughboth villages are similar in ethnic profile, thisvillage escaped a conflict impact by ensuringthat GAM did not enter the village. Thisworked to guarantee GoI security forces thatthe village was loyal to the GoI. Moreover,village leaders report paying bribes to Brimobpersonnel that were stationed in the villageduring the conflict period.

Some of the public facilities available in thisvillage are a Pustu (medical treatment centre)managed by a mantri (medical aide) and avillage midwife; and an elementary school.There is no secondary/high school locatedclose to this village. Also, there are nokindergartens in this village. As a result,the children have difficulty in speakingIndonesian when they enter elementaryschool.


Previously the majority of the population wasJavanese with a minority of Acehnese.240

During the conflict period, around 2001, therewas an exodus of all the residents in the

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236 Field data from Village CA1. Meanwhile in the Population Register, it is recorded that there is only one Acehnese that is a woman whomarried a Gayonese man.

237 Field data 29-30 January 2006.

238 It is noted that there are only 3 civil servants.

239 It is noted that 6 families returned.

240 Standard composition of a transmigration settlement is 70-80% transmigrants from outside the region and around 20-30% are local transmigrants.


vil lage that had been intimidated andterrorized; especially newcomers from Java.241

Some of the people fled to Meulaboh andthe surrounding area, and some went backto Java. They only began to feel braveenough to live in the village again afteran Indonesian military post was set up inthe village. Some of those who moved toMeulaboh had to move out again afterbeing displaced by the tsunami.

At the time the A2J team visited the Village,people were beginning to return to the area,but most of the families living there now arenot the original transmigrants. According tothese residents they came to live in the villagewith the “permission” of the transmigrationservice office, one of the considerations beingthat it is better to have the houses lived inrather than become dilapidated from non-use.242 The current residents are thereforeworried that the original owners may somedayreturn and tell them to move out. They hopethe local government will give some attentionto their problem.

During the conflict period an Indonesianmilitary post was built at the top of the hilloutside the settlement area. This military postwas built similar to a fort with a watch towerat one of the corners. 243 During the conflictperiod the keucik resigned. The current keucikis an acting-keucik who was appointed by thesub-district office (i.e., the Camat). Meanwhilethe position of secretary is held by a youngman who is not well experienced. Thefunctions of the tuha peut are not maximal as

not all of the residents have returned to thevillage.244 Members of the tuha peut and tuhalapan are not knowledgeable about traditionalsystems and laws. Whenever there is a disputebetween members of the community, it willalways be reported to the keucik, and then thekeucik will settle the problem according to hiscapacity and ability. However, since thepopulation of the village is small, the numberof disputes is also small.

The main livelihood of the people is farming,particularly the cultivation of palm oil. Theagricultural produce of the transmigrants thatmoved out of the village is collected by otherpersons. They do this because the ownershave abandoned the plantations for manyyears. Some plantations are left in the care ofreturnees who have come back to the village,but these returnees cannot do much becausethey are unable to frequently visit and controlthe plantations.

At present, the issue of security which is abig problem in the community is the presenceof teungku rayeuk that often come to the village.So far the people have not been able to domuch in facing the teungku rayeuk (elephants).


As it is situated on the coast this village hasbeen seriously affected by the tsunami. Atleast 89 houses were totally destroyed. Themajority of the population derives incomeas fishermen while others engage in ricefarming and plantation farming. As an

241 The people began their exodus on 30 May 2001.242 The FGD team found that the unoccupied houses were indeed unkempt and shabby. Some were already damaged. The government, in this

case the Transmigration Service Office, are making efforts to get the IDPs who are ex transmigrants at the former transmigrant settlements,including the former transmigrant settlements in Aceh Barat, to return and occupy the houses.

243 When the A2J Team arrived in mid February, the post had been left by the military. The building still remained, the electricity was still on.The building has a watch tower in front, a praying room, a living room to receive guests, and several bedrooms. At the back there is a kitchen.Around the structure is an earthen wall for protection.

244 One of the tuha peut is a transmigrant from Java who is considered to be one of the elders in the village.

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additional livelihood, some of villagers alsora ise l ivestock. The problem encoun-tered after the tsunami is that the ricefields cannot be planted.

In this vil lage there are many widows,fatherless children and poor people. It is onrecord that there are 30 widows and at least42 fatherless children. They are part of thetotal population which is 919 (consisting of462 males and 457 females; or 201 KK where174 FH are males and 27 FH are females).The population of the village consists mostlyof Acehnese and some from the Aneuk Jameethnicity. The village government does notfully function. There is often a change inkeuc ik within a re lat ive ly shor t t ime.Administratively there are four sub-villages.

Many of the villagers have returned to thevillage and are occupying emergency homeswhile waiting for the construction of housesthat are planned to be built with assistancefrom an INGO. However, this INGO willonly build 52 houses to replace some of thehouses totally damaged by the tsunami. Thiscaused tension and suspicion among thevillagers, as well as between the villagersand the village apparatus and between thevillagers and the INGO as to who wouldreceive reconstruction assistance. For a whilethe tension could be suppressed, particularlybecause the houses have not yet beencompleted. Several of the villagers are worriedthat when it is known for certain who willreceive a house and who will not a biggerconflict will break out. The keucik cannotresolve these tensions because he has familialrelationship with potential beneficiariesthat give rise to further mistrust amongvillagers as to how aid recipients are identified.


This village was also affected by the tsunami.A large part of the rice fields were damagedby the tsunami (around 85%) but theresidential areas were not affected. In thisvillage there are many IDPs that comefrom ne ighbour ing v i l l ag es and a reconcentrated in barracks.

The livelihood of the majority of thepopulation is rice farming (around 80%).Another agricultural produce is coconuts.Some of the people are ‘newcomers’ fromMeulaboh. The total population is 303persons (160 males and 143 females) .

Administrative matters regarding the villageare handled at the home of the keucik or thehome of the village secretary because thevil lage does not have a vi l lage office.Nevertheless it has complete village apparatusin terms of people taking up positions ofresponsibility.

The Imam meunasah plays a very central rolein village governance and is the first placepeople will go to discuss matters when theyhave a problem. The villagers prefer to reporttheir problems to the imam rather than thekeucik or the tuha peut. The tuha peut has asmall role due to the busy activities of themembers concerned. Also, the tuha peut isdominated by old citizens. Meanwhile thelevel of trust and faith of the youngerresidents towards the village apparatus is low,particularly towards the keucik. The lack oftrust in the keucik is strongly influenced byrumours that there is dishonesty in managingthe humanitarian aid received from NGOsoperating in the village.245 In fact, some of

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245 Field notes, Adat Systems by Location and Regions.


the tuha peut members are not sure abouttheir function in accommodating complaintsfrom the locals or resolving grievancesheld by villagers.


The road provides relatively easy access, eventhough it passes through areas affected bythe tsunami. This village is one of the areasbadly damaged by the tsunami, particularlyits rice fields. In this village there are severalethnic groups, namely Aceh, Minang, Batakand Java. There are 547 males, and 531 females,thus totalling 1078. All of them comprise 237families (with 226 male family heads and 11female family heads).

The residents of this village include 109 IDPsfrom another village that had to relocate aftertheir village was destroyed by the tsunami.They are temporarily living in the emergencytents set up in the premises of a pesantren(Islamic boarding school). Among these IDPsthere are 5 fatherless/motherless children,and three among them are siblings. In addition,there are also IDPs that are victims of conflictfrom another location that sought refuge inthis village. They are transmigrants whocannot return to their homes for securityreasons. They want to go back, as they stillhave many assets there. For the time being,they are residing in Village TA3 with guaranteeof protection from the keucik.

The traditional /adat role is dominant, alltraditional structures from keucik up to tuhapeut are functioning well, and all cases are

settled in the traditional manner. When adispute arises or a problem must be settled,the first person contacted is the village head,and then the village head will call the tuhapeut. The settlement of a ‘normal dispute’shall be reached through discussions in themeunasah or at the home of one of the tuhapeut members. The sanctions imposed forfighting in public or fighting in front ofanother person’s house is the fine of onegoat. Fighting in front of another person’shome is considered very shameful; thedecision can be made in a peace agreementsigned by the village head, the tuha peut, witnessand family of the victim on both sides. Thereare no formal standards in the process ofsettling a traditional case. There is no neatdocumentation regarding the process or thedecision that is made.


The population of the village includes 177family households, or 663 persons (329 malesand 334 females).246 The livelihood of themajority of the population is fishing atsea or fish farming (fisheries). Other types ofoccupation in this village are trading and matweaving.

This village was heavily damaged by thetsunami with 251 houses destroyed. Themeunasah (prayer house) is the only buildingstill standing and shall soon function as oneof the centres of village life.247 The localresidents have added a balee (open platformhouse) made from wood carried by thetsunami. The balee has become one of the

155

Appendix 2

246 When compared to the population in February of the same year, there is a discrepancy of 276 persons or 67 FH, as in that month it wasreported that the population before the tsunami was 1,103 persons or 244 FH; after the tsunami, it was noted that 164 people died while 939persons survived and 939 were displaced. There is no explanation for the large discrepancy. The possibility is that they moved to anotherarea outside the village during February to September.

247 The meunasah is an open structure with brick walls, still standing strongly after the tsunami. The balee, in the yard of the meunasah, is an openplatform house, with roof from sago palm leaves.


centres of village community life. Manyactivities are carried out at the balee: such asvillage meetings, sewing fishnets, reading thenewspaper, taking naps, chatting.

When the A2J team came to the village,various reconstruction activities were goingon in the village, such as the building ofhouses, reconstruction of the meunasah ,building the school, water facilities, andsanitation.248 In addition, several projects werebeing implemented in this village such asestablishing a mobile health clinic, providingboats and nets for the fishermen, and matweaving as a source of income.

Most of the population has come back to thevillage as returnees. They have put upemergency shelters, some are wooden houses,and others are only tents. The wood they useis the wooden beams and planks carried alongby the tsunami and which they can findanywhere. The material used for roofs includeszinc sheet, canvas, leaves. Currently they arewaiting for the completion of a housingproject by an NGO.

The marine fishing sector is also economicallyactive. Boats and other equipment providedby NGOs have arrived and been receivedby the f ishermen.249 Meanwhile othereconomic assistance has also been received,for example funds for mat weaving which isdistributed to women’s groups.

Marriage in the village between villageresidents is common here; and therefore manyof the residents have familial ties with eachother, even those at the leadership level.250

In the village the role of the keucik is verydominant, even though there are also othertraditional leaders such as the tuha peut/lapan.Problems that occur in the village are usuallysettled at village level. The people are reluctantto deal with the police because of badexperiences with police during the conflictperiod. Violence by the security forces hasbeen experienced by the local residents.


Most of the land in this village is surroundedby fishery ponds. The village is not far fromthe sub-district and is easy to reach. Part ofthe road leading to the village is asphaltedbut other parts are still dirt roads. Thepopulation of the village consists of 104family households or 378 persons (193 malesand 185 females). The area covers 2.50 km2.Most of the village area is used for fisheries.Other types of livelihoods include fishing,fish farming, and salt farming. From the fourexisting sub-villages, only one was badlydamaged by the tsunami. In general thetsunami did much damage to housing andfishery locations. During the tsunami 41houses were destroyed, 22 houses wereseriously damaged and 3 slightly damaged. Inaddition a school was also damaged. Atpresent, the population of one sub-village isdivided into two with one group havingreturned to the sub-village while the othergroup still lives in barracks under coordinationof the barracks coordinator. When the A2Jteam arrived in the village, the school andhouses were still being built with constructionwork facilitated by an NGO.251

156

Appendix 2

248 Several humanitarian agencies noted as having entering the village.249 Not many complaints were put forth in the interviews made by the team.250 The Keucik and Panglima Laot of the village are brothers.251 However there was some dissatisfaction towards the NGO. This discontent gave rise to protests manifested in the form of graffiti on the

public announcement board, among others “Kami tak sanang Serasih (We do not like Serasih); “Serasih keluar dari Aceh (get out of Aceh) “Polusbajingan Kamu Jangan Coba2x ganggu orang Aceh (Don’t dare to disturb the Acehnese), and “Serasih keluar kamu (get out) . Besides the graffiti,some youths threw away the material that would be used to repair the bridge connecting their village, so that the truck carrying material fromthe NGO could not enter. As far as we know, this discontent is related to the use of local manpower for the development project.


Residents of the village complain that theyhave not received any fishing boats. Meanwhilethe traditional institutions such as tuha peutand tuha lapan still function well in the sensethat they are actively involved in decision-mak ing p roces se s r eg a rd ing v i l l a g edevelopment and the settlement of disputesbetween villagers.


An asphalted road connects this village withthe district capital, thus making it easilyaccessible. However this village is located inan area that was prone to heavy conflict inthe past. Most of the village area is flatlandcovering an area of 275 hectares.

Part of the village land is used for farmingand plantation farming. There are 60 hectaresof rice fields with irrigation and 35 hectaresof rice fields with semi-technical irrigation.Meanwhile the plantation area covers 20hectares and the main crops are cacao, arecanut, coconut and melinjo (gnetum gnemon). The35 hectares of rice fields are owned by 15persons; meanwhile there are 105 farmworkers and 13 far m labourers. Theplantations are owned by 3 persons, and thereare 10 plantation labourers. Most of the landdoes not have a certificate. The people tendto be reluctant to arrange for land certificates.

The population in 2006 was recorded at 568persons or 148 family households. The typesof livelihoods include: farmers, farm workers,land renters, mining labourers, civil servants,mi l i t a r y ser v ice, teachers, midwives,mi l i t a r y/c iv i l i an pens ioners, t raders,carpenters, bricklayers, tailors, barbers, andmotorcycle taxi drivers. It is noted that 60

persons did not graduate from SD (elementaryschool), 30 persons only graduated fromelementary school, 40 persons only graduatedfrom SLTP (junior high), 60 persons onlygraduated from SLTA (senior high school),16 persons graduated from an academy, and18 graduated from university.

This village is the place where IDPs that leftother villages in the sub-district have gatheredto seek shelter. In addition, there are severalwidows whose husbands died during theconflict. The keucik of this village had oncebeen abducted and tortured by GAM. Thekeucik is quite dominant in the decision-making process in the village. The head ofthe Tuha Peut is concurrently the Head of theOffice of Religious Affairs in the sub-districtand plays a significant role in decision-makingat village level, especially when regarding thesettlement of disputes between residents. Atpresent, the villagers are beginning to revivethe functions of the traditional institutionsin the village.


This village is located in an area which isprone to conflict. Armed contact often brokeout in this area. The population is 543 personswith the number of unemployed persons in2005 recorded at 40 persons (25 men and 15women).

The people’s economy relies mostly on theagricultural sector, particularly rice farmingand cacao plantations. The total area of landis estimated to be 65 hectares of rice fieldsand 110 hectares of plantations. The mainlivelihood is farming, which involves 164persons (98 men and 66 women). However,

157

Appendix 2


at the time of the conflict, many of theplantations were abandoned for securityreasons and the villagers only planted rice.Now, they are beginning to revive theirplantations but have difficulty with raisingfunds to buy fertilizer and seeds.

This village was one of GAM’s base camps.Several ex-combatants have returned andmingle with the local communities and havetried to restart their livelihoods.252 In thisvillage live a number of IDPs from AcehTengah who suffered the impact of theconflict and IDPs from Aceh Jaya, affectedby the tsunami. In general they have notreceived much assistance. In addition thereare some victims of military violence andsome people suffer physical and mentaldisability. The team found at least one caseof physical disability and two cases of deeptrauma.

The village apparatus also have traumaticexperiences related to the conflict. Even theImam Mukim, who lives in the Village, statedhis wish to resign as mukim because ofpressures experienced from combatant groups.In many cases the traditional institutions ofthis village could not function properlybecause of pressures created by thecombatants (TNI, GAM, and police). Thetuha peut left the village for 2 years becauseof pressure from the Indonesian military/police.253 In the Tuha Peut there is one womanwho also serves as head of Muslim women’saffairs.


An asphalt road runs into the village butthere is no public transportation that enters

the village, thus making travel difficultfor those residents that do not own a motorvehicle. The village population consistsof 1103 people, or 496 family households.

This village has a village office that, accordingto the keucik, is often used at night becauseduring the daytime the people and the villageapparatus are too busy with subsistencefarming work. The village office is organisedrelatively well. In addition this village issupported by an adequate amount of capablehuman resources, but lacks infrastructure torun the village administration effectively.254

The village apparatus consists of: keucik,village secretary, and head of governmentaffairs, head of development affairs, head offinancial affairs, head of general affairs andhead of social welfare. In addition to that,there are three sub-village heads. The villagesecretary has resigned and his position istemporarily held by the head of govern-ment affa irs. Administrat ive-wise thevillage consists of 3 sub-villages. The rolesof the keucik and village secretary are verydominant in this village. The secretary is awell educated person. Transparency is evidentin this village. The Tuha Peut also has thecapability to issue village policies which arebinding to all the residents.

Some public facilities available in this villageare a kindergarten, elementary school, pesantren(Islamic boarding school), mosque, meunasah(prayer house) and puskesmas pembantu(assistant health centre). Although notaffected by the tsunami there are around 200persons who are victims of the tsunami andthat live in the homes of their relatives.

158

Appendix 2

252 We met at least 12 ex-combatants in one of the meetings that we held. Included in the group were 2 former members of “inong bale”.253 A member of the tuha peut is the younger brother of the Imam Mukim. Peutua tuha peut was wanted by the apparatus because his son was a

combatant with GAM. Meanwhile, the Imam Mukim has a son and son-in-law that are policemen.254 Like the keucik, members of the village apparatus have high levels of formal education compared to other research sites with most having

completed high school. One piece of office equipment that they claim to need is a computer for administrative work.


The social and familial relationship is veryhigh and therefore problems are always settledat village level. The villagers have faith inthe traditional system rather than the formallegal system. The settlement of disputesregarding inheritance is done throughdeliberation to reach an agreement or throughIslamic law. However, not all problemscan be settled at village level however.There have been some cases that had tobe taken to sub-district level.255

This village suffered an indirect impact ofthe conflict. Several times GAM membersentered the village and even approached thekeucik. There are widows from the conflict.There is a police officer’s widow who to thisday does not know where her husband isburied; there is another widow whose husbandwas a member of GAM. Both the policeman’swidow and the GAM widow are on goodterms with each other.


The population consists of 600 males and334 females, or 570 family households. Themajority are Acehnese while the rest areJavanese. The village was heavily affected bythe tsunami with the population beingdisplaced and homes destroyed. Most villagerecords were destroyed. The majority of thepopulation is fishermen and now lives asdisplaced persons scattered in several locationsinside and outside of the village. Many ofthe fishermen are known to be l ivingtemporarily in barracks but they agree thatthey will one day return to their homes.Before the tsunami the traditional villageinstitutions such as tuha peut and tuha lapan

were functioning well. The function oftraditional institutions is to prevent improperor indecent acts. However, after the tsunami,the tuha peut/lapan have only been in placefor a few months and do not yet functionproperly. There has not been enough time toarrange a meeting between the membersbecause each is busy with their daily activities.So far the villagers have more frequent contactwith the kepala lorong rather than the keucik;because the keucik usually resides in anotherlocation.

The process of reconstructing the village hasbegun. The village apparatus is making effortsto straighten up and improve the villagegovernment. Assistance is not evenlydistributed, which has given rise to tensionsamong villagers. The population’s economyis still in the early stage of recovery. Somefishermen in the village have received smallboats provided by NGOs, but others in thevillage have not yet received such assistanceand are asking for boats. For those that arenot fishermen some have received housingreconstruction assistance provided byan NGO. There is also a problem with landclaims. People admit that the land theyoccupied was officially state owned landand that the villagers did not have landownership certificates. They believed thattheir traditional land ownership claims wouldbe recognized by the state and thereforecertificates were not sought in the past. Now,the only proof of ownership held by villagersare certificates for land clearing and land taxdocuments (i.e., receipts of payments to thegovernment), but these were lost when thevillage was hit by the tsunami.

159

Appendix 2

255 The A2J team noted two examples of land dispute cases in the area.


160

Appendix 2

Appendix 3Matrix: Institutional Obstacles for Duty-Bearers

162

Appendix 3


Appendix 3 – Matrix: Institutional Obstacles for Duty-Bearers

163

Appendix 3

· Lack of awareness of a human rights based approach to justice.· Adat law recognizes verbal divorce, whereas National Law does not, thus creating

legal uncertainty for women.· Confused jurisdictions and inconsistencies between Adat, National Law, Syariah

law, and human right standards.· Different interpretations of Adat fuel ethnic cleavages.

· Overall decision-making processes are easily manipulated by outside actors.· Strong kinship networks undermining fair decision-making.

· Duty-bearers typically drawn from powerful village families.· No skills training provided.· Unclear decision-making jurisdictions between village leaders.

· Oral tradition passed down from generation to generation. No resourcesregarding Adat system, procedures or decision-making.

· No legal resources regarding domestic violence, or any other legislation.· Primary source of information are Keucik, Camat, and Mukim.

· Village governance structures fragmented or destroyed following the tsunami.· Governance structures in conflict affected areas fragmented or dysfunctional.· Poor case handling and data recording systems (e.g., evidentiary materials).

· Limited awareness regarding criminal nature of domestic violence.· Confusion over legal jurisdictions arising from competing normative legal frameworks.· Village authorities do not actively disseminate information on laws. As a

result, villagers are not aware of their rights under National Law or Syariahlaw or how to access formal justice mechanisms.

· Domestic Violence - Most informal justice system duty-bearers believe thatdomestic violence is an internal family matter.

· Mukim, Camat, and Keucik focus on resolving conflict and preserving harmony.Taking cases of domestic violence outside the village is considered ‘taboo’.Decision-making influenced by more powerful members of the community.Disadvantaged groups at village level are given little, if any, voice in disputeresolution processes.

TABLE 27: ADAT - CAPACITY WEAKNESSES UNDERMINING ACCESS TO JUSTICE

S y s t e m / R e g u l a t o r y

Or gan iza t i ona l

Legal RegulatoryEnvironment

Independence

Human Resources

InformationResources

Infrastructure

I n d i v i d u a l

Knowledge andSkills

Behaviour / Attitude

Management andAccountability

· Weak administrative structures, poor management procedures.· No accountability to public or government authorities.

Using a UNDP capacity developmentassessment matrix as an analytical guidethis section presents a series of matricessummarizing key institutional obstacles

encountered by duty-bearers within formaland informal justice systems to promotingcommunity access to justice.


164

Appendix 3

· Lack of awareness of a rights based approach to justice.· Lack of coordination with formal justice system actors.· Generally poor coordination with other justice mechanisms.· Unclear guidelines and standards for mediation of disputes Unclear referral system

with formal courts for mediating disputes.

· Unclear.

· Insufficient administrative support personnel.· Mukims typically old and lack enthusiasm.· Lack of training regarding administrative matters.· No personnel in place in some locations.

· Weak or non-existent, lack of legal information and limited reference materials.· Poor legal and mediation training.

· Lack of office furniture and equipment. Lack of communication equipment suchas telephones, stationery.

· In some research sites Mukim structures are not functioning at all.· Mukim offices geographically inaccessible for disadvantaged groups.· Village governance structures poorly resourced to deal with administrative matters.

· Do not actively disseminate information on laws.· Capacity varies greatly.

· Focus on harmony rather than individual rights.· Post-conflict trauma and lingering security concerns undermining mediation roles.

TABLE 28: JUSTICE AUXILIARIES (E.G. CAMAT, KUA, ETC.) - CAPACITYWEAKNESSES UNDERMINING ACCESS TO JUSTICE




Independence

Human Resources


Infrastructure

I n d i v i d u a l

Knowledge andSkills

Behaviour /Attitude


· Weak case management systems.· Limited accountability to the public No evaluation processes for performance.


165

Appendix 3

· Confus ion over jur i sd ict ions between c iv i l and cr imina l matters.· Poor understanding of human rights based approach to law enforcement.· Some SOPs contradict principles of community policing and a human rights

based approach to policing.· Lingering uncertainty about police and military roles in civilian policing.· Awkward d iv i s ion of po l i c ing funct ions be tween Syar i ah po l i ce

upholding rel ig ious law and organic pol ice upholding secular law.

· Unclear.

· Insufficient personnel.· Insufficient ongoing training for personnel.· Insufficient funding to support training of personnel.· Police personnel underpaid.· Lack of administrative support personnel.

· SOPs inconsistent with community policing approach.· Weak reporting mechanisms for community members with justice grievances.· Legal awareness activities currently implemented focus on “harmony”

rather than a rights based approach for citizens.

· Shortage of accommodation, equipment (cars, radios, office equipment).· Insufficient housing facilities for police personnel.· Poor reporting mechanisms for community members with grievances.· Poor case fi l ing systems and recording of non-criminal grievances.· Emphasis on mediating village disputes prevents access to justice for disad-

vantaged community members.· Poor detention facilities for detainees.· Limited training in non-violent crowd control techniques.· Insufficient equipment for non-lethal crowd control.

· Sporadic human rights training programs.· Training focuses on field tasks and operations.· Insufficient training regarding gender based violence.· Careless handling of firearms.· In some districts there are language barriers with local populations that do not

speak Bahasa Indonesia.

· Endemic practices of petty corruption by police personnel.· Limited understanding of community policing.· Lingering conflict mentality among some police officers.· Police officers known to suffer from conflict induced psychological trauma.· Reported that some officers still discriminate against or publicly shame

ex-GAM members.· Many police officers still adopt a ‘culture of force’ in policing duties.· Promotion of harmony over individual rights.· Police morale varies by location.

TABLE 29: POLICE - CAPACITY WEAKNESSES UNDERMINING ACCESS TO JUSTICE




Independence

Human Resources

Infor mat ionResources

Infrastructure andprocedures

I n d i v i d u a l

Knowledge andSkills



· Weak civilian oversight.· Internal oversight mechanisms lacking strong deterrent capabilities for

preventing misconduct among rank and file officers.· Lack of public transparency in procurement, budgetary allocations, and

operational costs.


166

Appendix 3

· Lack of awareness of a human rights based approach to justice.· Lack of coordination with formal justice system actors.· Generally poor coordination with other justice mechanisms.· Outdated rules of evidence.· Confusion over normative legal framework (National Law, Human Rights,

Adat, and Syariah law).· Confusion over jurisdictions regarding civil and criminal cases with Adat

and Syariah Courts.

· Unclear.

· Insufficient administrative support personnel.· Low pay for all court personnel.· Insufficient number of lawyers to represent defendants.· Courts do not have interpreters to accommodate non-Indonesian speaking

claim-holders and defendants.

· Lack of legal information and limited reference materials, poor legaleducation, inconsistent law development and application resulting, inpart due to jurisdictional confusion.

· Limited legal information and reference materials (law reports, law gazettesand other information).

· Insufficient legal awareness raising programs for the community.

· Lack of office furniture and equipment. Lack of communication equipmentsuch as telephones, stationery.

· Insufficient number of courts. Insufficient number of detention facilities.· Geographically inaccessible for many villagers.· Lack of witness protection.· No interpreters available for non-Indonesian speaking claim-holders or

defendants.· Inability to summon witnesses to court.

· Administrative support personnel lacking sufficient training.· Inadequate continuing legal education for all personnel (judges, lawyers, clerks).· No training to deal with post-conflict issues (i.e., sensitivity).· No formalized human rights training for court personnel.· Insufficient funding for training programs.· No judges with mediation certificates.· No specialized training provided to deal with issues arising from conflict

and the tsunami.

· Corruption, bureaucratic attitudes, sometimes arrogant.· Discriminatory practices against some groups.· Lack of political will to openly acknowledge problems with the justice

system (i.e., harmony of divisiveness).· Cultural and linguistic barriers with the local population.

TABLE 30: GENERAL COURTS - CAPACITY WEAKNESSES UNDERMINING ACCESSTO JUSTICE




Independence

Human Resources


Infrastructure andprocedures

I n d i v i d u a l

Knowledge andSkills



· Weak case management systems.· Limited accountability to the public.· Bureaucratic and complicated systems and procedures.· Weak internal oversight and evaluation systems.· No accurate data on judicial corruption available.· Weak external review mechanisms.


167

Appendix 3

· Discriminatory laws against non-Muslim women (i.e., Marriage Act Law 1/1974).· Poor coordination with General Courts. Conflicting jurisdictions and competition.· Conflicts with Adat law regarding inheritance rights for women.· No guidelines for confiscating or destroying evidence.· Vague code of ethics for Syariah Court judges.

· Unclear. Signs of influence from conservative Islamic forces found inthe Ulama council and national level Islamic organizations.

· Weak. Insufficient administrative support personnel.

· Insufficient legal information resources (law reports, law gazettes andother information for judges).

· Insufficient funds and equipment to conduct legal awareness raisingactivities for community members.

· No detention facilities. Poorly resourced court facilities.· Lack of modern case management systems (e.g., computers/filing systems).· Limited accessibility to rural villagers.

· Administrative support personnel poorly trained.· No training for human rights or sensitivity training for post-conflict case

handling.

· Overly bureaucratic, duty-bearers uncertain about jurisdiction role and appro-priate application of Syariah law.

· Administrative support personnel reported in some instances to be arro-gant with claim-holders.

TABLE 31: SYARIAH COURTS - CAPACITY WEAKNESSES UNDERMINING ACCESSTO JUSTICE




Independence

Human Resources


Infrastructure

I n d i v i d u a l

Knowledge andSkills



· Poor management and weak public accountability.· No external oversight of Syariah Court judges or evaluations of decision - making.

t


168

Appendix 3

· Confusion over case handling and jurisdictions between Syariah and GeneralCourts.

· Procedural law not regulated in Qanun makes it possible that lower levelregulations will override higher level regulations.t

· Unclear

· Low salaries.· Insufficient number of personnel and administrative support personnel.· No female prosecutors in some districts.

· Inadequate legal resources.· Limited human rights training for prosecutors.

· Insufficient infrastructure and poor case filing systems.· Prosecutors offices generally inaccessible for most villagers (distance or

terrain).· Prosecutors and their families are vulnerable to intimidation and threats

from segments of Acehnese society.· Lack of operational funds for the execution of court decisions.· Insufficient detention facilities.

· Cases of cultural and linguistic barriers with local populations in differentdistricts.

· Indications that corruption remains a problem among prosecutors.· Prosecutors sometimes ar rogant and unwil l ing to suppor t vict ims,

particularly in regards to female victims of domestic violence or rape.· Post-conflict security concerns remain a factor undermining service delivery.

TABLE 32: PROSECUTORS - CAPACITY WEAKNESSES UNDERMINING ACCESSTO JUSTICE




Independence

Human Resources


Infrastructure

I n d i v i d u a l

Knowledge andSkills



· Weak public accountability and civilian oversight.· Imprecise criminal handling procedures for detainees suspected of violating Qanun.


169

Appendix 3

· Confusion over legal framework is undermining the introduction of‘minimum standards’ for the enforcement of Qanun.

· Political and religious sensitivities preventing the resolution of regulatoryproblems.

· WH personnel using civilian powers of ‘citizens arrest’ granted underNational Law (Criminal Code) to empower themselves as a state institutionenforcing Syariah law.

· Legal uncertainty about procedural law.· No clear protection guidelines in place for individuals arrested by WH.

Heavily influenced by Islamic religious leaders.

· Lack of administrative support personnel.· Lack of training for personnel.· No skills training regarding human rights standards and the rights of citizens

under National Law or the Constitution.· WH not recognized as civil servants, not receiving government salaries.· Inadequate experience.

· Lack of information resources/limited literature.· Insufficient funding for training programs or legal awareness raising.

· No vehicles to conduct patrolling.· No communication equipment.· No office facilities.

· Personnel confused about their own functions and roles.· No standard operating procedures for enforcement functions of WH.· No standardized criteria for what constitutes a violat ion of Qanun ,

particularly in relation to women. Highly subjective and open to abuseby duty-bearers.

· Aggressive enforcement practices violating human rights standards andConstitutional rights of women, resulting in excessive arrests of women.

· Personnel consider themselves enforcers of Islamic law and enforcers ofcorrect moral conduct and behaviour of other Indonesian cit izens.

· Discriminatory attitudes towards non-Muslim groups.· Non-Muslim women sometimes intimidated or harassed by WH regarding

“inappropriate” behaviour or dress.

TABLE 33: WILAYATUL HISBAH - CAPACITY WEAKNESSES UNDERMINING ACCESSTO JUSTICE




Independence

Human Resources


Infrastructure

I n d i v i d u a l

Knowledge andSkills



· Weak management procedures.· No public accountability or civilian oversight.


170

Appendix 3

· No data.

· Insufficient facilities to house suspects· Lack of operational funds for to provide food and other care for detainees· Lack of vehicles for transporting suspects under detention

TABLE 34: PRISONS - CAPACITY WEAKNESSES UNDERMINING ACCESSTO JUSTICE




Independence

Infrastructure

Human Resources


I n d i v i d u a l

Knowledge andSkills

Behaviour /Attitude

Management andAccountability · No data.

· No data.

· No data.

· No data.

· No data.

· No data.

Appendix 4A Discussion of Horizontal and Vertical Conflicts


172

Appendix 4


Although a simplification of complex theories,vertical and horizontal conflicts are definedat a macro-political level here with verticalconflicts considered as conflicts betweenlocal groups and the state; whereas horizontalconflicts are considered as conflicts betweendifferent groups in society that can transforminto vertical conflicts with the state.256 Thisis done in order to identify social cleavagesin village assessment sites that can give riseto new patterns of violent conflict and thatcan undermine the peace process, communityaccess to justice and strengthening the ruleof law. The principal difference between thetwo conflict patterns is the nature of powerstruggles underpinning both. For example,unequal power hierarchies are unstable,ambiguous, reversible, and prone to “evasionand modification”.257 These hierarchies canexist at village level and extend upwards tothe state level. This makes hierarchical powerstructures different from systems of statedomination involving asymmetrical powerrelationships among social groups in whichminorities have little room to manoeuvre orexercise liberty,258 and in which local patternsof domination are linked to state systems ofdomination. In hierarchical systems, althoughgiving rise to power struggles between unequalsocial groups, contests for power can bereversed through peacefu l means byindividuals that enjoy equal citizenshiprights under the law.259 On the other hand,asymmetric power struggles that occur insystems of domination can give rise to “zero-sum” for ms of compet i t ion between

“dissimilar parties”, or between majorityand minor i ty g roups, w i th minor i tyg roups seeking socia l t ransfor mat ionthrough violent methods.260 At a macro-political level then the term asymmetricalconflict is used here to describe conflictsbetween local groups that oppose a politicalsystem (vertical conflicts), whereas the termsymmetrical conflict is used to describestr ug gles between loca l g roups in ahierarchical system that can be changedby groups of unequal power but with equalcitizenship rights (horizontal conflicts).Achieving the latter is dependent uponinstitutional reforms that ensure equal rightsand protections for all citizens within a state.

Dangers for v io lent hor izonta l andvertical conflicts also exist with “ad hoc”reconciliation attempts being made by ex-militia and ex-GAM combatants in ethnicallyhomogenous Acehnese villages. Althoughnot confronting obstacles due to ethnicityor re l ig ious d i f ference, Vi l l age CA5experiences obstacles with building socialcohesion. This is due to lingering politicalmistrust and past violence committed by bothgroups. Divisions are compounded bysignificant economic disparities between ex-militia members that are better off than ex-GAM combatants; the latter have yet toreceive any livelihood assistance from theGoI or donors. Feelings of economic injustice,particularly acute among ex-GAM combatants,claims of corruption against the villageapparatus and GoI officials, and political

256 In the context of Aceh, Brown points out that “overlapping aspects of vertical, horizontal and spatial inequality…reinforce each other, contributingto the durability of separatist conflict”; Graham Brown, Horizontal Inequalities, Ethnic Separatism, and Violent Conflict, p. 2.

257 Hugh Miall, Oliver Ramsbotham and Tom Woodhouse, Contemporary Conflict Resolution: The prevention, management and transformationof deadly conflicts pp. 101-102.

258 ibid.259 Claude Ake describes the differences between the two as “pathological vertical social cleavages” (hostile exclusive sub-group affiliations) asopposed

to healthy horizontal social articulations (a sense of “nation” and citizenship); see, Claude Ake, Why Humanitarian Emergencies Occur: Insightsfrom the Interface of State, Democracy and Civil Society.

260 Miall et al., Contemporary Conflict Resolution: The prevention, management and transformation of deadly conflicts, pp. 12-13, 22, 189, 203.

173

Appendix 4Appendix 4 - A Discussion of Horizontaland Vertical Conflicts


injustice create possible conflict trajec-tories along vertical and horizontal lines.

In Village CA6 the assessment team receivedreports that during the conflict period GAMgroups regularly “raided” other GAM villagestaking food, crops, or livestock.261 It is worthnoting that this information was providedvery cautiously and privately by villagers,whereas in separate questioning ex-GAMFGD respondents denied such acts were evercommitted.262 No action was ever taken toaddress those crimes and villagers remainfearful of seeking resolution (i.e., no sanctionsimposed by informal forums to address justicegrievances). In Village CA1 the assessmentfound an ex-GAM unit that was comprisedof individuals from several villages in onesubdistrict, but that had unclear links withex-GAM units from neighbouring subdistricts.Respondents explicitly asked UNDP assess-ment team members to tell donors not toprovide funds to their leadership because they“cannot be trusted with money, better toprovide funds to an NGO that will help usfor cer ta in .” 2 6 3 Although diff icul t todetermine precise factional divisions giventhe secretive nature of ex-GAM combatants,

the World Bank identifies three groupings:moderates, ideological revolutionaries andyounger criminal elements that joined after1998.264 Possible sources of conflict amongthese groups arise from unequal aid distribu-tion, economic and political grievance, per-ceptions of leadership corruption, and inter-village competition for natural resources. Theinability of local justice forums to addresssuch tensions or resolve justice grievancescan result in violent criminality amongex-GAM combatants, inter-village conflictsbetween ex-GAM groups, or conflict bet-ween local ex-GAM groups and the GoI.

Other dangers of horizontal conflicts betweendifferent groups at village level spring froma failure to resolve justice grievances arisingfrom unequal aid distribution and claimsof corruption (i .e. , hierarchical powerimbalances potentially leading to violenthorizontal conf l icts within vi l lages orbetween villages). However, these types ofconflicts are less likely to be underpinnedby political, religious or cultural grievancesthat can lead to vertical conflict with eitherthe provincial government or the GoI.

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261 FGD, Widows of Conflict, 27 January 2006, Village CA6, Aceh Utara. These sorts of actions are usually attributed to the need of GAMcombatants to “survive” during the conflict period. However, they can also be considered a form of natural resource competition that can re-emerge in the post-conflict period.

262 FGD, ex-GAM Combatants, 24 January 2006, Village CA6, Aceh Utara. On the other hand, an ex-GAM commander openly admits that therewere “good and bad GAM”; Interview, ex-GAM Commander, 22 January 2006, Village CA5, Aceh Utara.

263 FGD, ex-GAM Combatants, 18 February 2006, Village TA1, Aceh Barat.264 Barron, Clark, Daud, Conflict and Recovery in Aceh: An Assessment of Conflict Dynamics and Options for Supporting the Peace Process (World

Bank: Decentralisation Support Facility), p. 24. The younger and more hostile groups relative to older ex-combatants are sometimes referredto as the “invisible youth”; Christine Susanna Tjhin, Post Tsunami Reconstruction and Peace Building in Aceh: Political Impacts and PotentialRisks (Jakar ta :Centre for Strategic and Internat ional Studies, October 2005) http://www.cs is.or. id/papers/w ps053.

Appendix 5Methodology, Research Phases and Site Selection


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Appendix 5


During the assessment planning stage,it was decided that the research team shouldfocus upon several thematic issues thatappeared in earlier assessments as priorityareas. These include land, property, guardian-ship and inheritance, as well as on theimplications of the MoU on the justice sectorand the attendant potential areas of support.In addition to this, the research team wasass igned the fo l lowing set of tasks :

• To assess the impact of the tsunami andthe conflict on the formal and informaljust ice systems in selected areas;

• To understand the implications of theMoU for the justice system and identifypriority areas of support to strengthenthe peace building and recovery process;

• To identify the key factors obstructingaccess to justice at the community level;

• To understand the role of formal andinfor ma l jus t i ce sys tems a t thecommunity level;

• To understand the experience ofdifferent providers of justice-relatedservices (such as judges, prosecutors,lawyers, police, traditional leaders andcivil society organisations), and the usersof the justice system, what specificchallenges and obstacles they face toensure/access justice remedies, particu-larly for poor and vulnerable groups,what type of strategies they havedeveloped to access justice, and whattype of factors influence their successor failure; and,

• To provide recommendations on priority areas to strengthen access to justice in the province and possible strategies to

employ.

Stage One: Recruitment and Trainingof Researchers

Recruitment was conducted by UNDP andpartner organizations between November andDecember 2005. Recr ui tment soughta gender balance within the team as well asa balance between technical and academicskills. Additionally, emphasis was placed onresearchers with Acehnese language skills.Between 3 and 17 January, 2006, the researchteam underwent a training and piloting oftools stage. Technical inputs for the designof the assessment as well as the research toolswere received by two of UNDP’s partnerorganizations (World Bank and IDLO).During this period, the team also createda list of duty-bearers and institutions toincorporate into the assessment based onguidelines and tools provided by UNDP’sJakarta office.

The assessment was carried out by a teamof six field researchers under the directionof a research team leader. Field support forthe team was provided by a Project Develop-ment and Technical Assistance Consultantand an Assessment Coordinator.

Stage Two: Site Selection, VerificationProcess and Identifiction of Disadvan-taged Groups

Geographic scope. In order to address post-tsunami and post-conflict political reconstruc-tion needs, the geographic scope of the as-sessment covered a mix of conflict affectedand tsunami affected districts and municipal-ities (identified by the World Bank and UNDPas priority areas of focus): the districts ofAceh Barat, Pidie, Aceh Utara and Aceh Te-ngah, and the municipality of Banda Aceh.

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Appendix 5Appendix 5 - Methodology, Research Phasesand Site Selection


Sampling Method and Justification. For each dis-trict the team was required to identify twosub-districts, two villages in each of theselected sub-districts, and two sites in BandaAceh (total 18 villages). Selection criteriaincluded: was the village affected by conflictor the tsunami; were there any disputesarising from land, property, guardianship orinheritance claims. In order to identify villagesthat best represented the sets of thematicissues to be investigated, a purposive /theoretical sampling method was usedto ident ify sub-distr icts and vi l lages.This is a method by which,

[ I ]n t e r v i ews a re conduc ted w i threpresentatives of each category, stake-holder, or socio-economic group of inter-est to the objective of the study, but with-out random selection of the particularsubjects who are studied in each group.265

Groups and sites selected can be representa-tive of problems confronting groups in asociety more broadly. Nevertheless, the gen-eral izations that are made need to betreated as “guidelines” about the types ofisues/dynamics one wil l encounter inthe field, the details of which can be subjectto regional variations. Even considering thiscaveat sufficient scope exists for donorsand aid agencies to design interventions ina manner that will ensure maximum relevanceto the local context, thus minimizing thedanger that a project will need to be entirelyredesigned after it has been launched.

Sub-district site selection began with inputsfrom team members. This was followed by astakeholder meeting with groups at provin-cial level. At district level, the team receivedfurther inputs from several groups in each

district so as to identify villages for the as-sessment. One “control” village was intro-duced into the assessment in order to establishthe extent to which findings could be morebroadly applied or what different types ofproblems might exist in villages that did notmatch our selection criteria. At each stage ofthe site selection process the team conducteda verification process of the thematic researchissues identified as priorities. This allowedscope for the investigation of other issuesthat may have been more pressing grievancesconfronting members of the community.

In order to complete the assignment ina manner consistent with empoweringpeople, the team used participatory methodsto bring out illustrative voices of poorand other disadvantaged and vulnerableindividuals. Similar methods were used tosol ic i t the v iews of lawyers, judges,community leaders, prosecutors, policeand NGOs. Research methods included :

• Piloting and refinement of access tojustice related research tools;

• Desk review of relevant laws and regula-tions, official statistics and selected lite-rature and reports examining the impactof conflict on the justice system in Aceh;

• Focus group discussions, in-depth inter-views with users and providers of justiceservices at district and village levels;

• Use of transects, mobility maps and so-ciograms outlining power relationshipswithin villages; and

• Identification and elaboration of illustra-tive case studies to examine specificproblems.

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Appendix 5

265 Michel Bamberger (ed.), Integrating Quantitative and Qualitative Research in Development Projects (Washington: The World Bank, 2000),pp. 10-15.


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Appendix 5

Stage Three: Research of JusticeMechanisms and Obstacles

Between 15 January and 29 February 2006the research team mapped socio-economicsettings, claim-holders and duty-bearers in 18villages, 9 sub-districts, and 4 districts andat the provincial level in Banda Aceh. Theresearch team identified dispute resolutionmechanisms at each administrative level(village, sub-district, district, province), thesource of authority for each (e.g., formal law,custom, informal arrangements) and powers;how the different mechanisms are used andby whom; how well the outcomes of thesemechanisms are enforced; civil and parliamen-tary oversight of these mechanism; and thelevel of integration between the formal andinformal mechanisms. Donor responses invarious justice sectors were also mapped. Atdistrict level the assessment team devotedbetween one to two days canvassing formalsystem actors and conducting NGO mappingexercises. At sub-district and village level theassessment team divided into two sub-teamsmade up of four and five people respectivelyand devoted two days carrying out researchin each of the village assessment sites. Follow-up data collection was conducted duringMarch and the first two weeks of April asdata analysis progressed and in order to fillkey gaps that emerged. In sum, the assessmentteam conducted approximately 250 FGDsand interviews at village, sub-district, districtand provincial level with over 500 respondents.

Research Limitations. The institutional,geographic and thematic scopes of the assess-ment are daunting and, combined with timeand budgetary constraints meant that statisticaldata is sometimes absent from the assessment.For example, the total number of legal aidpractitioners, lawyers or judges is not listedat an aggregate provincial level. Information

on such gaps/needs is often drawn fromqualitative interview data. Moreover, timeconstraints in the field meant that site selectionincluded considerations of accessibility; thusmeaning that only three isolated villages inextremely remote areas are represented in theassessment. Additional constraints revolvearound issues of “community trust” withoutsiders. The assessment team often expend-ed considerable energies to build trust withvillage respondents in order to solicit accuratedata. Issues of mistrust with formal systemjustice actors also proved obstacles in thefield, with some assessment team memberseven accused of being “spies”. Furthermore,even with the trust-building measures attempt-ed by assessment team members, there re-mained highly sensitive political issues thatcommunity members were sometimesreluctant to discuss openly. Related to thelarge scope of the assessment, constraints arealso drawn from the number of questionsteam members were required to ask respond-ents, and the time respondents could devoteto the assessment; meaning that on numerousoccasions not all relevant questions weredelivered and answered in the FGDs andinterviews. Another constraint is found withthe nature of the assessment and the researchquestions that potentially skewed the fieldworkin favour of formal institutional structuresat the expense of “community”. This lastobstacle was addressed through the assess-ment team’s site selection and verificationprocess of issues to investigate, which soughtto ensure that the issues investigated are thosethat community members feel are their mostserious problems and obstacles for accessingjustice, as opposed to investigating justiceissues identified by outside “experts”.

Irrespective of the listed constraints, thisassessment identifies key problems andobstacles to community access to justice


Province District Sub-district VillageGovernor’s OfficeBupati OfficeCamat OfficeHouse of RepresentativesGeneral CourtSyariah CourtPublic ProsecutionPoliceWilayatul HisbahImam MukimGeuchikAdat operatorsPlanning boardDinas Syariat IslamLand Office (BPN)Women’s Empowerment BureauDinas SocialReligious Affairs Office (KUA)Acehnese Adat Council (MAA)Ulamas’ Consultative Council (MPU)Civil Society OrganizationsCommunity membersDonor agencies/INGOs

with accurate input from community mem-bers.This provides important findings andrecommendations that will contribute to ad-dressing justice issues arising from tsunamireconstruction and the post-conflict peacebuilding process. Table 35 lists the typesof justice system actors and civil societyg r o u p s t h a t we r e i nvo l ve d i n t h eassessment and the administrative levelsat which the assessment was conducted.

Stage Four: Analysis and ReportWriting

Analys i s and repor t wr i t ing for theassessment was completed between Marchand May 2006. In March the assessmentteam presented preliminary findings ata workshop held at the Europe House locatedin Banda Aceh. The presentation sought

to promote par t icipatory inputs fromattendants that included representativesfrom the provincial government, fromthe Indonesian Supreme Court, from CivilSociety groups, and from several inter-national agencies engaged with justicesector reform. The workshop led to theiden t i f i c a t i on o f add i t i ona l j u s t i c egrievances and obstacles for communityaccess to justice, as well as innovativerecommendations on how to promotecommunity access to justice that weresubsequently incorporated into UNDP’sAccess to Justice for Peace and Develop-ment in Aceh Project Document. Duringthe assessment writ ing stage valuablecontributions were also made by two ofUNDP’s par tner organizations (IDLOand the World Bank) to the analysis offormal and informal legal mechanisms.

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Appendix 5

TABLE 35: INTERVIEWS WERE CONDUCTED WITH THE FOLLOWING PEOPLE ANDINSTITUTIONS :

Executive

LegislativeFormal

Informal

Auxillary

Civil Society

Other

Documents

UNDP Access to Justice in Aceh