Subject: Sa'he Study Club Criticism of the Autonomy Plan
Date: Sat, 12 Jun 1999 10:44:06 -0400
From: raimata@indo.net.id

CRITICAL NOTES ON JAKARTA’S PROPOSAL FOR A SPECIAL AUTONOMOUS REGION OF EAST TIMOR (SARET)

This document was written after a lengthy discussion held by Sa’he Study Club (SSC) in Jakarta on May 8, 1999. SSC is a study group consisting of East Timorese and Indonesian pro-democracy activists. We intend to trace the origins of various thoughts on nationalism in Timor Leste. Contact persons for SSC: Nuno Rodriguez and Aderito de Jesus Soares. E-mail: sahe_s_club@hotmail.com; telp/fax: 62-21-791-925-64


Introduction

After 16 years of negotiations on the problem of Timor Leste, Portugal, Indonesia and the United Nations signed an agreement on May 5, 1999. They agreed to hold a vote, called a “popular consultation,” in Timor Leste on August 8, 1999. The East Timorese have waged a long and exhausting struggle for the past 23 years. Now, they are expected to determine their fate on one day. Under this “popular consultation,” the people of Timor Leste will be given the choice of either accepting or rejecting the Republic of Indonesia’s offer of creating a Special Autonomous Region of East Timor (SARET). If they accept it, East Timor will remain under Indonesian sovereignty; if they reject it, they will begin a transitional period toward full independence.[1]

There have been various reactions to this May 5 agreement. Among the East Timorese who support continued Indonesian sovereignty, two views prevail. One group believes that the SARET plan does not offer the East Timorese any substantial advantage. In their view, the SARET plan, if implemented, would not lead to better conditions in Timor Leste; if fact, it might make conditions worse. Even though they are not in full support of the agreement, this group faces a dilemma. They wish to remain citizens of Indonesia but Indonesia is not offering them an acceptable form of citizenship. They are opposed to the “popular consultation” but do not have the power to stop it.

The second group among the pro-integrationists blindly supports the SARET plan without fully understanding the contents and consequences of it; some of them perhaps feel intimidated into supporting it.

Those who support independence for Timor Leste reject the SARET proposal.

If the East Timorese accept the SARET plan, there will likely be an important, yet not widely recognized, consequence: the East Timor issue will be removed from the UN agenda. The UN will presume the East Timor case to be resolved and will be able to strike it from the list of those territories that have not yet exercised an act of self-determination.

What is the SARET plan? After careful examination, the Sa’he Study Club (SSC) has arrived at a very critical perspective about the plan. We find that there are many vague clauses that permit the Central Government of the Republic of Indonesia to intervene in matters that are supposed to be under the authority of the SARET Government. It is clear to us that the Central Government will have the authority to regulate not just foreign relations, external defense and finance; it will have the right to control all aspects of the SARET Government.[2]

When we look at the existing Indonesian laws that regulate Provincial Governments -- the old law (Law No. 7/1974), the new one, and the proposed bill for regulating the Budget Balance between the Central and Provincial Government we find no substantial difference between these laws and the SARET plan offered to the East Timorese. It is important to mention that many Indonesian legal experts believe that the new laws regarding the relationship between the Central and Provincial Government are more conservative than the old ones. Therefore, it can be assumed that the SARET plan offers nothing but the same under a new name; its content is identical with what is offered to other provinces in Indonesia under the new Law of Provincial Government.

II. SARET Concept as the Final Trap

The following sections will examine several important articles out of the 59 articles within the document.

PART I

FOREIGN RELATIONS In Chapter I, article 1, the document states, “The Indonesian Government, hereinafter, referred to as the Central Government, shall have responsibility for and competence over the foreign affairs of the Special Autonomous Region of East Timor (SARET). It shall consult the Government of the SARET for the purpose of taking into account the views of the Government of the SARET on issues of particular relevance to the SARET."

This regulation clearly has the consequence that all matters related to foreign affairs will become the responsibility of the Central Government in Jakarta. The Central Government will represent the Government of the SARET on all international affairs. One possible consequence of this regulation, for example, is that the East Timorese who receive pensions from the Government of Portugal will not receive them anymore.

EXTERNAL DEFENSE At a glance, articles 2, 3 and 4 appear to merely regulate the authority of the Central Government regarding the external defense of East Timor. Yet, if we take a closer look, the Central Government will also be responsible for internal security operations within SARET. As is stated in article 2, “The Central Government shall have responsibility for and competence over the external defence of the SARET, as part of the territory of the unitary state of the Republic of Indonesia.”

Central Government intervention into the internal defense is affirmed in article 3, “For such purpose, the Indonesian armed forces (Tentara Nasional Indonesia - TNI) shall maintain a military presence in the SARET in the context of defending and safeguarding the external security of the SARET.” The TNI will maintain a military base within the SARET territory and whenever there is a threat on the territory from outside forces, the TNI has the authority to expand its forces throughout the SARET. This is mentioned in article 4, “In the event of an external armed attack, or an imminent threat of such an attack, the Indonesian armed forces (TNI) may be deployed outside their bases or normal areas of operation in the exercise of its duty to defend the sovereignty and territorial integrity of the unitary state of the Republic of Indonesia.”

Who has the right to determine whether SARET is under a threat? What is the criteria to decide what constitutes an emergency condition? According to the Indonesian Constitution of 1945 -- which is stipulated as the major point of reference for the Government of the SARET -- the president of the Republic of Indonesia has the right to declare a state of emergency. Thus, the president of the Central Government can declare a state of emergency at any time and allow the TNI to launch operations beyond its designated base. Under the pretext of maintaining the security of the region, the TNI can form para-military units as it has done for the past 23 years. The fact that the TNI still operates under the doctrine of Dual Function means that the TNI can easily justify extensive involvement in the internal politics of SARET.

In article 51, we find that the Central Government has license to involve itself in the police force of SARET: “In the performance of its duties, the Police Force of the SARET shall consult and cooperate with the Central Government authorities with respect to the enforcement of Indonesian national laws in the SARET.” The possibility of direct control over the SARET police is mentioned in article 54: “In exceptional cases the Indonesian National Police will assist the Police Force of the SARET in the performance of its functions.” This means that the Indonesian police can intervene in the internal matters of the SARET whenever they consider it necessary.

ECONOMIC AND FISCAL POLICIES Economic and monetary policies designed by SARET will have to be approved by the Central Government. Article 5: “The SARET shall be a part of the Indonesian monetary and customs unit subject to those national monetary and fiscal policies, and laws and regulations of Indonesia which are consistent with this Agreement.” SARET will receive aid from the Central Government, as stated in article 6, “The Central Government will continue its assistance to the development of the SARET.” SARET is also expected to take loans from the Central Government, as article 10 states: “The Government of the SARET can enter into domestic loans to finance part of its budget with the consent of the Regional Council of People's Representatives of the SARET.” The Central Government can easily subvert the economic autonomy of SARET because all foreign aid for SARET will have to go through the Central Government, as stated in article 9: “For the purposes of its overall development, the Government of the SARET may receive foreign assistance which is to be channeled through the Central Government.”

These two latter articles (9 and 10) are identical with article 11 from the proposed new bill on the Budget Balance between Central and Provincial Governments of the Republic of Indonesia which states that: “(1) The Provincial government can receive assistance from inside the country to finance part of its budget plan; (2) The Provincial government can receive foreign assistance with the agreement from the Central Government.” It is clear here that the SARET concept in principle is not different from the concept of the Provincial Government Law and the proposed bill for arranging the budget between the Central and Provincial Governments within the territory of the Republic of Indonesia.

With regards to taxation and natural resources, the Central Government will receive special privileges based on article 7 and 8. Article 7 emphasizes that, “The Central Government shall have exclusive competence over national taxation and the Government of the SARET shall have exclusive competence over Regional taxation, in conformity with the existing laws and regulations.” The consequence of this precept is that SARET can only collect “small” revenues, such as regional retribution taxes, parking taxes, etc., while the big revenues, such as export tariffs, will be collected by the Central Government. Therefore, if the East Timorese produces coffee for export, the revenues from this product will be channeled to the Central Government.

Article 8 which regulates the management of natural resources stresses that, “Natural resources in the SARET, except those considered to be strategic or vital under national laws, shall be under the control of the Government of the SARET. In the exploitation of all natural resources, the Central Government and the Government of the SARET may establish cooperative or joint undertakings.” The problem is who determines which natural resources are strategic and vital? Obviously, according to this article, the Central Government will have the authority to set up the criteria based on the Indonesian national law. Natural resources which before were not categorized as vital can become vital due to the increasing price in the market. Natural resources in Timor Leste, such as oil, uranium, copper, marble, etc. will be controlled by the Central Government, and the SARET government will only be able to glean what is left by the Central Government.

In general, the principles regarding economic, monetary and fiscal matters within the SARET plan are not too different from the “special treatment” granted to Aceh and Yogyakarta during New Order regime. And, again, as they are compared with the statutes proposed in the new bills regulating the relationship between the Central and Provincial Governments, there are no significant differences. What is worse is that all these regulations open the door to corruption. Indonesia itself is still trying to deal with its world-renowned problems of corruption, collusion and nepotism and there is no guarantee that the newly elected government will manage to repair the system in the near future. The SARET Government will be subject to a chronically corrupt Central Government. As such, it can not be expected that the economic situation under SARET will differ from that which has existed for the past 23 years.

CONTINUITY OF INDONESIAN LAWS In legal affairs, the Central Government of Indonesia will be able to intervene in SARET. The SARET Government will be forced to implement all the repressive laws that are used to silence pro-democracy and pro independence activists in Indonesia and East Timor. Article 11 explicitly states that, "Indonesian laws in force upon the date of the entry into force of this Agreement that fall within the competence of the Central Government, as defined in this Chapter, shall remain in force for the SARET." This means that the Indonesian laws that are not based on human rights principles, such as the Criminal Code and other repressive regulations, will become the law for the SARET authority and will be used to oppress the people of Timor Leste.

THE GOVERNMENT OF THE SPECIAL AUTONOMOUS REGION OF EAST TIMOR The Government of SARET will be rigidly "bound" to the Indonesian Constitution. This is evident from article 13, "The powers of the Government of the SARET shall be exercised in accordance with the provisions of this Agreement, and also in accordance with the Constitution of the Republic of Indonesia." The regulation on workers in article 14 (b) gives the impression that workers rights will be respected. Yet, if the SARET authority is expected to implement Indonesian labor law, workers in East Timor will suffer from the same restrictions as Indonesian workers. The Central Government-established Indonesian Trade Union (SPSI) could operate in East Timor and serve as a tool of repression.

JURISDICTIONS OF THE CENTRAL GOVERNMENT AND THE GOVERNMENT OF THE SARET

In accordance with article 15, the Government of the SARET will only have jurisdiction over certain crimes committed within its territory, while other crimes such as treason, terrorism, narcotics, and international crimes are within the jurisdiction of the Central Government. This article gives the Central Government full authority to interpret what activities constitute treason, terrorism, or international crimes. It is possible that certain political activities disapproved by the Central Government can be categorized as treason, terrorism, or international crimes.

PART TWO

EAST TIMORESE IDENTITY AND IMMIGRATION Article 18 states, "The Central Government shall have the power to apply immigration controls on entry into and departure from the SARET of persons who are neither citizens of Indonesia nor have East Timorese identity, pursuant to its authority under Article 1 of this Agreement." This precept clearly allows the Central Government to control who can go in and out of East Timor. It has been common practice in Indonesia to compile a blacklist to prevent certain "dangerous" people from entering Indonesia. This practice would be continued under SARET.

The authority of the Government of the SARET to issue identity cards as it is regulated in article 19 is similar to the function of sub-district authority in Indonesia according to the Law on Provincial Government of Indonesia.

SYMBOLS OF IDENTITY In accordance with article 20, the Government of the SARET can have its own coat of arms but the Indonesian national flag must be flown and the Indonesian national anthem "Indonesia Raya" must be sung in SARET territory. The SARET is not allowed to join international athletic and cultural events using its own name. When non-state entities participate in the events, the SARET may use its own name only with permission from the Central Government.

PART III

POWERS AND INSTITUTIONS OF THE SARET There will be no significant difference between the legislative body of the SARET as it is regulated in articles 22, 23, 24, and 25 and the existing provincial level parliament in East Timor. The role of the legislative body is restricted by the constitution and authority of the Central Government. Article 22 states, "The legislative power of the SARET shall extend to all matters not within the jurisdiction of the Central Government, as defined in Chapter I of Part One. This power shall include, the establishment of political, economic, and social policies in the SARET; cultural and educational matters; designation of a second language or languages in addition to the official language, Bahasa Indonesia …" This is a "rubber article" which can limit the role of the legislative power of the SARET. Even though legislative power of the SARET -- as it would be exercised through the Regional Council of People's Representatives of the SARET -- has the authority to arrange areas such as economy, politics, education, etc, this authority is not independent. The Central Government retains the power to intervene through various judicial mechanisms and this authority is guaranteed in Part I. It can be said that the authority of the legislative body of the SARET is a "pseudo" power.

In Indonesia, the position of the regional parliament has recently improved slightly compared to the one regulated by the old law on regional government. In the previous law, the regional parliament was considered to be an integral part of the executive branch. The new law, however, sharply divides the authority of the regional parliament from the executive branch. Even with this amendment, many people still consider that the role of the provincial parliament in an autonomous area in Indonesia will not undergo major changes. It will be difficult to expect that the legislative power of the SARET will be able to play a significant role because it will be conditioned to obey the rules set by the Central Government.

EXECUTIVE POWERS AND INSTITUTIONS OF THE GOVERNMENT OF THE SARET Candidates for governor must acquire approval from the President of the Republic of Indonesia. As stated in Article 28, "The list of candidates for the post of Governor of the SARET shall first be consulted with and approved by the President of the Republic of Indonesia." While article 29 stresses, "The Governor-elect shall be formally confirmed to the post by the President of the Republic of Indonesia and shall be formally invested before the Regional Council of People's Representatives of the SARET." This regulation is no different from Law No. 7/1974 regarding Provincial Government.

Article 34 item 1 further states, "The names of candidates for the post of Governor and Vice Governor chosen by the Regional Council of People's Representatives shall be consulted with the president to attain his/her approval." Since the very beginning of Indonesia’s rule over Timor Leste, the President of the Republic of Indonesia has had great power to decide who will become the Governor. Under the SARET plan, there will be the opportunity for the Central Government to continue to install puppet governors who will allow it great authority over Timor Leste.

The Governor of SARET will not be under the authority of the Indonesian Ministry of Internal Affairs. The Governor will be directly responsible to the President. Yet, in executing the development programs, the Governor has to establish coordination with the Department of Internal Affairs and other departments. For example, if the SARET government requests foreign assistance, it has to coordinate the request with the related department in accordance with the target of the foreign aid.

JUDICIAL POWERS AND INSTITUTIONS OF THE SARET In the SARET plan, judicial powers are not included under the authority of the Central Government. However, if we examine the mechanism to appoint judges and to declare regulations to be implemented in SARET, even judicial powers are under the authority of the Central Government. For example, the President of the Court of Appeal shall be appointed by the Chief Justice of the Supreme Court of the Republic of Indonesia (Article 41, item 3). The Supreme Court of the Republic of Indonesia is given the right to intervene in the judicial process in SARET. In this context, the judiciary in SARET will be very much influenced by the law and legal system in Indonesia.

SARET will not have its own Supreme Court. Thus, the Supreme Court of the Republic of Indonesia will become the court of final appeal of the SARET as it is explained in article 44, item 1. Besides, there is always a possibility for collusion between the Supreme Court of the Republic of Indonesia and the judges from the Court of Appeal of the SARET if there is a case related to the interpretation of the agreement on the SARET. Article 44 item 2 states, "in all cases concerning the interpretation of this Agreement, provided that the Supreme Court shall establish a special chamber to hear such cases composed of an odd number of judges drawn from the Supreme Court of Indonesia and ad hoc judges drawn from the East Timor Court of Appeal of the SARET." Thus, by analyzing the regulation on judicial powers in the SARET, it can be said that there is no difference in principle between the one proposed in the agreement and the one already contained in Indonesian law (the Basic Laws of Judicial Powers).

PART FOUR

PROMOTION AND PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS Article 46 of the agreement appears to support the promotion of human rights principles. The article, however, does not give a clear explanation about the institution that will implement the principles. For example, there is no mention of sanctions on perpetrators of human rights violations, or of controls from the international community. The article is consistent with what we have mentioned in Part I: the Central Government will be the one body to control and to report on the implementation of the human rights principles in the SARET to the international community since the Central Government is responsible for foreign affairs. The Indonesian government will simply continue to do what it has been doing for the past 23 years.

PART FIVE RELATIONSHIP BETWEEN THE CENTRAL GOVERNMENT AND THE GOVERNMENT OF THE SARET

Article 49 mentions that the Central Government shall appoint a senior official to supervise the Government of the SARET. This article shows that the governor of the SARET will merely serve as a puppet governor. The senior official will supervise the governor in carrying out his/her tasks. This kind of intervention becomes clearer in the regulation of other sectors within the SARET as it is mentioned in article 50, "The Central Government and the Government of the SARET may create bodies or other arrangements to facilitate consultation, cooperation and coordination on such matters as police, tourism, transportation, telecommunications, education, health and the environment."

PART SIX

RELATIONSHIPS BETWEEN THE SPECIAL AUTONOMOUS REGION OF EAST TIMOR AND OTHER ENTITIES The Central Government will have power to intervene in social, cultural, trade, environmental, scientific, tourism and sports activities at the regional and international level. The government of the SARET can regulate the activities but it has to have the consent of the Central Government, as it is mentioned in article 55. This clearly shows that the authority of the Central Government actually spreads beyond the three areas formally mentioned in Part I.

PART SEVEN

THE UNITED NATIONS Article 56 on the role of the United Nations Secretary-General clearly indicates that this SARET plan is an attempt to legalize the integration under a new name.

PART EIGHT

GENERAL PROVISION The special autonomy for East Timor offered by the Indonesian government is actually based on Law of Regional Government, article 18 regarding the formation of Special Regions. Thus, if the East Timorese agree to this SARET plan, East Timor will not have a different political status from other Special Regions within Indonesia such as Aceh and Yogyakarta.

PART NINE

BASIC LAW OF THE SARET Article 58 states, "The SARET shall be governed by a basic law, enacted by the first elected Regional Council of People's Representatives of the SARET and which shall be in accordance with the provisions of this Agreement." The last clause of this article, "in accordance with the provisions of this Agreement," means that the basic law of the SARET has to be in accordance with the authority of the Central Government; the SARET plan has, in its first part, explicitly stated that the Indonesian Constitution and all Indonesian laws will be implemented in SARET. Even if the Regional Council of People's Representatives passes a law of its own for SARET, the Central Government can cancel the law. The Council has very limited authority. It can be seen that SARET will not result in any significant changes from the existing situation.

PART TEN

TRANSITIONAL PROVISIONS If the people of Timor Leste accept this autonomy plan, the United Nations, with the agreement of the Indonesian government, will regulate the SARET during the transition period. The consequence of accepting this agreement is that the problem of East Timor will be finally removed from the UN agenda.

III. CONCLUSION

What has been described above clarifies that the SARET plan is a final trap which will be imposed on the people of East Timor. This concept essentially does not bring any change to the political status of East Timor from the "integration" policy. In general it appears that the authority of the Central Government of the Republic of Indonesia is very limited. Yet, after we peruse and analyze the document we can see that the power of the Central Government is like an octopus roaming all over the sectors of the East Timorese life. Finally, in our opinion this SARET plan is merely an attempt to "legalize" the integration of East Timor which has never had any legitimacy and has been challenged by the people of Timor Leste for 24 years.

SARET = ATTEMPT TO LEGALIZE INTEGRATION

Jakarta, May 8, 1999

End notes:

1. The method of resolving the problem of East Timor through “popular consultation” is different from the methods of decolonization that have been carried out in other countries. For example, in Western Sahara, where the UN is also actively involved, a referendum will be held in December 1999. Western Sahara was initially colonized by Spain, then from 1884 to 1974 by Morocco. The people of Western Sahara formed Frente Polisario as their resistance organization in 1973. In 1991, the UN, Morocco and Frente Polisario agreed on a Peace Plan that provided for the holding of a referendum in Western Sahara. For this purpose, they formed MINURSO (The UN Mission to Carry Out the Referendum in Western Sahara). MINURSO will mobilize about 1,700 peacekeeping forces, 800 police and 300 staff comprised of people from 50 countries. The referendum itself is to find out whether the people of Western Sahara want to be independent or integrated with Morocco. This is obviously different from the ballot for the people of Timor Leste who will only be allowed to vote on Indonesia’s autonomy plan not directly on independence. Moreover, the timetable for the ballot in Timor Leste is much more hurried. It is important to note that the resistance of the East Timorese is much greater than that of the people of West Sahara.

2. In order to talk about autonomy status, Hongkong provides a good example as a comparison. Hongkong, as it is was arranged with the government of the People’s Republic of China, is known as Special Administrative Region (SAR) of Hongkong. SAR Hongkong was formed in accordance with Article 31 of the Chinese Constitution (while the SARET was based on Article 18 Indonesian Constitution). According to SAR, Chinese government only has the authority to deal with foreign relations and defense matters. SAR Hongkong has full authority to regulate almost every other matter, such as the justice and legal system, economic affairs (SAR has its own currency), education system, regional and national tax system, the legislature, full rights in immigration matters, full participation as a separate entity and territory in international organizations such as GATT, Economic and Social Commission for Asia Pacific in the UN and Asian Development Bank. Besides, SAR Hongkong can independently conduct trade agreements with other countries. Such a concept of autonomy is obviously different from the one offered to East Timor through the SARET plan.

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