international experiences of self-determination
TRANSCRIPT
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Autonomy
and
Peace Review
INSTITUTE FOR AUTONOMY AND GOVERNANCE KONRAD-ADENAUER-STIFTUNG
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CONTENTS
Editorial
The Rights and Wrongs of Self-Determination
of Peoples
Speaker Jose de Venecia, Jr.
Sri Lankas Peace ProcessThe Tamil Quest for Self -
determination
Jehan Perera
Thai Constitutional Development: National
Infrastructures for Right to Self-Determination
of PeopleSukree Langputeh
The Struggle for Self-determination in Aceh
Ayesah Abubakar & Kamarulzaman Askandar
European Experiences in Accommodating Ethnic/
National Differences
Gabriel Munuera Vials
Bangsamoro Self-determination
Abhoud Syed M. Lingga
5
7
15
29
43
59
79
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EDITORIAL
[5]
This issue of the Autonomy and Peace Review is a sequel
to the series of papers published in the January-March edition
exploring different models of the right to self-determination ofpeoples. We feature in this issue the papers presented during the
International
Roundtable
Conference on
the Right to
Self-
Determinationof Peoples
which the
Institute for
Autonomy and
Governance and
the Konrad
Adenauer
Foundation organized last July 16-18, 2007 at the Asian Instituteof Management Conference Center, Makati City.
The roundtable conference brought together academics
and practitioners on models of self-determination from countries
which are confronted with similar demands for recognition and
assertion of the right to self-determination by minority groups
Editor ial Board
Benedicto R. Bacani
Executive Director
Institute for Autonomy
and Governance
Eliseo R.
Mercado Jr., OMI
Senior Policy Adviser
IAG
Zainudin Malang
Executive DirectorMoro Law and Policy
Center
Amina Rasul
ConvenorPhilippine Council for
Islam and Democracy
Suharto Ambolodto
Executive Director
Institute for Strategic
Initiatives
Klaus Preschle
Country RepresentativeKonrad-Adenauer-
Stiftung
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within their
borders. It
fostered better
understanding of
the claim for self-determination of
the Moro people
and other
indigenous
groups in the
Philippines. The
proceedings also
informed currentprocesses
shaping the
structures and
policies for the
meaningful
exercise of Moro
self-determination at
present and in the
future.
It is
hoped that by
continuing our
discourse on self-determination
cases in Aceh,
South Sudan,
South Thailand,
Sri Lanka as well
as models for
accommodating ethnic and nationalist differences in European
countries, we would be able to formulate meaningful yet viableformula for Moro self-determination in the southern Philippines.
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[7]
IM PLEASEDAND HONOREDTO ADD MY
WELCOME to those already expressed here for all the participants
in this International Round-Table Conference on the Right to Self-
Determination of Peoples, sponsored by the Konrad Adenauer
Stiftung and the Institute for Autonomy and Governance.
The Changed Concept of Self-determination
THE CONCEPT OF SELF-DETERMINATION has
changed a great deal since the end of the colonial period a generation
ago.
During the age of empires, self-determination was the
battle-cry of the colonial peoples of Asia and Africa.
To our independence generation, self-determination was the
process by which a country determined its own statehoodand
formed its own allegiances and government.
Self-determination to our fathers meant liberation from
foreign rule.
Self-determination meant politicalfreedom.
But now that the age of colonialism is over, self-
determination has acquired a new connotation.
In our time, it has become re-defined as the process by which
The Rights and Wrongs of
Self-Determination of Peoples
Speaker Jose de Venecia, Jr.
House of Representatives
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a community within a state controls its own communal life.
Self-determination has become a sub-nationalinstead
of a nationalidea.
The Minoritys Right to Self-determination Diminishes the
Majoritys Sense of the Nation
As a PHILOSOPHICAL IDEA, the concept of self-
determination for distinct peoples continues to be widely
accepted.
But in practice, self-determination for distinct communitiesliving within a larger national unit is difficult to organizeif only
because peoples are very seldom, if ever, neatly divided into discrete
nations occupying well defined territories.
States populated by only one distinct nationality are
difficultif not impossibleto find.
So that while movements for self-determination may be
widespread, they also face just as widespread opposition from
majority populations.
And its easy to understand why.
Because the complete satisfaction of a minority peoples
right to self-determination inevitably diminishes not only themajority peoples economic and political power but also offends its
sense of nationality and territorial integrity as well.
Movements for Self-determinationand the Opposition to them
Both Widespread
WHY ARE MOVEMENTS for self-determination so
widespread in our time?
The breakdown of the colonial empires has sharpened
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divisions of ethnicity, language, religion, and even of relative
economic or political power among peoples in the pluralist societies
of the developing world.
And minority peoples in every pluralist state tend naturally
to cling to their culture, language, lifeways, religion, - to any
characteristics that differentiates them and make them distinct.
Meanwhile, the majority people seeks to assimilateto
integrateto incorporatethe minority peoples into the national
communityunder its leadership. Alternatively it rejects, neglects,
or oppresses the minority peoples.
Typically, situations like this leads ultimately to conflict.
In plural societies such as Yugoslavia, movements for self-
determination (as in Bosnia-Herzegovina) can be so intense as to
produce large-scale atrocities euphemistically called ethnic
cleansing.
This is also true in many parts of Africanotably in Darfur
(Somalia) and in Rwanda- Urundi.
Even the civil war in Iraqwhich the American invasion
has set offis in many ways motivated by movements of self-
determination among its peopleswho are divided religiously and
ethnically into Shiites, Sunnis and Kurds.
The Limits of Self-determination
FOR THESE REASON, national leadership in the new
countries take local movements for self-determination very seriously
indeedsince extremist claims to autonomy can lead so easily into
separatistconflicts.
In factas you knowwe have conflicts of this kind in
Aceh and East Timor in Indonesia; in Pattani in Southern Thailand;
among the Karens and a dozen other minorities in Myanmar; and
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among the hill tribes of Vietnam and Cambodia.
We Filipinos even now are in the middle of mourning our
most recent casualties in a separatist war being waged by Islamist
in our Muslim communities in portions of Mindanao and Sulu.
Six days ago, these rebels killed 14 marines in an ambush
in Basilan Provincewhile the soldiers were looking for an Italian
missionary the rebels had kidnapped.
That ten of the soldiers bodies were mutilated and beheaded
tell us how brutal our separatist conflictwhich has raged off and
on since the early 1970shas become.
Reconciling These Movements for Self-determination with
Majority Opposition
HOW DO WE RECONCILE minority movements for self-
determination with the unavoidable resistance from majority peoples
that they are bound to attract?
To find a resolution, I believe we should start from the truism
thatlike every other human rightthe right to self-determination
of a community has a corresponding responsibility.
The bottom line is that self-determination for minority
peoples is generally possible only within the context of the pluralist
states territorial integrity, its political stability and its economicwell being.
Only in a very few instances have separatist conflicts
succeeded in creating new states. In our region, only East Timor
has been able to do soat such great costand now Timor-Leste
faces such dismal prospects (despite the prospect of offshore oil in
the Timor Sea), as to make the entire effort seem dubious.
Short of separatism, most central governments are generally
willing to grant distinct communities nearly as much political and
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social (religious) autonomy as they would wish particularly if
these communities are prepared to exert coercive power to obtain
them.
In the case of conservative Muslim province of Aceh, in the
West Sumatra, the government of President Susilo Bambang
Yudhoyono went as far as to grant the provincial authority a generous
share of the national revenues from Acehs resources of oil and gas.
For our Muslim communities of Mindanao and Sulu, Manila
has established an autonomous region integrated into the countrys
political, military, education, economic and judicial mainstream.
This idea of an autonomous region became the basis of the
peace agreement with the secularist MNLF.
A peace agreement that Manila signed with the MNLF in
1996whose provisions included the incorporation of some of the
armed MNLF units into the national armed forcesstill is in force.
Another agreement is being threshed out with the Islamist
MILF, which broke away from the MNLF in 1981.
The talks with the MILF, which are being mediated by the
Government of Malaysia, Saudi Arabia and the OICthe
Organization of the Islamic Conferencehave overcome their
biggest obstaclethe problem of Muslim ancestral lands in parts
of western Mindanao on which Christian settlers have laid legalclaim.
As part of its program of reconciliation, Government is also
considering a catch-up program to bring up our Muslim
communities to the level of the other administrative regions in the
standards indicators of social developmentin levels of nutrition,
primary health care, life expectancy, basic education, literacy and
mass-povertyover a specific period.
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The Pros and Cons of Self-determination for Peoples
The present-day plight to Timor-Leste tells us how difficult
independent life can be for small national units in our time.
Indeed the rise of interdependenceof a new episode of
globalizationis driving states to coalesce into supra national units,
to gain economic and political economies of scale.
A countercyclical movement toward regionalism is
evident throughout the world. Independent state states are coming
togetherin Western Europe, Latin America, Africa, North
America, and in every region of Asia.
Individual states are giving up aspect of their sovereignty
to regional bodiesin return for access to internal markets, supplies
of raw material and of labor, and representation in bargaining units
able to deal equally with other regional groupings.
Given all these facts of presentday life, self-determination
for peoples in practice boils down to autonomy in a certain aspect
of governance and in social, cultural and religious life.
These include the right to determine laws on personal and
family relations; the practice of religion; authority over ancestral
lands and over local natural resources such as hydrocarbons and
mineral ores; control over local governments, the education system,
and police forces.
With goodwill and both sides, all these issues can be threshed
out amicably.
Absent this mutual goodwill, one or the other side initiates
the resort to force. And this conflict eventually produces a negotiated
result that sometimes favors the central government, and at other
times the local communitydepending on the local balance of
power.
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All too often, at the end of this exercise, the two sides find
themselves making the same concessionsand reaching the same
negotiated agreementthey could have reached, had they enough
foresight to do so without coming to blows.
Our Effort to Reconcile Self-determination for Peoples with
Territorial Integrity for the Nation
IN THIS COUNTRY, we are doing all we can to reconcile
our local communitiesright to self-determination with the Filipino
nations sense of nationality and territorial integrity.
Not only have we granted formal autonomy to our Muslimcommunity. Our plans for constitutional change include a proposal
to change from the unitary to a federal republicto enable the
administrative regionswhich are already grouped into language
clustersto develop their own unique qualities and characteristics.
The Philippine State encouragesas national policythe
development of multiplicity of local lifeways and cultures, with
mutual respect for each others linguistic, religious and cultural
differences.
We have enacted into law a code of government
decentralizationand are in the process even now of devolving
political and administrative power to local governments.
Summing Up and Closing Message
IN CLOSING, let me assure all of youwhom our friends
in the Konrad Adenauer Foundation and the Institute for Autonomy
and Governance have gathered, to provide scholarship, experience
and wisdom from other places of conflict for our own peace process
in Mindanao that we in the Philippine Government appreciate
your efforts, and wish your Round-Table the success it deserves.
Not only will the restoration of peace in our southern main
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island enable our economy to return, unimpeded by instability, to
the path of growth.
Peace in Mindanao will stop the anguish of those families
whose sons are dying in the conflict there.
Peace in Mindanao will enable us to begin the work of
reconciliation and healing that must be done among its long-
suffering peoples.
And peace in Mindanao will enable us to make that fertile
land blossom once again for all its people.
To the restoration of that peace, your deliberation can
certainly help. Rest assured we will consider your proposals closely.
Thank you; good evening, and Mabuhay!
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[15]
Sri Lanka has had a relatively long tradition of modern
democracy, stretching back to the British colonial period. The
country was one of the first countries in the world to enjoy universal
suffrage in 1931. But the inability of the political elites belonging
to the different ethnic communities to share power equitably among
themselves led to a series of broken agreements and to acute mistrust
between the communities. The difficulty of protecting minority
interests in a parliamentary system in which majority-minority
relations are strained is exemplified by Sri Lankas modern political
history.
Sri Lanka has a plural society of several different ethniccommunities numbering 19 million. The four main ethnic
communities could also be described as nationalities, as they each
have a separate sense of ethnic, cultural, historical and political
identity, and have their own areas of geographical concentration.
According to the 1981 census, which is the last that was
conducted in the entire country, the Sinhalese formed the main ethnic
group with 74 percent of the population. The majority of the
Sinhalese are Buddhists by religion and are mainly concentrated in
the south, west and central parts of the country. The Sri Lanka
Tamils with 12 percent of the population formed the next major
ethnic group. They are a clear majority in the north of the country
and the largest single ethnic community in the east. This is the
basis for the Tamil demand for autonomy, if not independence, in
the north and east of Sri Lanka, which Tamil nationalists prefer torefer to as the Tamil Homeland.
Sri Lankas Peace Process
The Tamil Quest for Self Determination
Jehan Perera
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The Muslims formed the third major ethnic group with 8
percent of the population with a concentration in the east. It is now
estimated that they form the largest single community in the east.
The Up Country Tamils, who are of recent Indian origins, formed
the fourth major community with about 5 percent of the population.
They live in the central hills of the country and have not been
involved in the separatist conflict. Most of the Tamils are Hindu by
religion. While a minority of both Sinhalese and Tamils comprising
about 7 percent are Christian by religion, they are not considered to
be a separate ethnic group.
A weakness of the Westminster system that Sri Lanka
inherited from the departing British colonial rulers is that inethnically divided societies, it permits the largest ethnic community
to obtain the largest number of seats in parliament, and then take
unilateral decisions that affect the smaller ethnic communities. In
Sri Lanka, the centralised state bequeathed to the newly independent
country in 1948 effectively transferred political power into the hands
of the Sinhalese ethnic majority.
Nearly four decades later, with Tamil militancy on the rise,
the Sri Lankan government attempted to negotiate with the Tamil
militant parties in Bhutan with Indian facilitation. At the Thimpu
peace talks of 1985, four principles were enunciated by the Tamil
parties, both democratic and militant, that negotiated with the Sri
Lankan government. The Thimpu principles put forward referred
to the Tamils as a nation, entitled to the right of self-determination
in a Tamil homeland. These principles were rejected by thegovernment and mainstream Sinhalese-dominated political parties
in the country as being tantamount to separation. But they continue
to be reference points for the Tamil polity.
The challenge to Sri Lanka today is to find a suitable
structure of governance in which two or more peoples can co-exist,
cooperate and be partners within a single state without the members
of one group being able to unilaterally impose their wishes on the
members of the other groups. Sri Lankas experience with the
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Westminster system of government is that it has enabled the
representatives of the ethnic majority to monopolise power in a
unitary constitutional framework and rule over the ethnic minorities.
Ceasefire Agreement
When the Tamil militancy first arose in the late 1970s, the
immediate reaction of the Sri Lankan government was to define the
violence as terrorism and to suppress it through law and order
methods. When the police proved unequal to the task, the army
was sent in, but with the same result, except that a process of
escalation had started that fed upon itself. The outcome was civil
war in which two armies, one government and one Tamil, facedeach other head on in the field of battle. As a corollary the
government lost physical control over a large part of the territory in
the contested north and east of the country.
The Ceasefire Agreement that forms the cornerstone of the
peace process was signed in February 2002 with facilitation from
the Government of Norway after a period that had witnessed major
military setbacks for the government. The Ceasefire recognised
the essential military parity between the two parties. It recognised
that the LTTE had achieved control over territory, and demarcated
lines of control. The Ceasefire Agreement established lines of
control between the government and LTTE. It led to the lifting of
the governments ban on the LTTE, and to providing the LTTE with
an equal place and status at the negotiating table.
Among the breakthroughs during the first phase of the peace
process, which lasted from February 2002 to April 2003, was the
agreement to explore a framework of federal governance for the
country. At the Oslo talks in December 2002, the LTTE agreed
along with the government to explore a federal solution. The final
statement signed at the close of that session of peace talks stated,
Responding to a proposal by the leadership of the LTTE, the parties
agreed to explore a solution founded on the principle of internal
self-determination in areas of historical habitation of the Tamil-
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speaking people based on a federal structure within a united Sri
Lanka. The parties acknowledged that the solution has to be
acceptable to all communities. 1
LTTE Proposal
In the middle of 2003, with the peace talks suspended and
the ceasefire deteriorating, the LTTE focused its attention on the
production of its political proposals, holding a wide range of
consultations with local and international experts in its capital of
Kilinochchi and also in numerous foreign countries, including
France, Northern Ireland, Denmark, Norway and Switzerland. The
document they have produced can be considered to be a conciseexposition of nationalist Tamil thinking over which there is the final
authority of the LTTE.
With its proposals for an Interim Self Governing Authority
the LTTE gave concrete form to its expectations in a manner that
was not incompatible with peaceful coexistence in a united Sri
Lanka.2 The LTTE recognised the right of the Sri Lankan
government to appoint members to the ISGA, and did not challeng
the right of the Sri Lankan security forces to be present in the north
east. However, when it came to formulating their proposals for an
interim solution, the LTTE made no reference to the Oslo agreement,
or to federalism. The preamble to the LTTEs proposals, described
as proposals on behalf of the Tamil people, also acknowledged with
appreciation the services of the Norwegian government and the
international community.
The LTTE proposals called for the establishment of an
Interim Self Governing Authority (ISGA) for the north east in which
the LTTE would have an absolute majority of members. Thereafter
the proposals indicated that complete autonomy was sought in
virtually every aspect of the political and economic life of the people.
There was no mention of the federal consensus arrived at by the
government and LTTE during the Oslo peace talks in December
2002. Federalism means both self rule and shared rule. The LTTEs
proposals focused on the self rule aspect alone.
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The LTTE proposals specified that separate institutions
needed to be set up for the north east in respect of police, judiciary,
elections, taxation, local and foreign grants and loans, and trade
among others. There was an assurance that internationally mandated
standards of human rights, accountability, multi-ethnic
representation and free and fair elections will prevail. But all the
institutions that were to be set up to ensure such good governance
practices would be under the sole control of the ISGA which was to
have an absolute LTTE majority.
When viewed in the abstract the LTTEs ISGA proposals
are separatist in orientation. For instance, they seek full judicial
power over all matters that are subject to the ISGA. This wouldmean that LTTE courts replace the Sri Lankan judicial system even
in government-controlled areas such as Jaffna, with no right of
appeal from them. Such full power is also sought for coastal waters
and resources. The ISGA proposals also do not mention which
authority will have final decision making power in many crucial
areas of governance, such as defence, foreign affairs and trade.
It is noteworthy that the LTTEs proposals made no provision
for integration with the nationally prevailing structures. Viewed in
this context it is not surprising that the Sri Lankan governments
response to the LTTE proposals was cautious and restrained. The
governments immediate response was to say that there were
fundamental differences between the LTTEs proposals and those
submitted several months earlier by the government.
Representatives of the Muslim community who had not beenconsulted in the design of the ISGA document saw it as an LTTE
imposition and another example of Tamil insensitivity to the Muslim
communitys separate identity.
In its own proposals regarding an interim administration
for the north east, the government specifically excluded matters
pertaining to police, land, revenue and security from the purview
of the interim administration. But in the LTTEs counter proposals,
all the above with the exception of security are specifically
considered to be the domain of the ISGA. Further, in the
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governments proposals an absolute majority in the interim
administration was conceded to the LTTE. But provision was made
for a minority veto on matters that affected the interests of the
Muslim and Sinhalese communities living in the north east. This
provision was absent from the LTTEs proposal, which was also
silent about how the minority communities in the north east could
truly share power with the LTTE-appointed majority.
On the ground the Muslims and Sinhalese of the east, who
presently constitute over 60 percent of the population, strongly
protested their inclusion into an LTTE dominated administration.
The Muslims in particular were vociferous about their opposition,
as in the Sri Lanka Muslim Congress they have a political partythat draws virtually all its strength from the east. The SLMCs
first response to the LTTEs proposals was to say that they did not
meet Muslim aspirations.
Self rule as proposed by the LTTE needed to be
supplemented by shared rule, both by north east Tamil
representatives at the central level, and by the Sri Lankan
government at the regional level. Unfortunately,President Chandrika
Kumaratunga seized on the opportunity to claim that national
security was threatened by the LTTE proposal, dissolved the
government of her rival, Prime Minister Ranil Wickremesinghe and
called for fresh Parliamentary elections. At the election campaign
that followed in April 2004, a nationalist Sinhalese campaign that
denounced the Ceasefire Agreement as a capitulation to the LTTE,
and as having set the stage for the LTTEs proposed ISGA, took thecentre stage. It resulted in the routing of the former government
and dampened the prospects for a negotiated peace agreement.
Joint Mechanisms
The fundamental weakness in the peace process was the
failure to effectively negotiate an agreement on the political
framework within which the peace process could be located. The
failure to reach agreement on these parameters meant that both the
government and LTTE had an incentive to strengthen themselves
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on the ground, so as to be in a stronger bargaining position in the
future. The efforts of the government and LTTE to rearm
themselves, upgrade their weaponry and to eliminate opponents,
particularly on the part of the LTTE, could be attributed to this
reason.
In addition, the failure to agree on the parameters of a
permanent solution also compromised the effort to set up an interim
administration for the north east. It meant that the government and
LTTE were attempting to come up with an interim settlement without
a common vision of a final settlement. It also meant that the
governments idea of an interim solution was anchored to its
commitment to the centralised model of the unitary state, while theLTTEs idea of an interim solution was anchored in their ideal of
separation.
It required the tsunami of December 26, 2004 to break the
political stalemate with regard to the situation in the north east.
The tsunami took nearly 40,000 lives with most of the victims being
in the north east sea coast. After protracted negotiations, the
government under President Kumaratunga and LTTE agreed to set
up a Post Tsunami Operational Management Structure, better known
as the Joint Mechanism or by its abbreviation, PTOMS. The signing
of the agreement in June 2005 heralded a possible new phase of the
peace process.
The agreement to establish PTOMS was designed to make
the LTTE enter into partnership with the government in the area ofeconomic reconstruction and development. The PTOMS agreement
was primarily negotiated between the government and LTTE with
the Norwegian facilitators playing only a secondary role. The
PTOMS agreement demonstrated that even in a situation of armed
hostilities, it was possible for the government and LTTE to reach
agreement on very substantial matters if there was the necessary
political will.
What was significant about the PTOMS agreement was that
it provided a possible model for a larger structure of governance
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that could incorporate the entirety of the contested north east, and
not just its tsunami-affected areas. It was a well crafted document
with many safeguards and checks and balances in it. For instance,
the one year term, two kilometer limit, minority veto and
international monitoring provisions left little room for any dangerous
abuse of the system.
Another major achievement was the marked shift in the
attitude of the LTTE itself that occurred in the course of the
negotiations. A comparison of the PTOMS with that of the LTTEs
proposed Interim Self Governing Authority (ISGA) proposal showed
a significant difference. According to various statements made by
the LTTE, they were prepared to be flexible because the jointmechanism dealt with humanitarian issues arising out of the tsunami
tragedy. The LTTE drew a distinction between the joint mechanism
and their yet unmet demand for an interim administration.
Nevertheless, the LTTEs willingness to adopt a step-by-step
approach to power sharing rather than a maximalist solution needed
to be appreciated.
The PTOMS mechanism also provided for safeguards within
it for the Muslim and Sinhalese ethnic minorities in the north east.
The powerful regional committee provided for ten members, five
of whom were to be LTTE appointees, three Muslims and two
Sinhalese. The first safeguard was that even two of the ten members
in the joint mechanism at the regional, or north east, level could
trigger off a minority safeguarding mechanism. If two of the ten
felt that a particular decision was adverse to the interests of an ethnicminority, a simple majority would not suffice to ratify that decision.
Instead seven out of ten, or more than two thirds of the members
would have to give their assent to that decision for it to be
operational.
The second safeguard was that the joint mechanism at the
district level would include observers from the international donor
community. Their presence in the joint mechanism would help to
ensure transparency and accountability as no international donor
would wish its money to be used for secret or illegitimate purposes.
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There was also the likelihood that the World Bank, with its strict
accountability and auditing criteria, was to be the custodian of the
funds.
It is tragic that political manoeuvering and ethnic prejudice
should have led to the stalling of the PTOMS agreement. The
agreement was challenged in the Supreme Court which delivered a
judgment that was praised by Sinhalese nationalists who filed the
action and that knocked the main substance out of it. Prime Minister
Mahinda Rajapaksa, who went on to become the victorious
candidate at the Presidential elections of November 2005 promised
he would not implement the agreement if he was elected, which
promise he kept.
Being involved in the governance of an interim
administration would have given the LTTE access to developmental
resources and to formal engagement with international governments
and aid agencies. The failure to successfully establish an interim
administration, or even devise a substitute for it, such PTOMS, has
meant that the LTTE was excluded from taking on formal
responsibilities of governance in the north east for the entire duration
of the peace process.
End Piece
Since the election of President Mahinda Rajapaksa in
November 2005 the country has been in the throes of an undeclared
war. It is a war that is undeclared because neither the governmentnor the LTTE are prepared to take responsibility before the people
and the international community for starting the war. Indeed, at the
initial stages of breakdown, both sides publicly denied responsibility
for most of the acts of violence that they perpetrated against each
other. Neither side has been prepared to formally denounce the
Ceasefire Agreement of 2002.
The renewal of conflict under the administration of President
Rajapaksa makes any political settlement more difficult. The Sri
Lankan armed forces have taken control of significant amounts of
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territory that was hitherto controlled by the LTTE. Although the
LTTE has been militarily weakened by internal splits and increased
international pressure on its fund raising among the Tamil diaspora,
it remains a formidable military force able to mount guerrilla attacks
in different parts of the country and to launch conventional military
attacks in the north. 3
The governments military strategy at the present time is to
diminish LTTE power by eliminating its administrative presence
and institutions wherever possible. The fierce military battles that
have been taking place in the east, with little consideration of the
civilian cost, is evidence for this strategy. There is reason to believe
that the government will not be content with only clearing up theeast, and that it will progressively seek to limit LTTE power in the
north as well. The battles are taking longer than expected, but the
general trend in these military confrontations has been favourable
to the government.
Simultaneously, the government has taken steps to develop
a political framework for a political solution. But it is presently
keeping this separate from its war strategy. During the Kumaratunga
presidency there was much criticism that its two-pronged military
and political approach was undermining each of the two prongs. It
was said, for example, that the former governments propaganda
about the desirability of a political solution discouraged military
recruitment.
Although President Rajapaksa has mandated the All PartyConference to work out a political solution to the ethnic conflict,
this process is clearly subordinate to the military option at the present
time. There are no governmental education programmes on a power
sharing political solution, as there was during President
Kumaratungas time. Right now, the Rajapaksa government does
not appear to want a political solution that is acceptable to the forces
of Tamil nationalism to undermine its military successes.
The indications at present are that the war will continue
with broad support from the majority of the population, in particular
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the Sinhalese majority. A Social Indicator poll conducted by the
Centre for Policy Alternatives in early 2007 showed that more than
half of the Sinhalese polled favour the military weakening of the
LTTE, even though most of them also favour a political solution to
the ethnic conflict.4
Tragically the war appears to have a beguiling allure to both
the Rajapaksa government and to the LTTE. Those who support
the governments military campaign believe that the government
has to defeat the LTTE in order to defeat the threat of Tamil
separatism. On the other hand, those who support the LTTEs
military campaign would believe that the LTTE has to wrest Tamil
rights, and Tamil territory, by force of arms away from thegovernment. But both are dealing with symptoms, not the causes.
The fact is that the ethnic conflict existed before the LTTE was
formed or the Rajapaksa government came into power.
The main argument against the notion of a military solution
is that eradicating a symptom cannot end the cause of the problem.
Even if the government were to defeat the LTTE on the battlefields
of Sri Lanka, it will not be able to eradicate the Tamil nationalism.
The desire of Tamil people to enjoy equal rights and to have real
decision making power in Sri Lanka, whether in the north and east
or in Colombo, is not limited to the LTTE-controlled Wanni. It
exists in the same measure in other parts of the north and east, in
Colombo and elsewhere in the country. In addition, there is a vast
reservoir of Tamil nationalism in the Tamil expatriate community
that lives abroad, that no amount of military solutions in Sri Lankacan ever hope to subdue. There is only one answer to Tamil
nationalism and that is a just political solution that accords with
universal human rights principles.
Bibliography
K.M. de Silva, Reaping the Whirlwind: Ethnic Conflict, Ethnic
Politics in Sri Lanka. Penguin, India. 1998
Jane Russell, Communal Politics under the Donoughmore
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Constitution 1931-47, Tissara Prakashakayo, 1982, P. 192
National Peace Council, Cost of the War, Colombo 2006
National Peace Council, Media Releases 1996-2005, Colombo 2006
International Alert, Sri Lanka: Emergency, London, 1986
Godfrey Gunatilleke, Negotiations for the Resolution of the Ethnic
Conflict, Marga: Monograph Series on Ethnic Reconciliation, No
1, 2001
Kumar Rupesinghe (Ed), Negotiating Peace in Sri Lanka: Efforts,Failures and Lessons, International Alert, London, February 1998
International Crisis Group, Sri Lanka: The failure of the peace
process, 28 November 2006
University Teachers for Human Rights (Jaffna) publications. Hubris
and Humanitarian Catastrophe, Special Report No 22, 15 August
2006
Peace Confidence Index, Social Indicator, January 2007
The Island Newspaper
The Daily Mirror newspaper
www.peaceinsrilanka.org
www.peace-srilanka.org
www.tamil net.com
Notes
1 The website of the governments peace secretariat,
www.peaceinsrilanka.org, contains the full texts of documents
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relating to the peace process.2 See www.tamilnet.com for LTTE documents3 International Crisis Group, Sri Lanka: The failure of the peace
process, 28 November 20064 Peace Confidence Index, Social Indicator, January 2007
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[29]
Prologue
The paper envisages to investigate national constitutionaldevelopment since Thai modern state has well embraced democratic
notions of governance to be led by the PEOPLE, of the PEOPLE
and for the PEOPLE in 1932. It is, however, interesting to note that
since then until 2007 17charters and constitutions have been drafted
and implemented. Not the contents of these charters and
constitutions that created national emotions but also how they were
drafted have been more powerful to be claimed national democraticdevelopment, like the 16th 1997 constitutional drafting process that
had gain great political momentum nationwide and called the most
populous PEOPLEs constitution. It is really a civic constitution
that has been paving the way for better and broader human rights
issues to be infused and geared. This paper, then studies how this
development plays the role of building national infrastructures for
right to self-determination of people in Thailand.
Thai Constitutional Development:
National Infrastructures for Right to
Self-Determination of People
Sukree Langputeh
This paper was presented at International Roundtable Conference on
Right to Self-determination of Peoples jointly organized by Institute for
Autonomy and Governance and Konrad Adenauer Stiftung at Asian
Institute of Management Conference Center Makati City, Metro Manila,
Philippines, July 16-18, 2007.
Dean, Faculty of Liberal Arts & Social Sciences, and Board of Directors,
Al-Salam Institute, Yala Islamic University, Pattani, Thailand.
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Thai Constitutional Development: National Democratic
Infrastructure
The Constitution of the Kingdom of Thailand is the
supreme law of the Kingdom of Thailand. Since the founding ofthe modern state in 1932, Thailand has had 17 charters and
constitutions, reflecting the high degree of political instability and
frequency of military coups faced by the nation. After successful
coups, military regimes often abrogated existing constitutions and
promulgated new ones.All of Thailands charters and constitutionshave allowed a constitutional monarchy, but with widely differing
balances of power between the branches of government. Most of
them have stipulated parliamentary systems, however, several ofthem also called for dictatorships, e.g., the 1957 Charter. Both
unicameral and bicameral parliaments have been used, and members
of parliament have been both elected and appointed. The direct
powers of the monarch have also varied considerably. This can be
learnt through the nations 65 years democratization process with
its 17th charters and constitutions as follows:
1. Temporary Charter for the Administration of Siam Act
1932
2. The Constitution of the Siam Kingdom 1932
3. The Constitution of the Kingdom of Thailand 1946
4. TheConstitution of the Kingdom of Thailand
(Temporary) 1947
5. TheConstitution of the Kingdom of Thailand 1949
6. The Constitution of the Kingdom of Thailand 1932(Revised 1952)
7. The Charter for the Administration of the Kingdom 1959
8. The Constitution of the Kingdom of Thailand 1968
9. The Temporary Charter for Administration of the
Kingdom 1972
10. The Constitution for the Administration of the Kingdom
197411. The Constitution for Administration of the Kingdom
1976
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12.The Charter for Administration of the Kingdom 1977
13. The Constitution of the Kingdom of Thailand 1978
14. The Charter for Administration of the Kingdom 1991
15. The Constitution of the Kingdom of Thailand 1991
16. The Constitution of the Kingdom of Thailand 1997
17. The Constitution of the Kingdom of Thailand (Interim)
2006
The last permanent constitution was promulgated in 1997.
Called and acknowledge by all walks of lifves as the Peoples
Constitution, it was considered a landmark in terms of the degree
of public civic participation involved in its drafting as well as the
democratic nature of its articles. It stipulated a bicameral legislature,both houses of which are elected. Many human rights are explicitly
acknowledged, and measures were established to increase the
stability of elected governments.
However, following an army-led coup on 19 September
2006, this Constituton was abrogated. The junta ruled the country
by martial law and executive decree for weeks, until it promulgated
an interim constitution on 1 October 2006. The Interim Constitution
allowed the junta to appoint a Prime Minister, legislature, and
drafting committee for the next 18th permanent constitution. Human
rights were broadly acknowledged, but junta censorship as well as
bans against assembly and political activities were not repealed
One might see that the great number of charters and
constitutions is indicative of the degree of political instabilityThailand has faced in its modern history. The majority of charters
and constitutions were the direct or indirect result of military coups.
Charters and constitutions for much of Thai history can be thought
of, not as instruments of the people to control the government, but
as instruments by which a government controls its people. These
political parameters have been influenced by the political and
military strength of the regime and the degree of support from the
king and the palace. For instance, the 1959 Charter gave Sarit
Dhanarajata absolute power over the executive and the legislature,
which reflected the overwhelming strength with which he executed
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a coup over Plaek Pibulsonggram as well as his strong support from
the palace.
Based on the degree by which the legislature is elected,
Thailands 17 constitutions and charters can be categorized into 3
groups:
1. Elected legislatures: The legislature is completely
elected. This included the 1946 Constitution (where the
elected House selected the Senate) and the 1997
Constitution (where both the House and Senate are
elected)
2. Appointed legislatures: The legislature is partly elected
and partly appointed by the executive. The appointed
members of the legislature are sufficient to limit the
power of the elected representatives. The Prime Minister
is either a military leader or a figurehead of the military
or the palace. This includes the (after 1937), the 1947
Charter, the 1949 Constitution, the 1952 Constitution,
the 1968 Constitution, the 1974 Constitution, the 1978
Constitution, and the 1991 Constitution
3. Absolute executives: The executive has absolute or near
absolute power, with either no legislature or a completely
appointed legislature. The Prime Minister is usually a
military leader or a figurehead of the military or the
palace. This includes the 1932 constitutions (before1937), the 1959 Charter, the 1972 Charter, the 1976
Constitution, the 1991 Charter, and Thailands current
charter, the 2006 Interim Charter.
1997 Peoples Constitution: Landmark for Political & National
Human Rights Reforms
The 1997 Constitution was widely hailed as a landmark in
democratic political reform. Promulgated in 11 October 1997, it
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was the first constitution to be drafted by an elected assembly, and
hence was popularly called the Peoples Constitution. The 1997
Constitution has several innovations compared to previous
constitutions, including:
1. Political Reform
Voting was made compulsory in order to ensure high-
turn out reduce vote buying. A mixed electoral
system based on Germanys was adopted for the
House of Representatives. 100 members of the
House are elected from party lists, and the remaining
400 are elected from single-member constituencies.
MPs were required to have a bachelors degree. Anindependent Election Commission was established
Strengthening the executive branch.[36] A 2/5s vote
of the House was required for a vote of no confidence
debate against a Prime Minister. A successful vote
of no confidence required a majority of 1/2 of the
House. Only 1/5th of the House was required for a
no confidence motion against an individual Minister.
These measures were aimed at increasing the
stability of governments.
Greater separation between the executive and
legislative branches. MPs were forced to resign from
the House in order to become Cabinet Ministers.
Decentralization of government, including the
establishment of elected Tambol Administrative
Organizations (TAOs) and Provincial Administrative
Organizations (PAOs). School administration was
also decentralized.
2. Human Rights Reform
A plethora of human rights were explicitly
recognized, including the right to free education, the
rights of traditional communities, and the right and
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duty to peacefully protest coups and other extra-
constitutional means of acquiring power. The right
to protest coups was banned following the 2006
coup.
Increased checks and balances, including new
independent government agencies like the
Constitutional Court, the Administrative Court, the
Office of the Auditor-General, the National Counter
Corruption Commission, the National Human Rights
Commission, the Consumers Protection
Organization, the Environmental Conservation
Organization, and an Ombudsman.
The matters with which we are most concerned form Chapter
3 of the 1997 Constitution onRight and Liberties of Thai People
are mostly as follows;
1. Freedom of Communication (Article 37). This Article
provides excellent public protection against censorship.
It guarantees UNFETTERED COMMUNICATION by
any means, INCLUDING THE INTERNET. This
section MUST be retained and the specific consideration
of the Internet added. ADD to this PRIVACY
consideration that prohibits any individual, including
those representing any greater body in government or
the private sector, from retaining any records of anyindividuals Internet activity such as retention of searches
and IP address logs, as at present.
2. Freedom of Expression (Article39). This section
allows all persons in Thailand to express their opinions
in all forms, both spoken and written. It is an excellent
guarantee that all persons in Thailand have full access
to all information, free of censorship. This section MUST
be retained. It should be broadened to PROHIBIT ALL
CENSORSHIP: no banned books. It should also provide
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greater emphasis to the prohibition of government
involvement in media ownership.
3. Free Public Expression (Article 41). Press and media
freedom.
4. Academic Freedom (Article 42). This section should
be broadened to PROHIBIT ALL CENSORSHIP of all
academic discussion, whether oral or written. No banned
books.
5. Freedom of Association (Article 45). MUST be
retained.
6. Public Information (Article 58 and 59). Access by all
persons to government will eliminate corruption, make
politicians and bureaucrats accountable to the public and
make government honest and transparent.
information, explanation, reason MUST be
retained.
7. Public Participation in Government (Article 60).
MUST be retained for protection of the public from
government secrecy.
8. Right to Petition (Article 61). All persons in Thailand
must have the right to petition government for redress.
Currently, theNational Human Rights Commission ofThailand is only empowered to give recommendations
to government with no enforcement powers in law. This
allows government agencies and individuals to ignore
both NHRCs requests for information and clarification
and to ignore NHRCs final recommendations. We
should give this section more teeth.
9. Right to Sue (Article 62). As a last resort, all persons
in Thailand should be able to bring suit against any
individual in government or any government agency for
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redress. This section should also make provision that
government will provide competent, legal counsel, as
well as all court costs and fees, FOR FREE to anyone
not able to pay. This will enable all persons, regardless
of economic status to, have power in government. There
may be some risk of spurious lawsuits but the civil
protection thus afforded the public will be well worth
this minimal risk.
The Constitution was highly praised for the participative
process involved in its drafting, its enshrinement of human rights,
and its significant advances in political reform. It was viewed as
successful in fostering democratic development and increasingpolitical stability. Its measures to politically empower and protect
citizens were also praised.
The January 2001 House elections, the first House elections
contested under the 1997 Constitution, were called the most open,
corruption-free election in Thai history.[5] Political parties were
effectively strengthened, and the effective number of parties in the
legislature fell.
However, most criticism was based on the perspective that
the Constitution was too effective in some of its reforms. One of
the members of the Drafting Committee, Amorn Chantarasomboon,
claimed that an overly strong and stable government brought on a
tyranny of the majority and a parliamentary dictatorship.[41]
Following House elections in April 2006, the ElectionCommissioners were jailed and the election results overturned by
the Constitunal Court.
The constitution was also criticized for the lack of clarity
with which it defines the Kings role in politics (see Royal powers
and 2006 demand for royal intervention). The Senates role in
scrutinizing Constitutional Court appointments came under much
criticism (see Appointment of the first Constitutional Court).
Although the Senate was supposed to be non-partisan, block-voting
became common.[42][43] A constitutional crisis almost occurred
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following April 2006 House elections (see April 2006 House election
results). Governments were criticized for politicizing appointments
to independent agencies.
On the evening of 19 September 2006, less than a month
before scheduled nation-wide House elections, the Thai military
led a coup against the government of Thaksin Shinawatra. The
military junta abrogated the 1997 Constitution, suspended the
Parliament, banned demonstrations and political activities, censored
the media, and dissolved the Constitutional Court, National Human
Rights Commission and other agencies created by the 1997
Constitution. For the first weeks, the junta ruled by decree. As a
result, International condemnation and several local protests againstthe coup were conducted, despite the juntas ban. In subsequent
weeks, condemnation of the coup transformed into criticism of the
junta-appointed government of General Surayud Chulanont and the
constitution drafting process.
2006 Interim Constitution of Thailand: One or more Steps Back
for Human Right Development in Thailand
The 2006 Interim Charter of Thailand was drafted by the
Council for Democratic Reform (CDR) after it seized power from
the government of Thaksin Shinawatra in the 2006 Thailand coup.
Released on 27 September 2006 and promulgated on 1 October
2006, the Constitution allowed the junta to retain significant control
over the appointed civilian government and the drafting of a
permanent constitution. The CDR would be transformed into apermanent Council for National Security (CNS) and would appoint
the head of the executive branch, the entire legislature, and the
drafters of a permanent constitution.
The Constitution made no mention of succession, instead
leaving it to constitutional practice. The draft came under strong
public criticism as being a step backwards from the . The charter
did not repeal junta bans restricting freedom of speech, assembly,
and political activity. Although it was originally called a charter,
it was officially named a constitution
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The junta appointed a legal panel to draft an interim charter
(later officially called a constitution). The team was led by former
Senate speaker Meechai Ruchuphan, and originally included jurists
Borwornsak Uwanno and Wissanu Krea-ngam. Both had played
key roles in drafting the 1997 Constitution and had served under
the deposed government, although they had resigned several months
before the coup. Both resigned from the panel after public criticism
that they were members of the ancien rgime. Thammasat University
vice-rector Prinya Thewanaruemitkul harshly criticized the two,
saying that they were not honourable enough to look after the
democratic system. Both refused to play any further role with the
military junta.
The draft interim charter had 39 articles. Structurally, the
draft interim charter was similar to the 1991 Constitution, the 1976
Constitution, and the 1959 Charter, in that it stipulated an extremely
powerful executive branch which would appoint the entire
legislature. Interesting articles of the charter to be noted are as
follows:
prescribes for the constitutional monarchy and the
Kingdom of Thailand as the singular state (Art. 1)
guarantees basic rights, human dignity and equality
under the law in accordance with the democratic rule
under the king as head of state and international
obligations (Art. 3)
outlines the formation and duties of the National
Legislative Assembly, which will comprise 250 membersappointed from professional groups, geographical areas
and various sectors of society (Art. 5)
allows the National Legislative Assembly to request the
Cabinet to give statements of fact or explain problems,
but explicitely states that it may not make a vote of
confidence or no confidence against the Cabinet (Art.
11)
grants immunity for remarks made on the floor (Art.13)
allows the Chairman of the Council for National Security
(the junta) to remove the Prime Minister (Art. 14)
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guarantees the independence of the judiciary (Art. 18)
spells out a process for drafting a permanent constitution.
This includes the prohibitation of the 100 members of
the Constitution Drafting Council from being current
members of a political party or being members of a
political party for the previous 2 years (Art. 19)
empowers the Legislative Assembly speaker to chair the
National Assembly (Art. 20)
spells out the peer-vote of a 2,000 member National
Assembly to elect 200 candidates for the Constitutional
Drafting Council. Each member can vote for no more
than three members, those nominated with the most votes
will win. In the case of tied votes, which result in morethan 200 winners, the winners will be decided by
drawing lots. The peer-vote must complete in seven days
(Art. 22)
empowers the Council of National Security to pick 100
of 200 CDC candidates for royal approval (Art. 22)
empowers the Council of National Security to appoint a
100 member CDC if the National Assembly fails to
complete its selection within 7 days (Art. 23)
Future Trends: From Human Rights to Right to Self-
determination of People in Thailand
Members of the Human Rights Comission will be expected
to have domestic laws in place to protect and uphold fundamental
human rights, in accordance with international treaties. These mustinclude constitutional provisions not only on some basic human
rights issues in previous charters and constitution but this
Commission should in turn play the role for initiating right to self-
determination of the people in this nationor equivalentwhich
are enforceable through legal actions by an ordinary person.
National candidacy to the council must also be contingent
upon it introducing a procedure through which appeals on the
grounds of fundamental human rights and constitutional rights may
be laid before the higher courts.
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That people in Thailand be given a right of redress emanating
directly from the constitution is an exceptionally important condition
for Thailands acceptance into the Human Rights Commission. In
recent weeks, the role of its courts has been spotlighted by a
constitutional crisis caused by an unprecedented political impasse,
itself provoked by a popular movement against the dominant
political party. This situation has caused much greater awareness
among the general public that the judiciary is by far the weakest leg
of the Thai state. It is also a leg that is disinclined to stand on its
own. Ultimately, this is a problem that returns to all of the conditions
for Thailands acceptance to the Human Rights Council. Effective
laws to eliminate torture and other gross human rights abuses,
effective implementation of UN recommendations, guarantees ofaccess to UN officials, and enforcement of constitutional rights all
depend upon a strong judiciary which is worthy of public respect
and willing to exercise its authority where and as necessary. In the
end it is this principle of a powerful and independent judiciary to
which Thailand must subscribe if it is to deserve its place on the
Human Rights Commission. And for that reason, its candidature is
most timely and should be the cause of lively discussion both in the
UN system and in Thailand itself.
The Asian Human Rights Commission urges the UN General
Assembly to make Thailands candidature to the Human Rights
Commision contingent upon these four conditions. It urges key
agencies for the protection of human rights in Thailandespecially
the National Human Rights Commission of Thailand, Lawyers
Council of Thailand, concerned politicians and members of thejudiciaryto enter into vigorous debate on the countrys human
rights record and its proposed candidacy. Let this be an opportunity
for open and frank discussion on the serious obstacles to the realising
of human rights in Thailand at a critical time in its history.
The AHRC sincerely hopes that the Human Rights Council
will be a success and that it will augur in a new era of respect for,
and protection of, human rights. The council faces many obstacles
before this becomes a reality, and the election of members who
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have demonstratednot merely pledged themselvesa genuine
commitment to human rights is of the utmost importance.
Epilogue
It can be summed up that Thai national constitutional
development has played vital role in shaping human right
development of the country. How a country which never creates
any majority-minority ethnic sentiment in all 17charters and
constitutions and it may include the 18th permanent constitution
handle its people right to self-determination, especially for those
who might or may see things differently form the mainstream
conventional paradigm of citizenship
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Introduction
In the Southeast Asian region, self-determination or identity
conflicts continue to develop and are actively being pursued by
local and international actors towards the path of conflict resolution
and peacebuilding. Among these are the cases of Pattani (Thailand)
Mindanao (Philippines), and Aceh (Indonesia). In Aceh, the
international community and the Acehnese people bear witness to
the signing of the Memorandum of Understanding (MoU) in August
15, 2005 between the Government of Indonesia (GoI) and the Free
Aceh Movement (GAM). This successful peace negotiation was
mediated by the Crisis Management Institute (CMI) in Helsinki,
Finland led by former Finnish President Maarthi Ahtissari. Underthis Helsinki MoU, GAM accepted that the Province of Aceh
remains within the unitary state of Indonesia but with the condition
of achieving self-governance as a form of its self-determination
aspirations. This paper shall explore the developments of the
implementation of the peace agreement in Aceh. It will however,
first look at the background of the Aceh conflict and the struggle
for self determination in Aceh history. It will then discuss the new
political arrangements between the GoI and the new Aceh
government, and the postconflict developments and the dividends
of peace that the Acehnese people currently experience.
*Research and Education for Peace, Universiti Sains Malaysia
(REPUSM); Email: [email protected]. URL: www.seacsn.net
The Struggle for Self-determination in Aceh
Ayesah Abubakar & Kamarulzaman Askandar*
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Background to the Aceh Conflict and the Struggle for Self
Determination1
A brief exploration on Acehs history explains the mix of
factors that led Aceh into a war of national liberation that became
the struggle for self determination of the Acehnese people. Islam
has also always featured prominently in the history of this struggle.
According to historians, Islam first entered the Indonesian
archipelago, and possibly all of Southeast Asia, through Aceh
sometime around the year 700. The first Islamic kingdom, Perlak,
was established in the year 804. Much later, in the sixteenth and
seventeenth centuries, the port of Aceh became entangled, along
with the rest of what is now Indonesia, in European colonial powerscompetition for worldwide political and economic dominance.
Interested parties included the Portuguese, Spanish, Dutch, and
British. For many centuries Aceh was a very distinct and influential
political entity. The Sultan of Aceh and the Sultan of Malacca, were
major controllers of trade through the Straits of Malacca. One of
the most significant events in Acehs history came in 1824 with the
signing of the London Treaty often referred to as the Anglo-Dutch
treaty in which the Dutch gained control of all British possessions
on the island of Sumatra including Aceh. Yet the Dutch colonialists
failed to fully capture Aceh. Only after all the neighboring territory
was conquered did they mount a final campaign to subdue Aceh.
That war took them 35 years. The next major agreement was the
Linggarjati Agreement mediated by Britain and signed by Indonesia
and the Netherlands in March 1947. In this agreement, the Dutch
recognized Indonesian sovereignty over the islands of Java, Sumatra,and Madura. Perhaps the most critical event in explaining the attitude
of many Acehnese is the signing of the 1949 Round Table
Conference Agreements. Brokered under the auspices of the United
Nations, the agreements provided for a transfer of sovereignty
between the territory of the Dutch East Indies and fully independent
Indonesia. The Kingdom of Aceh was included in the agreements
despite not having been formally incorporated into Dutch colonial
possession. Subsequently the Indonesian government used armed
troops to annex Aceh. Since the annexation, the Acehnese have
continued to resent what they consider as foreign occupation and
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the struggle for self determination in Aceh has gone through several
phases. It is important to look at these phases to truly understand
the progression for self determination in Aceh, and how it has
fluctuated between outright calls for independence and preserving
the existing arrangements albeit with modifications.
First phase. The precursor to Acehs independence
movement began in 1953 when Indonesia experienced theDarul
Islam rebellion, in which rebels on the major Indonesian island of
Java tried to establish an Islamic state, supported by Muslim leaders
in Aceh who had the same aspirations.. Many Acehnese leaders
who had earlier participated so enthusiastically to gain independence
for Indonesia from the Dutch during 1945-49 became verydisappointed with the position of Aceh after independence. This
was basically for two reasons. Firstly, because it became clear that
the new republic would be ruled on the basis of the philosophy of
Pancasila rather than Islam, and secondly because of the fusion of
Aceh into the province of North Sumatra in 1950. Therefore, in
1953, many of the ulama and other leaders who had led the Acehnese
during the 1945-49 periods led their followers into theDarul Islam
(Abode of Islam) revolt. This revolution was aimed at establishing
Aceh as an autonomous region within an Islamic Indonesia. They
were quite explicit about these aims, declaring themselves part of
the Negara Islam Indonesia (Indonesian Islamic State) earlier
declared by Kartosuwirjo, anotherDarul Islam leaderinWest Java.2
This revolt continues to be important simply because the response
of the Indonesian government since then has mostly been to address
the demands of this revolt that is autonomy and the power toimplement aspects of Syariah or Islamic law. For example, in 1959,
the Indonesian government responded by giving Aceh the status of
a special territory which ostensibly confers some degree of
autonomy in religious, educational, and cultural matters.
Second phase. Despite this status, in 1976Aceh Merdeka
(Free Aceh) was founded as an armed resistance group. This
movement was formed by Hasan di Tiro, an Acehnese businessman
and intellectual who had previously been an overseas representative
of theDarul Islam movement. He was also a descendant of one of
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the chiefulama leaders of the war against the Dutch. The demand
of Aceh Merdeka was complete independence of Aceh, having seen
how the previous demands made under the Darul Islam period had
not been benefitted the Acehnese people. The group that started
this movement was small, probably involving no more than two
hundred active members moving around in the mountains of Aceh.
It has however, support from a wider base, including villagers in
the various provinces. It had few weapons and the authorities were
able to suppress it quickly. In the late 1970s, Indonesian authorities
conducted mass arrests ofAceh Merdeka members and shut down
their activities until 1989. In that year, a group now also calling
itself the Aceh-Sumatra National Liberation Front (ASNLF) came
out of hibernation and vigorously renewed its quest forindependence, often through attacks on police and military
installations. This prompted the Indonesian military to strike back
hard against the insurgents. In 1989, Indonesia designated Aceh a
military operations area or DOM (Daerah Operasi Militer) giving
the army a free rein to crush the separatists. In what became known
as the DOM period, the Indonesian military resorted to all the
tactics of a dirty counter-insurgency war. Torture, disappearances,
rape, the deliberate display of corpses and many other techniques
became common. Passive sympathizers as well as active supporters
of GAM were affected, and many ordinary villagers also became
victims. Amnesty International reported that between 1989 and 1992
about 2,000 peoplewere killed in military operations in Aceh.3 In
all about 12,000 people, mostly civilians, have either been killed or
lost since fighting began. Although the military at times succeeded
in suppressing the movement, they also ended up creating greaterresentment in Acehnese society. This always led to a general
escalation of the conflict situation.
If we look at the progress of the conflict in Aceh, it can be
concluded then that the conflict has escalated in two ways over the
years. First of all, the attitudes of the Acehnese have been hardened.
In the beginning, the chief demand was for autonomy and the
implantation of the Syariah law. This later on become a demand for
independence, spearheaded by the GAM. Secondly, we see an
escalation in terms of popular support. This is especially so in the
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second phase of the conflict, the GAM period. The movement started
out small with not much support in 1976, but by 1999, partly in
response to the very policies that had been used to suppress the
movement, it had become much larger. Disillusionment with Jakarta
has enhanced this feeling and contributed too to the emergence of a
nationalist sentiment.
After the resignation of President Suharto in May 1998,
Acehs independence movement experienced a major revival. The
situation is now open enough to express unhappiness with the way
Jakarta has been handling the Aceh conflict over the years.
Revelations of past human rights abuses especially those done during
the DOM period fuelled the demands for independence. This contextsaw the rise of a new peaceful referendum movement, which
mobilized huge crowds throughout Aceh in November 1999. It also
saw the resurrection of GAM, especially in rural Aceh. This new
situation confronted the Indonesian government with major
challenges. Successive governments responded with a mixture of
concession and repression. This is the time that the government of
Abdurrahman Wahid initiated a process of dialogue with GAM at
the end of 1999, a process which persisted fitfully until mid-2003.
On the other hand, military hard-liners favoured a repressive
response. From late 1998, there were instances of severe repression
against civilians. The Henri Dunant Center for Humanitarian
Dialogue (HDC) was invited to act as afacilitatorin this dialogue.
The HDC was able to persuade the Indonesian government and
GAM to sign on December 9, 2002 the Cessation of Hostilities
Agreement (CoHA) which was then seen as an accord that couldpossibly end 26 years of rebellion. This agreement contained several
important points, among others, the cessation of all violent actions
and hostilities, establishment of a Joint Security Committee (JSC),
the development of peace zones in the area, the implementation of
an All Inclusive Dialogue (AID), and conducting the 2004 general
election for democratic governance in Aceh.
Compared to previous agreements, this December 9, 2002
one has larger expectations for developing peace in Aceh. This was
because of three things, namely:
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1. There are active international involvements from the
initiation to the implementation processes.
2. There is a sanctioning mechanism for violation of the
agreement.
3. There are reasonable stages for conflict resolution
embedded within the agreement. The process begins with
trust building, developing peace zones, demilitarisation,
and continued with involving the civil society in
formulating a political settlement. It ends with
establishing a democratic government by general
election.
With these advantages, this agreement becomes a promisingmilestone toward sustainable peace in Aceh. It became possible
when both sides agreed to compromise on key strategic goals. On
the part of GAM, the demand for full independence was put aside
for the time. The Indonesian government, on the other hand, agreed
to foreign monitors, mostly military officials from Thailand and
Philippines to supervise the ceasefire and the disarming of the GAM.
This is a positive development because the Indonesian government
has consistently refused to internationalize the conflict in Aceh.
The central government also passed special autonomy legislation
which gave the Acehnese a larger share of natural resource revenues,
the right to implement aspects of Islamic law, plus other concessions.
Nevertheless the peace process suffered some setbacks after
sporadic acts of ceasefire violations done by both sides despite the
presence of the HDC, the international monitors, and the newlycreated Joint Security Council (JSC). These violations reflected the
need for more continuous conflict prevention and peace-building
efforts as well as independent monitoring activities by international
organizations especially the UN. Things got from bad to worse from
here. Abdurrahman Wahid was removed as president and replaced
by Megawati Sukarnoputri. Despite promising that she would
resolve the Acehnese conflict and not allowing a single drop of
Acehnese blood to spill, the conflict continues to rage on. Megawati
was in fact weak and was in a position where she was forced to
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[49]The Struggle for Self-determination in Aceh
appease the powerful armed forces in order to gain their support in
parliament.
Third phase. In May 2003, Martial Law was implemented
again in Aceh which effectively killed off any advances made in
the peacebuilding efforts of the previous years. The GAM
negotiators were arrested on their way to Tokyo for negotiations
and more than 30,000 troops were sent to suppress the separatists
within a span of a few days in May 2003. However, martial law
was removed after a year, replaced with a civil emergency, but
without any major improvement on the ground. This emergency
status was also removed in May 2005, but again with no
improvement in the situation in Aceh. The current president, SusiloBambang Yudhoyono, promised during the run up to the presidential
election that he will end the Acehnese conflict within three years of
taking power.
At the end of 2004, Aceh was once again hit with a major
calamity, this time a natural one. The tsunami of December 26,
2004 resulted in the death of more than 150,000 Acehnese with
tens of thousands more missing. It brought the attention of the world
to Aceh and ignited again the sparks for peace between the warring
parties, this time pushed by humanitarian concerns and the need to
set aside the confrontations and help the victims. Both armed parties
quickly call for ceasefire in the area and there were positive feelers
from both sides resulting in meetings in Helsinki, Finland, facilitated
by the Crisis Management Initiative (CMI) foundation, an
organization led by former Finnish president Maarti Ahtisaari. Aftera slow start, the talk then progressed well. There were several rounds
of talks in Helsinki: the first on 28 29 January, 2005, the second
21 23 February, 2005, the third between 12 16 April, 2005, the
fourth 26 31 May, 2005, and the fifth 12 17 July, 2005. In the
beginning, the government said that it is offering special autonomy
status and amnesty for GAM separatists, but has stated that it would
reject any demand for Acehs sovereignty.4 However, by the third
round, the process is well on the way. Negotiators from both sides
have been able to push aside hard-line positions, and to explore
new solutions.
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The process took a turn for the positive in the fifth round
when it was agreed that an agreement will be signed on August 15,
2005. This Memorandum of Understanding (MoU) was made
possible by a few factors the first being the realization that both
sides need to put aside their differences to rebuild, reconstruct, and
rehabilitate Aceh after the devastating tsunami. This was the premise
of the whole peace process. This also helped the sides overcome
any major hurdles and barriers in reaching an agreement. Provisions
were made for the decommissioning of the troops the pullout of
non-organic Indonesian forces, numbering about 23,000 soldiers,
amnesty for GAM soldiers who can now go back to their old lives,
and the surrender and destruction of GAM weapons. What was more
difficult was the question of GAMs role in the post-conflictsituation. At the outset, GAM agreed not to continue pushing for
independence, albeit putting a condition that it and any other
Acehnese groups wishing to do so can be allowed to set up local
political parties as vehicles to run in local elections. The
breakthrough came when the Indonesian government side agreed
to this request, although it did come across initial oppositions from
its own parliamentarians and other political parties in the country.
Indonesian law also stipulated that only nationwide Jakarta-based
parties are allowed, making it difficult for local parties from Aceh
to participate in purely local politics. This was remedied by simply
pushing through the agreement with an understanding that a solution
for this will be found later, possibly through the amendment of the
special autonomy law for Aceh allowing local political parties to
be created only in Aceh. Provisions were also made for the