Conflict Resolution in a Self-Determination Context as a General Frame for Sub-state Arrangements

Suksi, Markku

doi:10.1007/978-3-642-20048-9_4

Markku Suksi²

1030 Accesses

Abstract

Territorial autonomy is often put forward as a possibility to resolve conflicts. The six sub-state entities examined here and the Memel Territory, too, display different approaches to conflict resolution and conflict prevention. The range of conflict resolution goes from prevention of secession and war via decolonization issues to anticipation of a potential conflict. In principle, the grant of powers to a territorial jurisdiction denotes a grant of internal self-determination to such a jurisdiction, at least in so far law-making powers proper are transferred from the national law-maker to the law-maker of the sub-state entity. At the same time as internal self-determination is transferred to a sub-state entity, also internal sovereignty is transferred. Complications may arise on the basis of the status of the population of the territory, because the inhabitants are sometimes granted particular rights, while in some other situations, they may remain disadvantaged in relation to the population of the state.

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Notes

1.
See Art. 2 of the 1906 Constitution of Russia, according to which “(t)he Grand Duchy of Finland, while it constitutes an indivisible part of the Russian State, is governed in its domestic affairs by special institutions on the basis of a special legislation”. Szeftel (1976), p. 84.
2.
During the First World War, Russia deployed troops on the Åland Islands and built military installations. Moreover, the Finnish Civil War at the beginning of 1918 resulted in the presence of military forces of the Whites and Reds, as well as units of the German and Swedish Army. The demilitarization of the Åland Islands was in danger at that point of time.
3.
See also Björkholm and Rosas (1990). With the development of modern weapons systems, the strategic importance of the Åland Islands has diminished.
4.
The Russian occupation of Finland left a Swedish-speaking population in Finland in the coastal areas of Southern, South-Western (including the Åland Islands), and Western Finland that altogether amounted to around 12% of the population of Finland. The inhabitants of the Åland Islands constituted less than 10% of that minority group.
5.
At the end of December 1917, a petition campaign was undertaken on the Åland Islands to establish and support the wishes of the inhabitants to secede from Finland and to join Sweden. Of the approximately 21,000 inhabitants of the Islands, approximately 12,500 persons had the right to vote, and about 8,000 of these were presented with a petition on the issue. 7,135 persons signed the petition addressed to “the king and people of Sweden” asking for measures to be undertaken leading to annexation by Sweden. Already in August 1917, an unofficial assembly of the inhabitants of the Åland Islands had proposed that the area would secede from Finland and join Sweden. See de Geer-Hancock (1986), p. 32 ff.; Modeen (1973), p. 14 ff. The collection of signatures proceeded from house to house and was completed in less than a week’s time. See Lindh (1984), p. 38 f. Högman (1981), pp. 41, 43, points out that the petition was formulated as a proxy in blanco, which authorized persons to be elected later on to deliver the wishes of the inhabitants of the Åland Islands to the king of Sweden, which happened on 3 February 1918. The final text of the petition was published on 20 March 1918.
6.
The second petition campaign was completed on 29 June 1919. This second petition was signed by 9,735 persons who supported union with Sweden, while 461 persons refused to sign the petition. See Lindh (1984), p. 44 f. Högman (1981), pp. 119, 124 f., points out that every signature was confirmed by two witnesses and that the petition again was a proxy in blanco for union with Sweden.
7.
These two petitions are sometimes erroneously referred to as referendums or plebiscites. See Hannikainen (2007), p. 54, Austen et al. (1987), p. 145.
8.
In his speech of 8 January 1918 containing fourteen points of American aims for ending the First World War, the exact term ‘self-determination’ is not used, but many of the formulations are coherent with the principle. It should be noted that the speech also uses the concept of autonomy, but probably in a relatively flexible manner. See Wambaugh (1933), p. 4 f, commenting Wilson’s points: “His meaning appears, from the first, to have been that no change of sovereignty must be made by conquest and that such national groups as wished it should be given autonomy within the state to which they belonged.” See also Veiter (1984), p. 13, Mattern (1920), p. 176 f. As pointed out in Wambaugh (1933), p. 11, the real endorsement of the principle of self-determination took place in Wilson’s speech on 24 January 1918, in which he said, inter alia, that national aspirations must be respected, that peoples may be dominated and governed only by their own consent, and that self-determination is not a mere phrase, but an imperative principle of action, which statesmen ignore at their own peril.
9.
See Governmental Committee Report 24/1919, p. 19. In the Report, a review of foreign law was included (e.g., the Isle of Man, Guernsey and Jersey in Britain and those dominions which at that point still were a formal part of Great Britain, such as Canada, Australia, South-Africa and New Zealand, but also Iceland, which was a part of Denmark, Croatia and Herzegovina as parts of the Austro-Hungarian Empire, and Elsass-Lothringen as a part of Germany. The Committee inquired into, inter alia, the distribution of legislative powers and their substantive contents as well as into taxation powers of these entities, but found that none of them was suitable, due to differences in circumstances, as a model for the self-government of the Åland Islands. Concerning the historical example of Elsass-Lothringen (Alsace-Lorraine) as a non-federal part of Germany after 1871, see Wolff (2010), p. 18.
10.
When the Form of Government (Constitution) Act was enacted in 1919, provisions providing language rights for the speakers of Finnish and Swedish and provisions making possible general systems of self-government of a higher order were incorporated into the Constitution. The former were realized in the form of linguistic guarantees on an equal footing for both language groups, but the latter never led to anything concrete, probably at least in part for the reason that the Åland Islands were granted autonomy.
11.
The doctrine of acts of exception is based on the understanding that in the legislative life of a nation, there may, for political reasons, exist moments when such a piece of law has to be adopted which is against the formal letter of the constitution. In such situations, the parliament may, by using the same formulas as prescribed for constitutional amendments, adopt an ordinary act of parliament which is, from a material point of view, in breach with the constitution. Such an act of exception introduces limitations or adjusting specifications, embedded in an ordinary act of Parliament, that open up holes in the wall which the formal constitution creates. An act of exception can be defined as an ordinary act of Parliament through which it has been possible to accept a violation of the core meaning of a constitutional provision, provided that this ordinary act is approved by the Parliament in the manner prescribed for constitutional amendments. Hence when a Bill contains an infringement of the formal constitution in a manner that affects the core meaning of the constitutional provision in question, such an enactment can, nevertheless, be approved by the parliament as a so-called act of exception, provided that the decision is made in the manner prescribed for the adoption of constitutional amendments.
12.
In the context of legislating on self-government for the Åland Islands in 1920, the then recent Finnish experience as an entity with (relative) autonomy may be cited as an important factor conducive to the domestic recognition of the autonomy for Åland in 1920 and in 1922. The autonomous Grand Duchy of Finland was created in 1809 and codified in Article 2 of the 1906 Constitution of Russia, which concluded that “(t)he Grand Duchy of Finland, while it constitutes an indivisible part of the Russian State, is governed in its domestic affairs by special institutions on the basis of a special legislation”. Szeftel (1976), p. 84.
13.
Barros (1968), pp. 276, 310, 324, 328–329.
14.
Official Journal of the League of Nations, Special Supplement No. 3, October 1920, p. 6.
15.
Ibid., p. 12.
16.
Ibid., p. 14.
17.
The Aaland Islands Question (1921), note 26, p. 25.
18.
Ibid., p. 28.
19.
Ibid., p. 28.
20.
Ibid., p. 32.
21.
In the case of Kosovo, a different strategy was adopted. According to UN Security Council Resolution 1244/99, an international administration and substantial autonomy and self-government were instituted, with a view to reaching a final settlement of the issue in the future. The current UNMIK-led administration of Kosovo can therefore be viewed as the kind of transitory arrangement the League of Nations wished to avoid in the Åland Islands case. For a comparison between the international decisions concerning the Åland Islands and Kosovo, see Suksi (2002a). See also Suksi (2005c).
22.
The Aaland Islands Question (1921), note 26, p. 32.
23.
Ibid., p 34.
24.
The Aaland Islands Question (1920).
25.
The Aaland Islands Question (1921).
26.
The Åland Islands Agreement before the Council of the League of Nations, V. Minutes of the Seventeenth Meeting of the Council, June 27th, 1921. League of Nations Official Journal, September 1921, at 701. In para. 5 of the decision of 24 June 1921, the Council of the League of Nations established the following: “5. An international agreement in respect of the non-fortification and the neutralisation of the Archipelago should guarantee to the Swedish people and to all the countries concerned, that the Aaland Islands will never become a source of danger from the military point of view. With this object, the convention of 1856 should be replaced by a broader agreement, placed under the guarantee of all the Powers concerned, including Sweden. The Council is of the opinion that this agreement should conform, in its main lines, with the Swedish draft Convention for the neutralisation of the Islands. The Council instructs the Secretary-General to ask the governments concerned to appoint duly accredited representatives to discuss and conclude the proposed Treaty.” Hence it was the security of the State of Sweden that motivated a specific Convention. Some opinions have been presented that the Åland Islands Settlement and the Åland Islands Convention constituted a package, but at least for the Commission of Rapporteurs, it was clear that issues of autonomy and security should be kept separate, concluding in their report that “[w]e are also of the opinion that the establishment of the political status of Aaland should precede the establishment of its international status. But these are, in our opinion, two different and separate questions. […] The question of sovereignty does not need to be intermingled with that of disarmament and neutralisation. It will be solved immediately if our conclusions are agreed upon, by the maintenance of the existing status quo, in consideration of the addition of special guarantees granted to the population of Aaland. The suggested international Convention should, in our opinion, have as its sole object that of replacing and completing the Convention of Paris.” See The Aaland Islands Question (1921), p. 36 f.
27.
See Hannikainen (2004), pp. 19–21, 33–41, 47–52.
28.
References to the concept of autonomy had been included already in the 1919 Treaty of Versailles and in a number of other treaties adopted after the First World War. Hence at the level of public international law, there seemed to exist a legal understanding concerning particular jurisdictions created often for the protection of minority populations defined on the basis of ethnic, linguistic or religious characteristics.
29.
See also Suksi (2011).
30.
This Act was replaced in 1951 by an Act with the same title (SoF 671/1951), and the current law is based on the Act on the Limitation of the Right to Acquire and Possess Real Property in the Åland Islands, also entitled the Act on the Acquisition of Real Property on the Åland Islands (SoF 7/1975).
31.
In the third reading on 9 December 1921, the matter was declared urgent by the votes 153 to 23 (meaning that the Bill was not left in abeyance over the next elections for a final consideration by the subsequent Parliament), after which the law was enacted on the same day by the votes 152 to 22.
32.
See Suksi (2008c), pp. 277–279.
33.
The complaint mechanism was never used.
34.
There were plans, recorded in committee proceedings and in a Government Proposal to the Parliament in 1946, to establish a similar procedure under the United Nations. However, under the post-Second World War circumstances, the negative opinions of the Soviet Union concerning such international supervision were also of great relevance. On this, see Modeen (1973), pp. 61–76; Hannikainen (1993a), pp. 41–48.
35.
See Hannikainen (1993a), pp. 79–102. As concerns the unilingually Swedish-speaking school system in the Åland Islands and its relationship to the Finnish-speaking minority there, the Belgian Linguistics case of the European Court of Human Rights (Judgment of 23 July 1968, Ser. A, No. 6) seems to indicate that there is no such discrimination against Finnish-speaking pupils in the Åland Islands that would be prohibited under the ECHR: there would seem to exist “legitimate and objective grounds to keep the schools of the Åland Islands monolingually Swedish” at the same time as the present system would not seem to “involve disproportionality between the means employed and the aim sought”. The demilitarization and neutralization of the Åland Islands may perhaps be regarded as a so-called objective regime under international law. See also Hannikainen (1993a), pp. 103–130.
36.
On the discussion, see Hannikainen (1993b), p. 53 f.
37.
A special Act on the Purchase of Real Estate (SoF 3/1975) was enacted for the first time in 1938 (SoF 140/1938) and amended in 1951 (SoF 671/1951).
38.
However, the right of trade was not exclusively reserved for those who had the right of domicile, but regulated trades could also be carried out by persons who had had uninterrupted legal residence in the Åland Islands for 5 years.
39.
When an act of Åland is presented for the President, it is always accompanied by an opinion of the Åland Delegation.
40.
On this, see Jyränki (1995), pp. 13–15. It should be noted that there is only a limited judicial review post legem in Finland on the basis of section 106 of the Constitution.
41.
However, under section 11 of the 1991 Self-Government Act, such an act of Åland may not be used to limit the right of trade of a person residing in Åland, if no person other than a spouse and minor children are employed in the trade and if the trade is not practiced in business premises, an office or any other special place of business. Hence a non-Ålander has the right to trade, but limitations to that right may be enacted in an act of Åland.
42.
The preamble to the 1991 Self-Government Act notes that the Act has been enacted in the manner prescribed by section 67 of the Parliament (Constitution) Act and with the consent of the Legislative Assembly of the Åland Islands.
43.
See Palmgren (1997), p. 86.
44.
The important change that took place in 1975 was that under the previous law, anybody could buy real estate on the Åland Islands, but faced, in the absence of the right of domicile, the risk of the property being redeemed. However, under the 1975 Act, an advance permit by the Government of the Åland Islands is required of persons who are not in the possession of the right of domicile before they can purchase the property.
45.
See Opinion of the Supreme Court of 20 November 1971, in which the creation of a requirement of a qualified majority for the amendment of acts of Åland was deemed to be in harmony with the legislation concerning self-government. See also Suksi (2005d), pp. 473–479.
46.
Firstly, the Åland Islands would, according to the Government proposal to the negotiations, have to be allowed to maintain its legislative powers over the conditions regulating the rights to vote and to stand as a candidate in elections to the Legislative Assembly and to municipal councils, a legislative power that was, under the 1991 Self-Government Act, limited to those enjoying the right of domicile in the islands. According to the Finnish Government, the conditions for obtaining voting rights would not discriminate between Finnish citizens of mainland Finland and citizens of other Member States. Secondly, the right to acquire and hold property, the right of establishment, and the right to provide services would be restricted to natural or legal persons enjoying the right of domicile in the Åland Islands or to those authorized by the competent authorities of the Islands. Thirdly, the Government of Finland requested a permanent exemption from Community tax harmonization legislation for the Islands and the ferry traffic passing through them. Fourthly, a Protocol should include provisions that protect the rights of the inhabitants of the Åland Islands in Finland and that require the authorities of the Åland Islands to treat citizens from all Member States equally. On the accession negotiations, see Fagerlund (1997).
47.
The second and third requests of the Government of Finland were granted (the third request was accepted with a view to maintaining a viable local economy in the Islands) and the latter part of the fourth one, too, thus creating an option for a more or less permanent exception on part of the Åland Islands to the Treaties on which the European Union is founded. In the fields of harmonization of the law of the Member States on turnover taxes and on excise duties and other forms of indirect taxation the exemption may be less permanent, depending on the exemptions not having any negative effects on the interests of the Union nor on its common policies. Protocol No. 2 on the Åland Islands, Art. 2(b). See Fagerlund (1997).
48.
The first request and the first part of the fourth request were not granted. However, in Declaration No. 32 on the Åland Islands of the Final Act on the Accession by the current Member States, the Union recalls in respect of the municipal suffrage and eligibility that Article 8b TEU (since 1 December 2009, Art. 20(2-b) and Art. 22(1) of the Treaty on the Functioning of the European Union (TFEU) and Art. 40 of the Charter of Fundamental Rights of the EU) makes it possible to agree with the requests presented by Finland. According to the Declaration, if Finland declares, according to Article 227(5) ECT (after 1 December 2009, Art. 355(4) of the TFEU), that the Treaty will be applied in the Åland Islands, the Council will, within six months and according to procedures laid down in Article 8b TEU, establish the conditions on which this Article shall be applied to the special circumstances of the Åland Islands. See Fagerlund (1997).
49.
Conference on Accession to the European Union/Finland. Subject: Chapter 29: Other – Union common position on Finland's request concerning the status of the Åland Islands. Agreed by the Council at its meeting on 21 February 1994 (CONF-SF 20/94).
50.
This so-called stand-still clause means that in the area of EU law, no new exceptions may be introduced after 1 April 1994.
51.
The Ministry of Foreign Affairs should see to that all proposals by the European Commission concerning new legislative acts are forwarded to the Provincial Government at the same time as the specialized ministries shall, within their field of competence, inform the Provincial Government about matters that they are dealing with. See Government Bill 307/1994 concerning the Position of the Åland Islands in case of a Finnish Membership in the European Union, p. 10.
52.
See Government Bill 307/1994 concerning the Position of the Åland Islands in case of a Finnish Membership in the European Union, p. 11. In such cases, the position of the Åland Islands would be appended to the position of Finland so that the opinion of the Legislative Assembly would become known by the European institutions.
53.
“Any national Parliament or any chamber of a national Parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity.” From the point of view of sub-state governance, the protocol notes the existence of that level of governance, because the second sentence of the provision continues as follows: “It will be for each national Parliament or each chamber of a national Parliament to consult, where appropriate, regional parliaments with legislative powers.”
54.
See also Government Bill 77/2010 with a proposal to amend section 59a of the Self-Government Act so as to establish a mechanism through which the Legislative Assembly can participate in the so-called subsidiarity control in the EU that the national parliaments are involved in concerning proposals to enact new EU legal acts. The Parliament of Finland has already adopted the amendment proposal once, but as required by the ordinary process of constitutional amendments, the decision was left in abeyance over the next elections, after which the matter will be taken up by the next Parliament.
55.
Based on Rosas and Suksi (1996).
56.
See SAC 1991-II-3, in which the Supreme Administrative Court of Finland (SAC) concluded that the fact that the person applying for the right of domicile had moved from the Åland Islands while his application was pending was not a reason which could be used to deny his application. See also SAC 2002:92, which dealt with a family in which the husband owned a house in Mariehamn in the Åland Islands. Mariehamn was thus their place of domicile. He worked as a medical doctor at the central hospital of the Åland Islands and carried out specialization studies at the University Hospital of Turku in mainland Finland with the aim to function as a specialist at the central hospital of the Åland Islands. His wife was since 1997 employed on a regular basis by the City of Mariehamn as a teacher of Finnish. The specialization studies of the man required that he spent extended periods of time in Turku, and his wife spent longer periods of time in Turku while she was on maternity leave. The apartment in Turku was very small, 30 square meters, intended mainly for overnight stay. The Government of the Åland Islands denied the spouses’ application of the right of domicile on the grounds that they had not had their actual place of domicile in the Åland Islands without interruption during five years. The spouses applied the decision at the SAC. The SAC was of the same opinion that section 7(2) of the Self-Government Act is not clear in how it should be interpreted. The SAC inquired into the travaux preparatoires of the 1991 Self-Government Act and found that there is a connection to section 3 of the 1951 Self-Government Act. With reference to the time the spouses lived in Turku and the provisions in section 6(2) about how children acquire the right of domicile and section 8(2) about the loss of the right of domicile on other grounds than temporary relocation from the Åland Islands, the majority opinion of the SAC held that the decision of the Government of the Åland Islands was not against the law and denied the appeal. The SAC was of the opinion that the spouses had not had their actual place of domicile in the Åland Islands at least during five years in the manner to be expected under section 7(2) of the Self-Government Act. Most applications of the right of domicile are, however, granted by the Government of the Åland Islands, and the applications denied constitute normally between 1 and 10% of all applications. See Suksi (2005d), pp. 39. See also Sjölund (2009), pp. 67, 68–89, who points at unclear practices in the decision-making of the Government of the Åland Islands, indicating that the decision-making concerning the right of domicile may at times be based on arbitrary considerations not established in the law. The analysis of Sjölund also accounts for a number of court cases related to the right of domicile. See also Myntti and Scheinin (1997).
57.
On the situation in respect of the language requirement on the basis of the 1951 Self-Government Act, which did not contain such a requirement, see the so-called Oinas case, SAC 1979-I-4. In the case, the Government of the Åland Islands had denied an application of the right of domicile by a Finnish citizen on grounds that his knowledge of the Swedish language was deficient. Because the denial violated the constitutional right of equality and because there was no language proficiency requirement in the 1951 Self-Government Act, the Government of the Åland Islands could not deny the right of domicile on the grounds mentioned in the decision of the Government of the Åland Islands. The SAC therefore revoked the decision of the Government of the Åland Islands and returned the matter for a new decision-making procedure to the Government of the Åland Islands. Section 7(2) of the 1991 Self-Government Act contains the qualification of satisfactory knowledge of Swedish. See also Suksi (2005d), pp. 31–33, Sjölund (2009), pp. 60, 63, 66, 79 f., and Myntti and Scheinin (1997), p. 134 f. According to Myntti and Scheinin (1997), p. 142, “a very strict interpretation of the requirement of proficiency in the Swedish language as a prerequisite for acquiring the Ålandic right of domicile might well amount to a disproportionate limitation and unreasonable restriction of the rights guaranteed in the ECHR as well as the CCPR”, at least partly because the 1921 Åland Islands Settlement makes possible restrictions of franchise for newcomers within reasonable limits. No such complaints have been raised so far.
58.
OJ 94/C241/08.
59.
See SAC 2788/1/94 of 2 June 1995 (Docket Nr 2386), in which the SAC declared, upon concluding that the request by the applicant of a preliminary ruling from the EFTA Court was unfounded, that the requirement of equal treatment in Article 126.2.c of the Treaty on the European Economic Area (EEA Treaty) had not been violated by the Government of the Åland Islands when it declined an application for the right of domicile from a German citizen because of the lack of Finnish citizenship. On the part of the Åland Islands, the EEA Treaty contains exceptions with respect to the possession of real estate and trade, concerning which non-domiciled persons may acquire rights on the basis of administrative permits granted by the Provincial Government, which procedure must not be discriminatory, while the Treaty does not affect, inter alia, the political rights flowing from the right of domicile. For an illustrative analysis of administrative decision-making concerning the right of domicile, see Sjölund (2009). See also Suksi (2005d), pp. 32–39.
60.
According to section 67 of the Self-Government Act, as amended on 31 December 1994 (SoF 1556/94), an act of Åland enacted by a two-thirds majority in the Provincial Parliament may stipulate that a citizen of Finland without the right of domicile and citizens of Iceland, Norway, Sweden and Denmark shall be granted suffrage and be eligible for office in municipal elections on the prerequisites provided in an act of Åland and that the same rights may be given to citizens of other states. The latter part of the section is a reaction to the exception that remained unrealized in the Accession Treaty and to Article 8b of the TEU (now Art. 20(2-b) and Art. 22(1) of the TFEU and Art. 40 of the Charter of Fundamental Rights of the EU), which grants these rights to citizens of Member States in respect of municipal elections in any Member State, albeit on the basis of a Council Directive, which may contain derogations that follow from “problems specific to a Member State”. See Council Directive 94/80/EC of 19 December 1994. In an Explanatory Memorandum to a Proposal for a Council Directive (COM(95) 499 Final/11.01.1996) amending the above mentioned Council Directive on municipal elections, the EC Commission points out that “(s)ince a period of residence, irrespective of nationality, is required of all those that do not have the right of domicile it can be concluded that there is no discriminatory treatment incompatible with article 8B (1) of the EC Treaty, between Finnish citizens and other EU nationals as regards to the right to vote and to stand in municipal elections. No specific conditions are therefore necessary to apply article 8B (1) to the Åland islands”. According to Ålandic law, citizens of the EU have the right to vote in municipal elections after one year of residence. Please note that the elections to the Legislative Assembly are not covered by the EU law on municipal elections.
61.
See SAC 3941/1/94 of 2 June 1995 (Docket Nr 2385), in which the SAC concluded that a decision by the Government of the Åland Islands, with which it had denied the application of a company resident in Sweden to possess real estate in the Åland Islands, was not discriminatory in respect of companies in other EEA countries. The ruling dealt with the application of Article 126 of the EEA Treaty and section 2 of the Land Acquisition Act. A similar regulation is found in Article 1 of Protocol No 2 on the Åland Islands of the Act concerning the Conditions of Accession and the Adjustments to the Treaties on which the Union is Founded (OJ 94/C241/08), attached to the 1994 Treaty of Accession, inter alia, of Finland to the European Union. (Williams) 2009, p. 123, concludes that there is “no inherent conflict between the local restrictions on land acquisition that Finland has obligated itself to upholding in the context of Åland’s autonomy, on one hand, and the human rights of individuals interested in selling, purchasing, inheriting or bequething such land, on the other”. Williams also finds that “the existing restrictions on land acquisition are proportional to legitimate government aims and avoid placing an excessive burden on the individuals they negatively impact”. For an analysis of praxis concerning administrative decisions by the Government of the Åland Islands on permits to purchase real property, see Suksi (2005d), pp. 326–336. The idea to restrict ownership of real estate in 1921 was probably of a mainland Finland provenance, conceived by Swedish-speaking Finns as one means to protect the traditional Swedish-speaking areas. The idea was, however, not realized in mainland Finland. See von Bonsdorff (1950), pp. 41–46, Suksi (2008c), pp. 73–75.
62.
Under the provision, the right of trade is not exclusively tied to the right of domicile, but dependent on an act of Åland, which, however, shall not limit the right of trade of a person residing in the Åland Islands, if no staff except his spouse and minor children is used in the trade and if the trade is not practiced in business premises, an office or another special place of business. A similar regulation is found in Article 1 of Protocol No 2 on the Åland Islands of the Act concerning the Conditions of Accession and the Adjustments to the Treaties on which the Union is Founded (OJ 94/C241/08), attached to the 1994 Treaty of Accession of, inter alia, Finland to the European Union. For an analysis of praxis concerning administrative decisions by the Government of the Åland Islands on permits to purchase real property, see Suksi (2005d), pp. 336–341.
63.
See the Act of Åland on the Right of Domicile (SoÅ 2/1993), according to which a person who during five years has been permanently resident outside of the Åland Islands forfeits his or her right of domicile.
64.
For a legal-historical account of how the right of domicile was introduced into the 1951 Self-Government Act, see Spiliopoulou Åkermark (2009), pp. 19–37, Sjölund (2009), pp. 55–66. As concerns the exceptions granted at the Finnish and Ålandic membership in the EU to the Åland Islanders on the basis of Protocol 2, it is unclear whether the negotiators on the part of the EU (of the Government of Finland, for that matter) understood or were aware of the fact that the right of domicile (that is, the regional citizenship) is actually not based on the 1921 Åland Islands Settlement and is thus not directly presupposed by the particular status of the Åland Islands under international law, but has instead been created in domestic law.
65.
Spiliopoulou Åkermark (2009), p. 37, Lindbäck (2009), p. 140. For such an assessment, see Suksi (2008c).
66.
Such a construction with a military governor paired together with a civilian one as the representative of the State was probably necessitated by the military interest showed by, inter alia, Germany and Sweden towards the Åland Islands. See also Report of the Commission of Rapporteurs to the Council of the League of Nations 1921, p. 71, where it is pointed out that the special nature of the Province was due to the fact that there was also a military governor in the Special Province. Concerning an analysis of the Province of Åland, see Westerlund (1993), pp. 313–322.
67.
Suksi (2005d), p. 16 f.
68.
The Finnish- and Swedish-language original versions of the Self-Government Act use the term ‘väestö’ and ‘befolkning’, respectively, to collectively identify the inhabitants of the Åland Islands, while the unofficial translation of the Self-Government Act uses the term ‘people’, which is not quite correct.
69.
The State Audit Office, which is functioning under the authority of the Parliament of Finland and is empowered generally to oversee any public or private spending that concerns funds paid over the state budget, is not empowered to exercise its control powers to the funds that are paid to the budget of the Åland Islands as the equalization amount. This budgetary independence of the Åland Islands in respect of state funds transferred as a lump sum does not mean that there is no control: there is a separate Audit Office within the Government of the Åland Islands.
70.
Section 48: “An extraordinary grant may be given on the proposition of the Åland Parliament for particularly great non-recurring expenditures that may not justifiably be expected to be incorporated in the budget of Åland. An extraordinary grant may only be given for purposes within the competence of Åland.” Such extraordinary grants are rare, and two examples are known, namely the building of a vocational school in hotel and restaurant activities and an electricity project in the Åland Islands.
71.
Section 49: “If the income and property tax levied in Åland during a fiscal year exceeds 0.5 per cent of the corresponding tax in the entire country, the excess shall be retributed to Åland (tax retribution).” In this way, it is guaranteed that the money raised in the Åland Islands by way of state taxation is not used for funding state activities in mainland Finland. In 2009, the tax retribution paid back over the state budget to the budget of the Government of the Åland Islands was 24 m€, which is around 15 per cent of the equalization amount of 164 m€ and around 8 per cent of the total budget on 305 m€ of the Government of the Åland Islands. See Landskapsregeringens berättelse (2010), pp. 232–233.
72.
Section 51: “Åland shall be subsidised from State funds in order to (1) prevent or remove substantial economic disorders that affect especially Åland and (2) cover the costs of a natural disaster, nuclear accident, oil spill or another comparable incident, unless the costs are justifiably to be borne by Åland.” One example of such a special subsidy is known. In 2004, the Åland Delegation decided to give a special subsidy to the Åland Islands for a reserve generator for the production of electricity.
73.
Because the state income tax is progressive, earners of high income pay a greater proportion in the proportional state income tax and a smaller proportion in the municipal tax, while earners of low income mainly pay municipal tax and only little state income tax.
74.
In this respect, it is should be noted that although Protocol 2 concerning the Åland Islands to the Finnish EU Accession Treaty makes an exception concerning the Åland Islands concerning indirect taxes and thus creates the position for the Åland Islands of a third country in the EU as concerns indirect taxation, the legislation that formulates.
75.
The deduction of the new state loans from the state income has been motivated by the fact that the Government of the Åland Islands can take up loans in its own name under section 50 of the Self-Government Act.
76.
According to section 47, the basis for equalisation shall be altered if the bases for the State final accounts change in a manner that has a considerable effect on the amount of equalization. According to section 47(3), the basis for equalization shall be raised if (1) the expenditures of Åland have increased because administrative duties of the State have been transferred to Åland, or because Åland by agreement with the State pursues in full or for a considerable part an activity that is in the interest of the State, (2) the realization of the purposes of autonomy causes substantial additional expenditures, or (3) other significant expenditures which have not been taken into account when enacting this Act are caused to the Åland administration. Conversely, the basis for equalization shall be lowered if administrative duties of Åland have been transferred to the State and the expenditures of Åland have hence decreased. The alteration of the basis for equalization shall be provided by an Act of Parliament with the consent of the Legislative Assembly of the Åland Islands. So far, the amount of equalization has not, however, been changed.
77.
See Suksi (2005d), p. 153.
78.
The self-governing entity of the Åland Islands is also a legal person, and as provided in section 66 of the Self-Government Act, this legal entity shall have the same right of exemption from taxes and of comparable benefits as the State.
79.
However, it should be noted that prosecution in criminal matters is a state function, while criminal investigation is mainly a task of the Åland Islands Police.
80.
For an English-language version of the Charter of Autonomy, see http://www.michie.com/puertorico (accessed on 30 January 2009). For an exposé of the autonomy charter, see Trías Monge (1997), pp. 11–15.
81.
It seems as if there was a plan to elevate the entrenchment status of the charter, because the amendment formula of the charter was phrased in a relatively demanding manner: “When the present Constitution shall be once approved by the Cortes of the Kingdom for the islands of Cuba and Puerto Rico, it shall not be amended except by virtue of a special law and upon the petition of the insular parliament.” This means that a special statute was envisioned and that the initiative for the enactment would come from the Legislative Assembly of Puerto Rico. For characterizations of the Spanish autonomy charter, see also Trías Monge (2001), pp. 230 f., and Trías Monge (1997), pp. 13–15, 164.
82.
Treaty of Peace, concluded at Paris December 10, 1898 and ratified in 1899. Treaties, Conventions, International Acts, Protocols and Agreements between the United States of America and Other Powers 1776–1909, 1910, pp. 1690–1696.
83.
See Rivera Ramos (2007), p. 129, who accounts for an opinion of the Attorney General of the United States, given as testimony in 1991 before a US Senate committee.
84.
Duffy Burnett and Marshall (2001), pp. 4–6.
85.
For a complete list of the 23 insular cases, see note 1 in Duffy Burnett (2001), p. 390 f. For a deep analysis and criticism of the cases, see Rivera Ramos (2007), pp. 73–142, Torruella (2007), pp. 283–347, and Duffy Burnett (2005), pp. 797–879. See also Rosselló (2005), pp. 148–180, and Trías Monge (1997), pp. 44–51.
86.
Downes v. Bidwell, 182 U.S. 244, at pp. 341–342 (concurring opinion of Justice White). The rationale of “foreign in a domestic sense” is, however, variable and applies differently in respect of different pieces of law. For instance, whether an appellant’s conviction in a Puerto Rican court for the possession of marijuana was a “foreign” or “domestic” conviction for the purposes of affecting the provisions concerning the purchase of firearms in mainland USA, the court of appeals considered it not foreign, but domestic. Attempts to buy firearms by claiming that the appellant had never been convicted in a domestic court of law for a crime that carried a jail sentence exceeding one year was therefore deemed as unlawful conduct. See United States v. Marco Laboy-Torres, 3rd Circuit, 29 January 2009.
87.
182 U.S. 244, at p. 770.
88.
Downes v. Bidwell, p. 282 at 785.
89.
Freedom of religion and conscience, right to personal liberty and individual property, freedom of speech and of the press, access to justice, due process, equal protection, immunities from unreasonable searches and seizures as well as cruel and unusual punishments, and such other immunities as are indispensable to a free government.
90.
Right to citizenship, right to suffrage, right to the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence and some of which have been held by the states to be unnecessary to the proper protection of individuals.
91.
The “American understanding of fairness”, is mentioned in Small v. United States, 544 U.S. 385 (2005), at 389, because the fundamental provisions of the US Constitution guarantee fairness apply with equal force in Puerto Rico. The examples mentioned in United States v. Marco Laboy-Torres (3rd Circuit, 29 January 2009) are “Posadas de Puerto Rico Associates v. Tourism Co. of P. R., 478 U.S. 328, 331 n.1 (1986) (citing Balzac v. Porto Rico, 258 U.S. 298, 314 (1922) (First Amendment Free Speech Clause); Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 668–69, and n.5 (1974) (Due Process Clause of the Fifth or Fourteenth Amendment); Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. 572, 599–601 (1976) (equal protection guarantee of the Fifth or Fourteenth Amendment); Torres v. Puerto Rico, 442 U.S. 465, 471 (1979) (Fourth Amendment))”.
92.
In Califano v. Torres, 435 U. S. 1, 435 U. S. 4 n. 6 (1978), the US Supreme Court assumed, without deciding on the issue, that the constitutional right to travel extends to the Commonwealth. See also Rivera Ramos (2007), p. 212 f., who in addition makes the point that rights which Congress creates by act as federal entitlements apply in Puerto Rico.
93.
Examining Board of Engineers, Architects and Surveyors v. Flores de Otero, 426 U.S. at 600 n. 30 (describing the Insular Cases and explaining that “only ‘fundamental’ constitutional rights were guaranteed to the inhabitants” of Puerto Rico).
94.
Balzac v. the People of Porto Rico, 258 U.S. 298, 343 (Sixth Amendment). See Thornburgh (2007), pp. 51–55, for criticism of the Balzac case and the unequal situation of Puerto Ricans on the basis of a statutory citizenship. It should be mentioned that Art. II, Sect. 11, of the Constitution of Puerto Rico guarantees the right to trial by jury.
95.
Thornburgh (2001), pp. 357–359, 367. See also Rivera Ramos (2007), p. 177.
96.
However, it seems that federal law is, generally speaking and in practice, uniformly applied to Puerto Rico in the same way as to the constituent states. See below, the section concerning the distribution of powers.
97.
114 U.S. 15, at 747.
98.
101 U.S. 129, at 133. The following was said in the case concerning the plenary powers of Congress: “In the organic Act of Dakota there was no express reservation of power in Congress to amend the Acts of the territorial Legislature, but none was necessary. Such a power is an incident of sovereignty, and continues until granted away. Congress may not only abrogate laws of the territorial Legislatures, but it may itself legislate directly for the local government. It may make a void Act of the territorial Legislature valid, and a valid Act void. In other words, it has full and complete legislative authority over the People of the Territories and all the departments of the territorial governments. It may do to the Territories what the People, under the Constitution of the United States, may do for the States.” In a summary of this case concerning the power of Congress to legislate for Territories, that is, concerning the nature of the plenary powers of Congress, it is said that Congress may legislate for Territories as a State does for its municipal organizations.
99.
Act July 3, 1950, c. 446, 64 Stat. 314. The jurisdictional determination of the Federal Relations Act, as included in US Code, Title 48, Chapter 4, Sect. 731. Territory included under name Puerto Rico, lays down that “[t]he provisions of this chapter shall apply to the island of Puerto Rico and to the adjacent islands belonging to the United States and waters of those islands; and the name Puerto Rico, as used in this chapter, shall be held to include not only the island of that name, but all the adjacent islands as aforesaid”. It deserves to be emphasized that the Federal Relations Act and Public Law 600 are two different pieces of law. Trías Monge 1997, p. 44, points out that the Foraker Act has actually never been repealed in toto: “Although parts have been repealed, some of its sections live to this day as part of the Federal Relations Act.”
100.
Thornburgh (2001), pp. 358, 367.
101.
Thornburgh (2001), p. 367. See also Thornburgh (2007), pp. 51–55 for criticism of the unequal citizenship construction in the Balzac case. Rivera Ramos (2007), p. 99, refers to a second-class citizenship when analyzing the U.S. citizenship of the Puerto Ricans. On the citizenship issue, see also Rivera Ramos (2007), pp. 145–189.
102.
Thornburgh (2001), p. 367. See also Thornburgh (2001), pp. 359–371, explaining how the federal government considers invalid such attempts to renounce U.S. citizenship that purport to establish an independent Puerto Rican citizenship for an individual. An attempt to extract recognition for a local citizenship that is independent from U.S. citizenship (and that also could have qualified for eligibility in Puerto Rican elections as “citizen of Puerto Rico”) was refused by a federal court. See Alberto O. Lozada Colon v. U.S. Department of State, 2 F.Supp.2d 43 (D.D.C., 23 April 1998). Thornburgh (2001), p. 361: “While Puerto Rico has powers of local government which in some respects are like the states to the extent consistent with federal law and the U.S. Constitution, Puerto Rico does not have the sovereignty or constitutional authority to ignore the Supremacy Clause of the federal Constitution by creating a separate nationality.” Nonetheless, according to Thornburgh (2001), p. 365, the Supreme Court of Puerto Rico has ruled, evidently without effect, that citizenship of Puerto Rico “constitutes a form of citizenship superior to that of citizenship of a state of the Union”. Thornburgh denies that this could be the case and implies actually the opposite instead.
103.
See Decree No. 7347 of 1 May 2007 by the Department of State of Puerto Rico on the evaluation and granting of certificates of citizenship of Puerto Rico (Reglamento del secretario de estado num. 7347 para regir el proceso evaluación y otorgamiento de certificados de ciudania Puertorriquena). The legal basis for the decree is the Law No. 3 of 1 February 1906, the Foraker Act, the Federal Relations Act, and the Constitution of Puerto Rico, all as amended.
104.
Ramirez de Ferrer v. Mari Brás, Supreme Court of Puerto Rico, No. CT-96-14 (18 November 1997). See also Rivera Ramos (2007), pp. 174–175. If Puerto Rico were to become independent, there exist different interpretations of whether or not the US Congress could divest the Puerto Rican citizens of their US citizenship.
105.
See Suksi (1993), p. 68 (with references included therein) and p. 73 (citing Santo v. State, 2 Iowa 164(1855), according to which an Act dependent on a contingent event, such as approval in a referendum, could not, without amendments to the state constitution replace the law-making process prescribed by the constitution).
106.
See Diario de sesiones de la convencion constituyente de Puerto Rico, 1951 y 1952, 2003.
107.
Concerning the constitution-making process, see Trías Monge (1997), pp. 113–118, and Rosselló (2005), pp. 212–213. It may be said that in the Mari Bras case, the Supreme Court of Puerto Rico attempted to exercise a pouvoir constituant of some kind, that is, a claim of constituent powers of Puerto Rico as a root of its own law-making powers or at least to create a starting point for such an argument, perhaps specified in future rulings. The Mari Bras ruling is still good law and constitutes a platform for issuing residence certificates for the citizens of Puerto Rico, although the case did not constitute such a Puerto Rican citizenship which is separate and independent from US citizenship. Interestingly, in Thornburgh (2007), pp. 87–92, it is indicated that the federal courts could, if Congressional action is not forthcoming, correct the (by modern standards) erratic Balzac case and recognize voting rights in federal elections to Puerto Ricans. However, the right to vote in federal elections is actually a right controlled by the constituent states.
108.
See Report by the President’s Task Force on Puerto Rico’s Status, December 2007, at http://www.usdoj.gov/opa/documents/2007-report-by-the-president-task-force-on-puerto-rico-status.pdf (accessed on 26 March 2009), which reiterates the position of a similar report from 2005 in which the US executive branch concluded that Puerto Rico is a territorial possession (in fact, property) of the United States and could be disposed of without further consultation.
109.
The use of the term “Commonwealth” is not without historical precedence, because the constitutions of Massachusetts, Pennsylvania, Virginia and Kentucky identify these constituent states of the US as commonwealths. They are, however, regular states in the federation since 1789, whereas Puerto Rico is not a state. The eighteenth century use of the term may be explained by the wish of the two entities to distance themselves from the State, that is, the British Empire, when drawing up their constitutions and to indicate a political existence on a new footing, perhaps in the form of a compact, recorded in the constitutions, between their respective inhabitants.
110.
The terminological choices in the Spanish and the English versions were those of the constitutional convention. See Resolution No. 22 of Constitutional Convention: To determine in Spanish and in English the name of the body politic created by the Constitution of the people of Puerto Rico, of 4 February 1952, in which the specific point was made that “Estado Libre Asociado” is equivalent to and an appropriate translation of the English word “commonwealth”. The Spanish-language terminology is therefore not necessarily an equivalent of the term “free association” in the decolonization context of the international politics and international law in the 1960s.
111.
A compact or covenant was used as a background assumption on several occasions when state constitutions were enacted during the latter part of the eighteenth century. See Suksi (1993), pp. 56–58, 69–74, and Elazar (1998), pp. 7 f.,19, 24, 26, 75–98, 108–112, 179, 194, 248, 259, 263, 265, 266–270.
112.
See Public Law 447, 82d Congress: Joint Resolution approving the Constitution of the Commonwealth of Puerto Rico which was adopted by the people of Puerto Rico on March 3, 1952.
113.
See also Smith (2001), p. 382, who makes a similar point with reference to the compact. However, the notion of a genuine compact is very problematic and very much disputed. See, e.g., Rosselló (2005), pp. 214–217.
114.
See also Smith (2001), p. 382, who argues that the compact requiring that changes occur only with the agreement of both U.S. and Puerto Rican authorities actually “perpetuates a U.S. veto power over Puerto Rican decisions to alter their internal governing arrangements”.
115.
Thornburgh (2007), p. 16 f. The supremacy clause contains three different standards for federal preemption of the legislative powers of states, namely express preemption, field preemption and conflict preemption. See The Constitution of the United States of America – Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002 (2004), pp. 261–271. See also Rotunda and Nowak (1999), pp. 199–231.
116.
See Thornburgh (2001), p. 361: “Puerto Rico’s local sovereignty is a statutory delegation of the authority of Congress to govern territories, and is not a vested, guaranteed, or permanent form of sovereignty like the states have under the Tenth Amendment.” Also Trías Monge (1997), pp. 112–113, 115 f, makes the point that when the US Congress chose the compact construction, its intention was never to alter the basis of the relationship of Puerto Rico to the United States under the US Constitution. See also Thornburgh (2007), p. 17, Neuman (2001), pp. 194–196, Alvarez-Gonzales (1991), pp. 21–42 (giving some judicial evidence on the existence of an autonomy arrangement based on a mutual compact), and Trías Monge (2001), p. 238, who, however, refers to the case of Figueroa v. People, 232 F.2d 615 (1956) that rejects the complete sovereignty of Congress and agrees to the compact construction by saying that the Constitution of Puerto Rico is not just another Organic Act of the Congress (and makes the point that to argue otherwise would be to accuse the US Congress of fraud; the court found that”[w]e find no reason to impute to the Congress the perpetration of such a monumental hoax”.). A similar Puerto Rican point, raising ultimately the question of the pouvoir constituant or the independent constitution-making powers of Puerto Rico, was inherent in the case of Ramirez de Ferrer v. Mari Brás, Supreme Court of Puerto Rico, No. CT-96-14 (18 November 1997), in which the local supreme court detached the local citizenship of Puerto Rico from the U.S. citizenship. See Smith (2001), p. 381, who makes the point that the case was not correctly argued.
117.
United States v. Rafael Sanchez and Luis Sanchez, 992 F.2d 1143 (1993). The case was decided by the 11th Circuit, which is not the federal appeals court to which Puerto Rico belongs. Instead, Puerto Rico is under the 1st Circuit, which has viewed the matter differently (see infra, notes 118–120 in this Chap.).
118.
302 U.S. 253, at p. 260, 261.
119.
831 F.2d 1164 (1st Circuit, 1987).
120.
However, the dual sovereignty construction was criticized by Judge Torruella in his concurring opinion (later followed in the case of United States v. Rafael Sanchez and Luis Sanchez, 992 F.2d 1143 (1993), supra note 117 in this Chap., because Puerto Rico is not sovereign in the same way as a state is, but instead dependent in the exercise of its legislative powers on the sovereignty of Congress. From that perspective, the plenary powers of Congress could also be interpreted so as to make the federal and Puerto Rican norms one legal order, with the sovereign Congress at the top, in which an aborted prosecution by Puerto Rican authorities preclude a new prosecution by federal authorities. This is, however, not the actual situation.
121.
See also US Code, Title 48, Sect. 734.
122.
Apparently, the concept of “not locally inapplicable” has historical roots in incorporation legislation that Congress enacted for new territories, such as Utah and Hawaii. The phrase was used expressis verbis in section 5 of Organic Act to Provide for a Government for the Territory of Hawaii of 30 April 1900 (C 339, 31 Stat 141), that is, the same year as the Foraker Act was enacted: “[…] the Constitution, and, except as otherwise provided, all the laws of the United States, including laws carrying general appropriations, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States […].” The phrase was also used for, e.g., Oklahoma and Wisconsin. Hence the doctrine of distribution of powers between the federation and different territories, incorporated or unincorporated, was muddled from the very beginning, but acceptable probably because it was anticipated that it would not remain in force very long. The phrase was also used in section 1891 of the Revised Statutes of 1878. See Rivera Ramos (2007), p. 89 f., as well as Duffy Burnett (2005), pp. 825–827 (and footnote 129 on p. 826), who thinks that Puerto Rico was, in 1898, implicitly exempted from the application of the US Constitution and Sect. 1891 of the US Revised Statutes, not explicitly, as the Philippines. See also Cordova & Simonpietri Insurance Agency Inc. v. Chase Manhattan Bank N.A., 649 F.2d 36, footnote 34 (1981), for a historical exposé of the phrase, where a link to the so-called “compromise of the thirteen” in 1950 is made.
123.
It seems, however, that some of the exceptions have been revoked later, in particular, in the area of corporate taxation.
124.
See Trías Monge (2001), p. 233. The point is made by Rivera Ramos (2007), p. 223, in the following way: “Thus, a regime of internal democracy coexists with a system of undemocratic colonial subordination.”
125.
See UN GA Res. 748 (VIII) of 27 November 1953. In the decision, the UN General Assembly concludes that the people of Puerto Rico has achieved a new constitutional status. The General Assembly also recognized that, “in the framework of their Constitution and the compact agreed upon with the United States of America, the people of the Commonwealth of Puerto Rico have been invested with attributes of political sovereignty which clearly identify the status of self-government attained by the Puerto Rican people as that of an autonomous political entity”. This was decided in spite of the fact, reported in Thornburgh (2007), p. 17, that “[i]n advance of the vote in the United Nations adopting Resolution 748, the United States circulated to the General Assembly a legal memorandum stating that the precise legal and political nature of Puerto Rico’s ‘commonwealth’ was subject to the supremacy of federal law as ‘interpreted by judicial decision’ of U.S. courts.” See also Thornburgh (2007), p. 62 f., as well as Trías Monge (1997), p. 124 f., according to whom the US opposed the paragraph in the resolution in which the General Assembly affirmed its competence to decide whether a Non-Self-Governing Territory has or has not attained a full measure of self-government, but lost in the vote.
126.
For an account of the issue of Puerto Rico before the United Nations, see Trías Monge (1997), pp. 136–140, Carr (1984), pp. 339–365, Rosselló (2005), pp. 85–98, and Thornburgh (2007), pp. 17, 61–69. For relevant UN committee resolutions, see also Blaustein (1991), pp. 203–234. For an interesting discussion in the United Nations in 2008, bringing the internal differences on status to the UN bodies and problematizing the predominant focus of the UN on independence, see Statement by Hon. Kenneth D. McClintock, President of the Senate of Puerto Rico, before the UN Special Committee on the Situation with Regard of the Declaration on the Granting Independence to Colonial Countries and Peoples, 9 June 2008 at the United Nations Headquarters in New York.
127.
Rivera Ramos (2007), p. 221 f. As pointed out by Rivera Ramos (2007), p. 225, “Congressional refusal to increase Puerto Rican participation in federal legislation or to grant a greater degree of autonomy than is now vested in the Puerto Rican government, absent a substantial change in the political status of the island, is grounded in the view that Congress may not relinquish its plenary powers over Puerto Rico as long as the latter remains unincorporated territory of the United States”. This means that avenues indicated by the US Constitution must be used to move Puerto Rico from the ambit of the territorial clause to some other existence in conjunction with the United States.
128.
However, as pointed out by Thornburgh (2001), p. 365, citizenship independent of that of the United States is “an essential characteristic of the status option of independence; it does not exist under the other two options that may be presented to the voters of Puerto Rico”. If independence really was an option in the context, it could be effectuated by means of the pouvoir constituant, that is, by means of exercising the constituent powers through adopting an independent constitution for an independent country, on the basis of which the sovereignty of the new state and its legislative powers are based. After the establishment of sovereignty, the new sovereign state would, of course, be at liberty to, for instance, conclude a treaty of association with the United States. As maintained in Rosselló (2005), p. 272, by way of analogy, the issues in Quebec is whether to get out of Canada, while in Puerto Rico, the issue is whether to team up totally with the United States.
129.
Several proposals from Puerto Rico or the Resident Commissioner of Puerto Rico to adopt Puerto Rico as a state in the federation have been placed with the US Congress during the period of US rule over Puerto Rico, and the matter has been supported also by, inter alia, several US Presidents and congressional bills, but to no avail. See Rosselló (2005), pp. 218–228, 242.
130.
As explained in Thornburgh (2001), p. 365, the Puerto Rican judiciary has probably attempted such maneuvers without constitutional basis when ruling that the citizenship of Puerto Rico constitutes a form of citizenship superior to that of citizenship of a state of the Union. However, he also is of the opinion that a “territory with a local commonwealth constitution authorized by an act of Congress (P.L. 81–600) does not have greater sovereignty than a state of the Union”.
131.
A provision similar to that in Art. 120 of the Finnish Constitution could be possible: “Puerto Rico will be governed under a special statute, specifying the legislative powers which the Legislative Assembly of Puerto Rico is exercising independently according to the Constitution of Puerto Rico” (Sect. 4.2.4).
132.
That the federal government remains seized by the matter is obvious on the basis of Executive Order No. 13183 of 23 December 2000 (65 F.R. 82889, as amended by Ex. Ord. No. 13209, Apr. 30, 2001, 66 F.R. 22105; Ex. Ord. No. 13319, Dec. 3, 2003, 68 F.R. 68233) on the Establishment of the President’s Task Force on Puerto Rico’s Status: “Section 1. Policy. It is the policy of the executive branch of the Government of the United States of America to help answer the questions that the people of Puerto Rico have asked for years regarding the options for the islands’ future status and the process for realizing an option. Further, it is our policy to consider and develop positions on proposals, without preference among the options, for the Commonwealth’s future status; to discuss such proposals with representatives of the people of Puerto Rico and the Congress; to work with leaders of the Commonwealth and the Congress to clarify the options to enable Puerto Ricans to determine their preference among options for the islands’ future status that are not incompatible with the Constitution and basic laws and policies of the United States; and to implement such an option if chosen by a majority, including helping Puerto Ricans obtain a governing arrangement under which they would vote for national government officials, if they choose such a status.” For those ends, the President’s Task Force on Puerto Rico’s Status was established, with the task to “seek to implement the policy set forth in section 1 of the order. It shall ensure official attention to and facilitate action on matters related to proposals for Puerto Rico’s status and the process by which an option can be realized. It shall provide advice and recommendations on such matters to the President and the Congress. It shall also provide advice and recommendations to assist the Executive Office of the President in fulfilling its responsibilities under Public Law 106–346 to transfer funding to the Elections Commission of the Commonwealth of Puerto Rico for public education on and a public choice among options for Puerto Rico’s future status that are not incompatible with the Constitution and the basic laws and policies of the United States.” The Task Force shall report on its actions to the President as needed, but no less frequently than once every 2 years, on progress made in the determination of Puerto Rico’s ultimate status. The US Government is hence at least in principle involved in a dynamic process with Puerto Rico concerning Puerto Rico’s future status, something which is also referred to by the U.S. Supreme Court in the case of Reid v. Covert, 354 U.S. 1, at 15 (1957), where the status as unincorporated territory is viewed through the Insular Cases and described as a temporary form of territorial government and which is also expounded in Trías Monge (1997), pp. 125–135. See Thornburgh (2001), p. 368, who adds that this temporary nature continues “until full integration or independence is achieved through the constitutional process of self-determination”, and Thornburgh (2007), p. 18, who requires action by Congress for a political resolution of the matter. However, Trías Monge (1997), p. 51, is of the opinion that under the territorial clause, Puerto Rico could be held and governed indefinitely. Concerning the dynamic nature of the issue, see also Duffy Burnett and Marshall (2001), pp. 18–23, Jiménez Polanco (1998), pp. 106–115.
133.
See Thornburgh (2001), pp. 351–359, and Rosselló (2005), pp. 248–261. See also Trías Monge (1997), p. 170, who says that “[s]overeignty, like the atom, can be split”, thereby confirming the point of departure in our study.
134.
President Karume was then leader of the Afro-Shirazi Party, which was the driving force behind the revolution on 12 January 1964 and which was made into the only party in Zanzibar through the Afro-Shirazi Party Decree, Decree No. 11 of 1965. The revolution of Zanzibar took place at the height of the cold war, and therefore, as explained in Shivji (2008), p. 55 ff., 101–107, 243 f., the Union issue also has connections to the world politics of that time. The suspicion in the West was that the East was in the process of making Zanzibar into the Cuba of Africa and therefore, the West was in support of Tanganyika and the Union.
135.
See, e.g., Dourado (2006), p. 73 f. It is maintained by Shivji (2008), p. 98, that a majority of the members of the Revolutionary Council of Zanzibar would have been opposed to the union with Tanganyika, hence president Karume was hard pressed to act in disregard of the requirement of the law.
136.
See, e.g., Othman (2006), pp. 51–54. For a detailed analysis, see also Shivji (2008), pp. 76–82.
137.
See, e.g., Khamis Bakary (2006), p. 4 f. It seems that the Articles of Union have not been deposited with the United Nations Treaty Series.
138.
In Tanganyika, the Act to ratify the Articles of Union was enacted on 25 April 1964, number 22 of 1964.
139.
Khamis Bakary (2006), p. 24: “Hence the Revolutionary Government of Zanzibar is subordinate to no other power, body or organ of state. Thus Zanzibar is and shall remain a sovereign state, and shall exist as an integral part of the United Republic of Tanzania, in accordance with the terms and conditions stipulated in the Articles of Union between the State of Zanzibar i.e Peoples Republic of Zanzibar and the Republic of Tanganyika.”
140.
See Cole and Denison (1964), p. 1512, who state that “a Law to ratify the Articles of Union between the two countries, entitled the Union of Zanzibar and Tanganyika Laws, 1964, was passed in Zanzibar and published as Government Notice No. 243 in the Gazette of the United Republic of Tanganyika and Zanzibar on May 1, 1964”. However, according to Khamis Bakary (2006), p. 7 f., no Act to ratify the Union is to be found in the statute book or the official gazette of Zanzibar, that no such legislative decision has been taken, and that there hence has been no ratification on the part of the People’s Republic of Zanzibar. Because the basic requirement of ratification of Art. viii of the Articles of Union was not adhered to, the Union is said to have no legal basis. Dourado (2006), p. 76, explains that he was Attorney General of Zanzibar at the material time and that the normal procedure of requesting the legal advice of the AG was not followed when the law to ratify the Articles of Union, 1964 was enacted. However, Othman (2006), p. 51 f., advances the opinion that the Articles of Union was ratified by both the Tanganyika National Assembly and the Revolutionary Council of Zanzibar, because two persons who were in the Revolutionary Council at the time have confirmed that the matter was discussed in the council, during which discussion opinions against the Union were quashed. According to Othman, the union agreement is valid in law. Shivji (2008), p. 92, is of another opinion: “The inescapable conclusion, therefore, is that the Union of Tanganyika and Zanzibar Law, 1964, which purports to be the law ratifying the Articles, was never made by the body invested with legislative capacity in and for Zanzibar, and that the body, the so-called Supreme Authority, which purported to make the Law did not have the legislative capacity to make it since the Supreme Authority was superseded once it made the Legislative Powers Law. (…) [T]he law thus made should have been signed by all the members of the Revolutionary Council as was done in the case of the Legislative Powers Law, 1964. It was not.” In spite of the legal problems, Shivji (2008), p. 93, arrives at a similar conclusion as Othman: “The notification that such a law had been made by the ‘Revolutionary Council of Zanzibar in conjunction with the Cabinet of Ministers thereof’ was simply untrue. Thus, the relevant Zanzibari authorities did not ratify, in law and in fact, the Articles of Union. Whether the non-ratification affects the legal validity and political legitimacy of the Union some forty years later is a different matter (…).” See also Shivji (2008), p. 248.
141.
For an argument from the point of view of quiet passive assent, see Khamis Bakary (2006), p. 8 f.
142.
Article vii created a procedure for constitution-making for the entire state according to which a commission would be adopted to make proposals for a constitution for the United Republic, after which a constituent assembly would be summoned within 1 year from the commencement of the union so that the assembly would contain representatives of both Tanganyika and Zanzibar. No such constituent assembly has ever been called together. See Shivji (2008), pp. 108 f., 163–170.
143.
For instance, the constituent assembly that adopted the 1977 Constitution of Tanzania was the regular Parliament that turned itself into a constituent assembly. For a detailed account of this issue, see Shivji (2008), pp. 163–170, which concludes that the establishment of one party was the single most significant and decisive moment in the loss of Zanzibar’s autonomy at the same time as the 1977 Constitution of Tanzania was enacted in utter breach of the Articles of Union. See also Shivji (2008), p. 172, who makes the point that the single authority of the party made nonsense of the principle of distribution of power between two legislatures and two executives, which he understands to be the core of the federal principle underlying the Articles of Union and the basis of Zanzibar’s autonomy. “Zanzibar was left with a shell of autonomy while the substance was drained away.”
144.
See, e.g., Dourado (2006), p. 82, who characterizes this instance of constitution-making on 11 July 1965 that led to the enactment of the, actually second, Interim Constitution of Tanzania as a breach of the treaty obligations contained in the Articles of Union. According to Dourado 2006, p. 82 f., the Interim Constitution of 1965 “was passed in order to implement the recommendations of the Presidential Commission on the One-Party State”. See also Shivji (2008), p. 125, who points out that “[t]he Act was passed by a special majority under Section 35 of the then existing ‘interim constitution’; thus it was treated as a constituent act”. Shivji continues by saying that “[i]mplicitly the effect of the Act was to amend the provisions of the Articles of Union and the Acts of Union. The question that arises in law is whether the Union parliament had the authority to amend the Articles and the Acts of Union. As for the Articles, clearly it was an international treaty and therefore could only be amended by the original signatories none of which existed after the Union. (…) At the same time, an Act of the Union parliament could not amend the Acts of Union because the Acts of Union were actually two pieces of law, one passed (purportedly) by the Revolutionary Council and the other by the then Parliament of Tanganyika.” Ironically, Karume, who as the President of Zanzibar was, at the same time, the vice-president of Tanzania was the one to assent to the Act by which the Interim Constitution was approved, as explained in Shivji (2008), p. 134: “The Interim Constitution (Amendment) Act (No. 21 of 1965) making currency, foreign exchange and exchange control a Union matter was passed by the National Assembly on 10 June 1965, was assented to by Karume, in absence of Nyerere, on the same date and came into force on that very day. Clearly, Karume did not know what he was signing; Zanzibaris in the parliament hardly appreciated the implication of what they were passing. (…) As usual, Karume did not care about legalities and went ahead to appoint a Bank Commission to look into the modalities of setting up a state bank for Zanzibar.” As argued by Shivji (2008), p. 140, the addition of item 12 on the list of Union matters was in breach of the Articles of Union and Acts of Union and therefore invalid.
145.
According to Art. 151(1) of the Constitution of Tanzania, “Parliament” means the Parliament of the United Republic referred to in Art. 62 of the Constitution.
146.
The version used for the purposes of this study is the Constitution of Zanzibar 1984, the Revised Edition of 2006, published by the Revolutionary Government of Zanzibar on the basis of a grant from the UNDP. This version is current as of February 2010. In addition, the constitutional amendments of July 2010 are incorporated in the text on the basis of the Act to Amend the Constitution of Zanzibar of 1984 (the Tenth Zanzibar Constitutional Amendments Act of 2010).
147.
The version used for the purposes of this study is the 1977 Constitution of Tanzania as amended until 30 June 1995. This version is the current one as of February 2010.
148.
On the Interim Constitution, see Shivji (2008), pp. 94–97.
149.
See also Dourado (2006), p. 81 f., who is of the opinion that residual powers were vested not only in Zanzibar, but also in Tanganyika, with the consequence that the Articles of Union created three jurisdictions, and that the temporary fusion of two jurisdictions, the United Republic and Tanganyika) “in one Government has been the cause of confusion and its continuance has resulted in the erroneous thinking that Tanganyika is the United Republic and the United Republic is Tanganyika”. “Persons including Government and Party leaders were unable to appreciate that the Government of the United Republic exercising powers over “union matters” in respect of the whole territory of the United Republic was a separate Government from that of the United Republic exercising powers over non-union matters in respect of Tanganyika. In essence therefore there were three governments.” See also Dourado (2006), pp. 83 f., 86 ff. In addition to Dourado’s wish to promote a federal interpretation of the Articles of Union, his criticism also seems to be based on ignorance of some sort about the existence and function of territorial autonomy, where one of the salient features is that the national parliament is charged with a full competence outside of the territorial autonomy, while the national parliament has a limited competence only inside the autonomy jurisdiction.
150.
See Dourado (2006), pp. 80–81, who also points out that “the Parliament and Executive of the United Republic were given exclusive authority in respect of all other matters in and for Tanganyika”. This quality, of course, speaks in favour of a non-federal organisation of the state, although Dourado advocates a federal arrangement.
151.
See S.M.Z. v. Machano Khamis Ali & 17 Others, Court of Appeal of Tanzania at Zanzibar, Criminal Application No. 8 of 2000 on 3 April 2000, in which the Court denies that there is a list of concurrent jurisdiction.
152.
See, e.g., Othman (2006), p. 46.
153.
Treaty for the Establishment of the East African Community (as amended on 14th December, 2006 and 20th August, 2007).
154.
As pointed out by Khamis Bakary (2006), p. 3, this is formally speaking not in order, because the Articles of Union “may be amended only through a consensus of the two contracting sovereign parties, and no other body may do so, not even the Parliament of the United Republic”. He also makes a reference to the Treaty of Union between England and Scotland. See also Khamis Bakary (2006), p. 9 f.
155.
See Shivji (2008), p. 128 f., according to whom the technique of amending the list in the definition section was used to increase the list of Union matters. “By the death of Karume in 1972, the list of union matters had expanded from the original 11 to 16, including significantly the sixteenth item which was ‘mineral oil resources including petroleum, its relative hydrocarbons and natural gas.”
156.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
157.
For the list, see ‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
158.
According to Art. 151(1) of the Constitution of Tanzania, “Union Matters” means all public affairs specified in Article 4 of this Constitution as being Union Matters. Hence it seems that the term “matter” is not limited to the identification of legislative powers, but encompasses also executive powers and other public affairs. The consequence is that the division of powers between Mainland Tanzania and Tanzania Zanzibar is of a general nature and not limited to the legislative powers.
159.
Dourado (2006), p. 91: “Every increase in Union matters involves an erosion of Zanzibar’s sovereignty over matters reserved to its exclusive jurisdiction.”
160.
Shivji (2008), p. 173 f.
161.
As pointed out by Khamis Bakary (2006), p. 19, “we have two Constitutions but three jurisdictions, in other words, three governments”. In the same vein, see Khamis Bakary (2006), p. 30 f. For features that speak for a federal nature of the arrangement, see Khamis Bakary (2006), pp. 22–27. Those would be the name of the state (Tanzania as a United Sovereign Republic), the existence of three different entities (Tanganyika, Zanzibar and the United Republic), the restriction of the executive authority of the United Republic to the Union Matters only, division of powers between the federal level and the sub-state level, and the (amended) system of picking the vice-President of the Union from one part of the Union if the President comes from the other part. According to Khamis Bakary (2006), p. 31, the Articles of Union are a written, federal, rigid and supreme Constitution.
162.
Court of Appeal of Tanzania, [1998] T.L.R. of 24 February 1993.
163.
The revolutionary spirit started to fade in 1970, when the first president of Zanzibar was assassinated. The new president started to normalize things by reinstating the common law and the courts instead of the people’s courts and by reintroducing a constitution, although not the independence constitution as such, but at least the idea of one. Originally, as pointed out by Othman (2006), p. 44, the idea was to call a constituent assembly within one year after the revolution, but no such body was ever brought into existence. On this, see also Shivji (2008), p. 61 f. For a detailed account of the enactment of the 1979 Constitution of Zanzibar, see Shivji (2008), pp. 186–201.
164.
See ‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
165.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
166.
In Shivji (2006), pp. 170, 184, the following intriguing question is posed in the context of a treason trial: “What is it that the Constitution of Zanzibar constitutes?”.
167.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010). The liberal tone of the 1984 Constitution of Zanzibar seems, according to Shivji (2008), p. 228, to a great extent be based on the draftsman, then Attorney General Abubakar Khamis Bakary.
168.
Shivji (2008), p. 227, indicates that the bill of rights was added to the Constitution of Tanzania because “it would have been too embarrassing to have a bill of rights in the Zanzibar constitution and not have one in the Union constitution”.
169.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
170.
According to Art. 151(1) of the Constitution of Tanzania, “the House of Representatives” means the House of Representatives of Zanzibar referred to in Article 106 of this Constitution and which performs its functions in accordance with this Constitution and the Constitution of Zanzibar, 1984. As pointed out in Othman (2006), p. 61, the constitutional discussions of 1983/1984 resulted in major amendments to the 1977 Union Constitution and the formulation of a new Zanzibar Constitution. “But they also resulted in the resignation of Aboud Jumbe from all his state and party positions, the sacking of a Zanzibari Chief Minister and the serious warning given by the ruling party to a number of prominent Zanzibar figures.” For a detailed account of the downfall of Jumbe, see Shivji (2008), pp. 201–225.
171.
The transition was made pursuant to recommendations of the so-called Nyalali Commission, or the Presidential Commission on Single Party or Multiparty System in Tanzania. According to Othman (2006), p. 65, one of “the major recommendations of the Nyalali Commission was for the replacement of the present Union set-up with a federal one”. Amongst the 11 Zanzibari members of the Commission, “7 wanted the present Union set-up, with some major changes, to remain, 3 wanted a federal and 1 was undecided”, but what was important in the context was that both sides agreed that there were problems within the Union. In the work of the Commission, some cases from the Nordic space were presented, namely Denmark (with Faroe Islands and Greenland) and Finland (with Åland Islands) as examples of entities that have “full autonomy in a number of areas which they exercise within a non-federal state”. See Othman (2006), p. 65 f. Shivji (2008), p. xviii, makes reference to a colonial-type relationship between Britain and Northern Ireland as a model for the Articles of Federation. Also Dourado (2006), p. 83, accounts for some comparisons with Northern Ireland as a part of the United Kingdom, but denies the validity of the comparison on the basis that Northern Ireland would have been conquered by an imperial power, while Zanzibar was never conquered. Also, Dourado (2006), p. 89, says that in order to “accord with the Articles of Union, 1964 the Constitution should clearly reflect a federal status and not a devolved status (as in the case of Northern Ireland) as desired by NEC” (the NEC is the National Executive Committee of the CCM). See also Dourado (2006), p. 98, who concludes that the “Articles of Union, 1964 did not adopt an intermediate method of setting up two governments or a devolved status as in Northern Ireland”.
172.
According to Art. 151(1) of the Constitution of Tanzania, “Political Party” means a political party which has been granted full registration in accordance with the Political Parties Act, 1992. According to the distribution of powers between the Union Republic and Zanzibar, the party legislation is a Union matter.
173.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
174.
According to Art. 151(1) of the Constitution of Tanzania, “Commonwealth” means the organization whose members include the United Republic and every country to which the provisions of section 7 of the Citizenship Act, 1961, apply.
175.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
176.
The idea concerning an independent, impartial and politically neutral Director of Public Prosecutions did actually not come originally from the Muafaka II, but from a study of the legal systems of Tanzania and Zanzibar, carried out in 1994. The so-called Bomani report made such a proposal, but it was not implemented at the time. The Attorney General at the time was actually a politician and a member of Government, and went forward with charging 18 senior political figures of the opposition with treason in a manner which set a negative example of prosecutorial discretion. No-one was convicted on the basis of the charges.
177.
‘Zanzibar: Key Historical and Constitutional Developments’ by Eastern Africa Centre for Constitutional Development, at www.kituochakatiba.co.ug/zanz%20const.htm (accessed on 5 February 2010).
178.
According to Art. 151(1) of the Constitution of Tanzania, “Mainland Tanzania” means the whole of the territory of the United Republic which formerly was the territory of the Republic of Tanganyika. Dourado (2006), p. 91 f., criticizes this and is of the opinion that “the Constitution is muddled by using interchangeably Tanzania and the United Republic and the muddle is further compounded by substituting Mainland Tanzania for Tanganyika”.
179.
According to Art. 151(1) of the Constitution of Tanzania, “Tanzania Zanzibar” means the whole of the territory of the United Republic which formerly was the territory of the People’s Republic of Zanzibar and which was previously referred to as “Tanzania Visiwani”.
180.
According to Art. 151(1) of the Constitution of Zanzibar, “state authority” includes the Executive and the Legislature of the United Republic, as well as the Executive and the House of Representatives of Zanzibar.
181.
According to Art. 151(1) of the Constitution of Zanzibar, the term “the Government” is a general term and includes the Government of the United Republic, the RGZ or a District Council or Urban Authority, and also any person exercising any power or authority on behalf of the Government or local government authority.
182.
This provision was used by the Court of Appeal of Tanzania in the case of S.M.Z. v. Machano Khamis Ali & 17 Others to declare treason a Union Matter.
183.
According to Art. 151(1) of the Constitution of Tanzania, “Zanzibar” has the same meaning as Tanzania Zanzibar.
184.
However, for a published opinion on the matter, see Khamis Bakary (2006), p. 32. For a legal evaluation of the matter, see also Maalim (2006). See, in particular, Maalim (2006), p. 142, and also p. 148, where he advocates the position that the massive election irregularities in the elections of the year 2000 did not reach the threshold of triggering the exercise of the right of secession. Although arguing from the point of view of international law but referring to the Quebec case of the Supreme Court of Canada, Maalim (2006), pp. 149–156, 160, holds it possible that a secession of Zanzibar would be possible only through agreement of the two component parts and advocates that the right and possibility of secession should be recognized in the Constitution of Tanzania. See also Maalim (2006), p. 159: “Zanzibar was once a sovereign state which was brought into the union by its executives and if it seeks to re-establish itself as a sovereign state it will be seeking ‘dissolution’ and not secession.”
185.
See also Khamis Bakary (2006), p. 17, who is of the opinion that these Union matters should require the support of two thirds of MPs from Mainland Tanzania and Zanzibar, each, because it would otherwise be easy for the MPs from Mainland Tanzania to alter those Acts.
186.
182 + 55 (30% of women) + 10 appointees of the President + Attorney General = 248. It is, of course, fully possible that there will be persons from Zanzibar among the 10 appointees of the President. There is no requirement that they have to be recruited from Mainland Tanzania, and in practice, there are Zanzibaris among the appointees of the President.
187.
50 + 15 (30% of women) + 5 members appointed by the House of Representatives of Zanzibar = 75. Khamis Bakary (2006), p. 16, makes the point in a critical vein that the House of Representatives of Zanzibar does not have the power to introduce legislation on Union matters, but this is probably not quite justified as a point of criticism with a view to the fact that the House of representatives appoints 5 MPs on the top of the overrepresentation of Zanzibar in Parliament.
188.
The list contains the following items that can be characterized as protected or entrenched constitutional matters: the existence of the United Republic, the existence of the Office of President of the United Republic, the authority of the Government of the United Republic, the existence of the Parliament of the United Republic, the authority of the Government of Zanzibar, the High Court of Zanzibar, the list of Union Matters, and the number of Members of Parliament from Zanzibar. It is notable that different dimensions of Zanzibar are strongly featured in this list. Khamis Bakary (2006), p. 16 f., makes the observation that while the number of MPs from Zanzibar is entrenched, the number of MPs from Mainland Tanzania is not so and that Parliament formally speaking could, by simple majority, increase the number of MPs from Mainland Tanzania, thereby rendering the representation of Zanzibar marginal.
189.
See Othman (2006), p. 59.
190.
As pointed out by Shivji (2006), p. 184, “[t]he Constitution of Zanzibar is made by the people of Zanzibar through the Revolutionary Council. It does not derive its legal authority or political legitimacy from the Union Constitution nor it is subordinate to the Union Constitution. This is stated very explicitly in the Preamble of the Zanzibar Constitution.” Shivji (2006), p. 186, draws the conclusion that “the Constitution of Zanzibar constitutes State Power which is the sum of executive, legislative and judicial power”.
191.
Khamis Bakary (2006), pp. 2, 28–29, where he also laments the fact that the Articles of Union, in their capacity as the grundnorm, were not taken into consideration when the cases of Seif Sharif Hamad and Machano and 17 others were decided. See also Khamis Bakary (2006), pp. 30 ff., where he argues that the Articles of Union are a supreme law of the land and form a written Constitution of the Union. Shivji (2006), p. 184, draws the following conclusion: “The Articles of the Union, through the Acts of Union, are part of the Constitution of the Union and that of Zanzibar. Both the Constitution of Zanzibar and the Union Constitution are subordinate to the Acts of Union and in case of conflict the Acts of Union prevail.” However, according to Shivji (2008), p. 178, the 1977 Constitution of Tanzania has been understood as departing from the idea that the Government of Zanzibar derives its authority from the 1977 Constitution, but he considers this understanding as erroneous, because the Government of Zanzibar derived its authority from the revolution and the subsequent laws passed by the Revolutionary Council.
192.
See also Tanzania Human Rights Report (2009), p. 202, where the distinction between justiciable and unjusticiable rights is confirmed.
193.
This is sustained by Art. 23(1), according to which every person has the duty to observe and abide by the Constitution of Zanzibar and the laws of Zanzibar, and to take legal action to ensure the protection of the Constitution and the laws of the land. The violent reaction against demonstration by the opposition party CUF on 27 January 2001, reported in Maalim (2006), p. 146, seems to have been carried out in spite of the right of free and peaceful assembly in Art. 20(1) of the Constitution of Zanzibar. Also in conjunction to the elections of the year 2000, limitations of human rights were put in place without a declaration of any state of emergency.
194.
According to Art. 151(1) of the Constitution of Tanzania, “Judiciary of Zanzibar” means the Zanzibar Judiciary which includes all the courts within the RGZ. For a detailed account, see Peter and Sikand (2006).
195.
According to Art. 151(1) of the Constitution of Tanzania, “High Court” means the High Court of the United Republic or the High Court of Zanzibar, while the “Chief Justice of Zanzibar” means the Chief Justice of the High Court of Zanzibar who, pursuant to the Constitution of Zanzibar, 1984, is the head of the Zanzibar Judiciary. It should be noted that the Chief Justice of Zanzibar and the members of the Zanzibar High Court are appointed by the President on the recommendation of the Judicial Service Commission.
196.
For instance, under Art. 72(1) of the Constitution of Zanzibar, the High Court of Zanzibar has exclusive jurisdiction and authority to hear and determine all cases concerning the elections in Zanzibar, except elections of the President of Zanzibar. Hence election complaints are tried by the High Court, and the reliefs that can be claimed are a declaration that the election is void a declaration that the nomination of the person elected was invalid a declaration that any candidate was duly elected where the seat is claimed for an unsuccessful candidate on the ground that he had a majority of lawful votes, a scrutiny. Election petitions shall be presented within fourteen days from the date of the declaration of the results of the election by the Returning Officer, and the High Court shall hear and determine each election petition within two years from the date of presentation of the election petition before it.
197.
The Magistrates’ Court Act 1985, Act No. 6 of 1985.
198.
The Kadhis’ Courts Act, 1985, Act No. 3 of 1985.
199.
As pointed out in Tanzania Human Rights Report (2009), p. 187 f., there is an unclear situation as concerns law of procedure in Kadhi’s courts that results in restrictions of access to justice.
200.
As stated by the Court of Appeal of Tanzania in the case of Seif Sharif Hamad v. S.M.Z., [1998] T.L.R., the High Court of Zanzibar has concurrent jurisdiction with the High Court of Tanzania over legislation which applies to both parts of the United Republic, as provided by Art. 115(2) of the Constitution of Tanzania. Therefore, the trial of an applicant on the basis of the National Security Act 1970 was conducted in the High Court of Zanzibar. Also, the Court established that because the High Court and the courts subordinate thereto are not Union Matters, the procedure and processes in those courts are not Union Matters. On this basis, the prosecution in Zanzibar of a crime that is based on the National Security Act 1970 is not the responsibility of the Director of Public Prosecutions of Mainland Tanzania, but of the prosecutorial officer of Zanzibar. Hence the point of the provision is that the administration of justice is not a union matter. When an act is committed in Zanzibar in violation of Union laws, the matter has to be brought for trial in a Zanzibar court.
201.
This is also supported by Art. 101 of the Constitution of Zanzibar, according to which documents containing court orders issued by courts in Mainland Tanzania and courts in Zanzibar in cases of whatever civil nature and criminal matters of all kinds (including warrants of arrest) may be served and may be executed in any place in Tanzania, subject to certain conditions established in the provision. In practice this means that criminal law on such areas which is within Union matters, e.g., armament control and firearms, is prosecuted under the authority of the Director of Public Prosecutions of Zanzibar, and the situation is similar as concerns immigration law. If the criminal or illegal act has taken place in Zanzibar, then also the enforcement of the applicable law takes place there. Shivji (2008), p. 116 f., accounts for the control that Zanzibar exercised over immigration during the first three decades of its Union time and makes the point that the fully integrated Union law on immigration was passed only in 1995.
202.
As stated in the case of Haji v Nungu and Another, Court of Appeal of Tanzania, [1987] LRC (Const) of 27 September 1986, “the Election Act 1985 has to be read together with article 83 of the Constitution and that fact precludes the High Court of Zanzibar from acquiring jurisdiction concurrently with the High Court of the United Republic”, because the Court of Appeal was specifically vested with the jurisdiction to hear appeals from the High Court of the United Republic in matters including election petitions. The High Court of the United Republic has no territorial jurisdiction over Zanzibar and cannot sit in Zanzibar to hear election petitions, but has to do so in the mainland, although its material jurisdiction in election matters also covers Zanzibar.
203.
Even so, under Art. 116(2) and (3), the Chief Justice of the Court of Appeal shall have no power over any matter concerning the structure and administration of the day-to-day business of the courts established in accordance with the Constitution of Zanzibar, 1984, or any law of Tanzania Zanzibar. The Chief Justice shall from time to time consult with the Chief Justice of Zanzibar concerning the administration of the business of the Court of Appeal in general, and also concerning the appointment of Justices of Appeal.
204.
This unification of the legal order at its apex is also reflected in Art. 45(1) of the Constitution of Tanzania, according to which it is the Union President who has the grant pardons, less severe punishment, etc., also in respect of persons convicted and punished in Tanzania Zanzibar and in respect of punishments imposed in Tanzania Zanzibar under legislation enacted by Parliament which applies to Tanzania Zanzibar, in the same manner he is authorized to exercise those powers in Mainland Tanzania.
205.
See, however, Khamis Bakary (2006), pp. 14–15, who presents critical remarks concerning the composition and functioning of the Court of Appeal of Tanzania.
206.
See, e.g., Khamis Bakary (2006), p. 13.
207.
Shivji (2008), p. 180.
208.
Khamis Bakary (2006), p. 18. He reports a case in 1984, when the then President of Zanzibar was determined to call for the Special Constitutional Court, but the one Party “frustrated his efforts and he was forced to resign from the CCM Party and the Government”.
209.
See Khamis Bakary (2006), p. 13 f., and Shivji (2008), p. 180, who think that the Special Constitutional Court would not be capable of operating under such requirements of super-majorities.
210.
In addition, it is excluded from hearing matters of Islamic law which have arisen at a Kadhis’ court and such matters which the Constitution of Zanzibar or a law enacted by the House of Representatives identifies.
211.
In the case Seif Sharif Hamad v. S.M.Z., dealing with the application of material criminal law of the Union by the courts of Zanzibar, the Court of Appeal also touched upon constitutional issues, and raised a specific constitutional point on the basis of the then Art. 98(2) of the Constitution of Zanzibar, repealed in 2002. The Court wondered, in case of any inconsistency between the two Constitutions, “which body would have the authority to reconcile the two provisions or declare one inappropriate”? With a view to Art. 99 of the Constitution of Zanzibar, the question is still relevant.
212.
According to Khamis Bakary (2006), p. 12, Mainland Tanzania does not have its own Consolidated Fund for matters other than Union Matters which relate to Mainland Tanzania only, which underlines the asymmetrical nature of the Tanzanian arrangement. From the perspective of Zanzibar, this is a problem, because according to Khamis Bakary (2006), p. 12, “all expenditure in respect of non-Union matters in Mainland Tanzania should not be met by the Consolidated Fund of the United Republic”.
213.
According to Khamis Bakary (2006), p. 12, this contains a further asymmetrical problem, because “it is only the governments of the United republic and that of Zanzibar, which are bound to contribute for the servicing and maintenance of the Union. Mainland Tanzania does not contribute anything and in fact is not bound under the Constitution to do so”.
214.
According to Art. 115 of the Constitution of Zanzibar, the contribution from the RGZ to the Union shall not be expended until the Joint Finance Commission has analysed the revenue and expenditure and made its recommendations to relevant institutions on the allocation of the expenditure and the RGZ agrees with the said recommendations and allocation. This provision of the Zanzibar Constitution functions thus as a restriction on the part of the RGZ in relation to the Union as concerns the funding of the Union, leaving the Union budget in principle dependent on Mainland Tanzania. The finances of Zanzibar are managed by the Zanzibar Revenue Board. The revenue is partly originating in the tax powers of Zanzibar, and although the income taxation is a Union Matter, there is an understanding that whatever is collected in Zanzibar by the Tanzania Revenue Authority, the tax remains in Zanzibar and is transferred to the Government of Zanzibar. Development aid is by default going to Mainland Tanzania, as is pointed out by Dourado (2006), p. 101, but a solution has been worked out that gives a share of 4.5% of whatever is received to Zanzibar, more or less on the same basis as transfers are made to a regular region of Tanzania. Zanzibar would, however, like to have 11.5%, because that was the share of Zanzibar towards the creation of the Central Bank of Tanzania and also to the currency board of the East African Community in the 1960s. On the dissolution of the currency board and the assets that should have returned to Zanzibar up to 11.05%, see Shivji (2008), p. 132.
215.
The great majority of the Zanzibari are Muslim, but the Constitution of Zanzibar tries to establish a relatively secular state. In Art. 19(1) of the Constitution, every person is accorded the right to freedom of thought or conscience, belief or faith and choice in matters of religion. It is remarkable that the provision also guarantees the freedom to change religion or faith.
216.
Article 6(1) of the Constitution of Zanzibar creates the category of the Zanzibari person as a distinctive status definition who, under sub-section 2 of the provision, shall enjoy rights and privileges befitting a Zanzibari and shall also be obliged to perform duties, functions and responsibilities as provided in the Constitution or in ordinary legislation.
217.
Act No. 5 of 1985.
218.
It is noteworthy that in Art. 22(1), there is a work-related provision that is phrased both in the terms of a duty and a freedom, according to which every person has a duty to participate voluntarily and honestly in lawful and productive work.
219.
In addition, it is mentioned in Tanzania Human Rights Report (2009), p. 197, that according to Education Act, 1982, every Zanzibari has the right to education up to basic education.
220.
For a discussion of allegiance, see also the case of S.M.Z. v. Machano Khamis Ali & 17 Others, supra, note 151 in this Chap.
221.
See also Shivji (2008), p. 16 f., who accounts for the migration from mainland to Zanzibar, and Shivji (2008), p. 71 f., on the fears in Zanzibar concerning an unrestricted freedom of movement from mainland Tanzania.
222.
Under the terminology of Resolution 1514(XV) of the United Nations General Assembly with the Declaration on the Granting of Independence to Colonial Countries and Peoples, Zanzibar emerged in 1964 as a sovereign independent State out of a colonial situation with Great Britain as the former colonial power.
223.
See also Maalim (2006), p. 140 f., who argues that the population of Zanzibar constitutes a people.
224.
Treaty Between China and Great Britain, Signed at Nanking, 29 August 1842, Art. III: It being obviously necessary and desirable that British subjects should have some port whereat they may careen and refit their ships when required, and keep stores for that purpose, [China] cedes to [Great Britain] the Island of Hong Kong, to be possessed in perpetuity by Her Britannic Majesty, her heirs and successors, and to be governed by such laws and regulations as Her Majesty […] shall see fit to direct.”
225.
Convention of Friendship between Great Britain and China Signed in Peking, 24 October 1860, Art. VI: “With a view to the maintenance of law and order in and about the harbour of Hong Kong, [China] agrees to cede to [Great Britain] to have and to hold as dependency of Her Britannic Majesty’s Colony of Hong Kong, that portion of the township of Cow loon, in the Province of Kwang-tung, of which a lease was granted in perpetuity to Harry Smith Parkes, Esquire, Companion of the Bath, a member of the Allied Commission at Canton, on behalf of her Britannic Majesty’s Government, by Lan Tsung Kwang, Governor-General of the Two Kwang. It is further declared that the lease in question is hereby cancelled; […].”
226.
Convention between Great Britain and China Respecting an Extension of Hong Kong Territory, Signed at Peking, 9 June 1898.
227.
See also Leung (2006), pp. 4 f., 16 f. The colonial problem existed, of course, also in relation to Portugal, which had established itself as a colonial power over Macau.
228.
For the Letters Patent, see Leung (2006), pp. 371–380.
229.
For the Royal Instructions, see Leung (2006), pp. 381–390.
230.
See Leung (2006), pp. 60–70, 257 f.
231.
See UN Human Rights Committee, Concluding Comments in 1995, CCPR/C/79/Add.57, para. 19: “The Committee is aware of the reservation made by the United Kingdom that Article 25 does not require establishment of an elected Executive or Legislative Council. It however takes the view that once an elected Legislative Council is established, its election must conform to Article 25 of the Covenant. The Committee considers that the electoral system in Hong Kong does not meet the requirements of Article 25, as well as Articles 2, 3 and 26 of the Covenant. It underscores in particular that only 20 of 60 seats in the Legislative Council are subject to direct popular election and that the concept of functional constituencies, which gives undue weight to the views of the business community, discriminates among voters on the basis of property and functions. This clearly constitutes a violation of Articles 2, paragraph 1, 25 (b) and 26. It is also concerned that laws depriving convicted persons of their voting rights for periods of up to 10 years may be a disproportionate restriction of the rights protected by article 25.” See also the Human Rights Committee’s report to the General Assembly, A/44/40 (44th session, 1989), paras 140–189.
232.
In the context of decolonization and self-determination of colonial territories, the General Assembly of the United Nations removed on 8 November 1972 Hong Kong from of the list colonial territories on the proposal of China. See Weiyun (2001), p. 67. According to China, Hong Kong was a Chinese territory occupied by Britain.
233.
Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong, 19 December 1984, 1399 UNTS 33. See also Ghai (1999), pp. 53–56.
234.
According to Art. 8, the Joint Declaration is subject to ratification and shall enter into force on the date of the exchange of instruments of ratification, which shall take place in Beijing before 30 June 1985. The same provision says that the Joint Declaration and its Annexes shall be equally binding, which seems to imply that the entire document was intended to have normative effects between the parties. See also Weiyun (2001), p. 70. See also Mushkat (1997), p. 172, according to whom the Joint Declaration and its Annexes were not incorporated into the local law of Hong Kong: “As pronounced by the High Court, neither the Hong Kong Act 1985 nor the Application of English Law Ordinance bestowed upon the Joint Declaration the force of law in Hong Kong.” Therefore, the Joint Declaration could not, as such, give rise to justiciable claims in Hong Kong. On the treaty nature of the Joint Declaration, see also Mushkat (1997), p. 140 ff.
235.
Annex I: Elaboration by the Government of the People’s Republic of China of its basic policies regarding Hong Kong; Annex II: Sino-British Joint Liaison Group; Annex III: Land Leases. The English and the Chinese versions of the Joint Declaration are equally authentic.
236.
Joint Declaration of the Government of the Portuguese Republic and the Government of the People's Republic of China on the Question of Macao, 13 April 1987, 1498 UNTS 195.
237.
As pointed out by Chan (2010), p. 129, there is “no enforcement mechanism under the Joint Declaration or at the international level” for conflict resolution by an external mechanism.
238.
See Huang (2009). See also Weiyun (2001), p. 112, quoting Deng Xiaoping for saying the following: “This law shall be effective for at least 50 years. I would like to add here, after 50 years, there would be less need for Hong Kong to change. Our policies regarding Hong Kong shall not change.” However, as pointed out by Ghai (1999), p. 143, the amendment restriction included in Art. 159(3) of the Basic Law prohibiting amendments that contravene the basic principles would presumably disappear after the 50 year period. See also Chan (2010), p. 129, who concludes that it is not clear “whether the model will ultimately (or within 50 years) lead to the merger or the retention of ‘two systems’”.
239.
On the issue, see Ghai (1999), pp. 41–45, and Ghai (2004), p. 444.
240.
For the 55 recognised ethnic minorities in China, different structures of regional autonomy are used in many instances. See Ghai (1999), pp. 113–125, and Ghai (2000a), pp. 77–98. According to Ghai (2000a), p. 78 f., minorities in China constitute only 8% of the population, but in absolute numbers, they amount to as many as 60 million persons. Their size varies from the mere 5,000 Tartars to the nearly nine million Hui, but on the top of ethnic minorities, the 55 national minorities also comprise religious minorities, such as Muslims and Buddhists. On the functioning of regional ethnic autonomy in China, see Chunli (2009).
241.
See Ghai (1999), p. 56 f., Weiyun (2001), pp. 9–11, and Leung (2006), p. 19 as well as Chen (2009), p. 755 ff. and Chan (2010), p. 126. As pointed out by Hualing et al. (2007), p. 2 f., the concept of “one country, two systems” was by no means new in the Chinese political thinking in the beginning of the 1980s, but it has its root in the 1930s and the 1940s, first in the distinction between areas controlled by the Communists in relation to areas controlled by the Nationalist Party and later on in the relationship between China and Tibet during a short time after 1949.
242.
“The state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People’s Congress in the light of the specific conditions.” A special administrative region is apparently to be distinguished from such autonomy arrangements which are created on the basis of Art. 4 on minority rights: “Regional autonomy is practiced in areas where people of minority nationalities live in concentrated communities; in these areas organs of self- government are established to exercise the power of autonomy. All national autonomous areas are integral parts of the People’s Republic of China.”
243.
Adopted on 4 April 1990 by the Seventh National People’s Congress of the People’s Republic of China at its Third Session. The Basic Law was promulgated on the same day by Decree No. 26 of the President of the PRC. On the same day, perhaps to dispel any doubts about the constitutionality of the Basic Law, the NPC made the “Decision of the National People’s Congress on the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, according to which the Basic Law “is constitutional as it is enacted in accordance with the Constitution of the People’s Republic of China and in the Light of the Specific Conditions of Hong Kong”. See Weiyun (2001), pp. 75, 81. See also Decision of the Standing Committee of the National People’s Congress on the English Text of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, according to which the 14th Meeting of the 7th NPCSC decided the following: “the English translation of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, examined and approved under the aegis of the Law Committee of the National People’s Congress, shall be the official English text and shall be equally authentic as the Chinese text. In case of any discrepancy in the meaning of wording between the English text and the Chinese text, the Chinese text shall prevail.” For the decision, see Leung (2006), p. 464.
244.
The term “Basic Law” is in this context not a reference to a special enactment and amendment formula (although the initiation of amendments from Hong Kong is a more difficult procedure), because the Basic Law does not appear to have been adopted by the National People’s Congress of China by any qualified majority or special procedure. Moreover, section 159 of the Basic Law does not prescribe any more complicated amendment formula for the Basic Law than for any other act, but it does prevent such amendments to the Basic Law that are in contravention with the basic principles, found in the Joint Declaration. Therefore, the references in the Basic Law to the Joint Declaration could be interpreted as an elevation of the normative status of the Basic Law to a level above that of ordinary acts of China.
245.
On issues of separation of powers in the HKSAR, see Wesley-Smith (2004), pp. 83–107, and Hsu (2004), pp. 279–302, which both raise critical points about the relationship between the executive and the judiciary, the first one because of appointment of judges to tribunal-like and administrative positions, the latter one because of the strong position of the executive in the appointment of judges to the bench.
246.
See Hualing et al. (2007), p. 3.
247.
Expenditure for these military forces shall be borne by the Central People’s Government.
248.
The CCPR was incorporated into Hong Kong’s domestic law already in 1991 through the Bill of Rights Ordinance. On the CCPR as well as the UN Convention Against Torture, the Convention on the Elimination of All Forms of Discrimination Against Women and the International Covenant on Economic, Social and Cultural Rights, see Petersen (2007), pp. 33–53, who makes the point that in contrast to the other human rights treaties, the CCPR enjoys an elevated status in Hong Kong’s judicial discourse. Noting the link between the CCPR and the Bill of Rights Ordinance, Weiyun (2001), p. 228, denies the possibility that the Bill of Rights Ordinance would be higher than all other laws. See also Leung (2006), pp. 185–205.
249.
See Decision of the Standing Committee of the National People’s Congress on Treatment of the Laws Previously in Force in Hong Kong in Accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. Adopted by the Standing Committee of the Eighth National People’s Congress at its 24th Sitting on 23 February 1997 (as reproduced in Ghai (1999), pp. 571–576). The previous legislation that was not allowed to remain in force comprised of surprisingly few enactments, only 14 ordinances, and only a handful of provisions in ten other ordinances. However, many of the ordinances and provisions were of a “liberal” nature that the Chinese Government apparently disliked.
250.
In case a dispute arose between China and the UK about the implementation of the Joint Declaration, Ghai (1999), p. 72, is of the opinion that there seems to exist no basis for effective action in case of its breach. Because China has not recognized the compulsory jurisdiction of the International Court of Justice, such a dispute could be litigated before the Court only if China agrees to such litigation on a case-by-case basis. Interestingly in the context, the Sino-British Joint Liaison Group agreed, in advance of the transfer of sovereignty, that a number of international treaties, among them the Statute of the International Court of Justice, would continue to apply to the HKSAR after 1 July 1977. See Leung (2006), p. 417.
251.
See also Weiyun (2001), p. 13, who concludes that the Joint Declaration is not domestic law, but that China would, after signature and ratification, start implementing it. “Naturally, it has legal status and effect.” See Weiyun (2001), pp. 76, 200 f, 213.
252.
See Weiyun (2001), p. 289, Ghai (1999), pp. 67–70.
253.
See Leung (2006), pp. 40–42, according to whom the norm hierarchy in China is as follows: the Constitution, the national legislation, administrative regulations and local regulations. The Basic Law is placed on the second level, among the national legislation. See also Morris (2007), p. 105, who points out that the “Basic Law is not, as many common-law commentators have declared, a constitution or “mini-constitution” for Hong Kong. It is merely another law – a statute – enacted by the NPC. It is subordinate to the PRC Constitution and does not occupy the entire field, as much of the PRC Constitution applies in Hong Kong as well.”
254.
Leung (2006), p. 42. See also Leung (2006), pp. 45–47, 244 f.
255.
On the concept of basic law in China, see Ghai (1999), p. 101, making the point that it can be understood as referring to statutes, that is, ordinary national laws enacted by the NPC. As pointed out by Dowdle (2007), p. 71, “China has more than sixty ‘basic laws’ in force at present, of which the Basic Law of the Hong Kong SAR is simply one. Contrary to what many in Hong Kong’s interpretative community presumed, at least in the 1990s, simply calling the Hong Kong Basic Law a ‘Basic Law’ did not endow it with some uniquely ‘constitutional’ essence per se.” Nonetheless, according to Weiyun (2001), p. 177, “the HKSAR Basic Law is regarded as a fundamental law established by NPC; any amendment should be made by NPC”, which statement of course may be limited to the amendment procedures of the Basic Law.
256.
Leung (2006), p. 33, is of the opinion that from a legal point of view, “the Basic Law should not be considered as the Constitution of Hong Kong, although it may have certain functions of a Constitution for the territory”, but see Leung (2006), p. 55 f., where she writes that “[n]evertheless, from the broad delegation of powers by the Constitution and the comprehensive legal system it prescribes, as far as Hong Kong is concerned, the Basic Law is the supreme law of the territory in addition to the Constitution, no matter what name it may be given”. However, although the Basic Law is a piece of national law in China, according to Leung (2006), p. 10, it is nonetheless at the same time a special law, apparently because it has been enacted within the framework of Art. 31 of the Chinese Constitution. See also Weiyun (2001), p. 54, who seems to feel that the Basic Law assumes an intermediate position, with much of its contents of a non-constitutional nature but also with some similarities in form to constitutional law: “It could refer to the framework of constitutional law where it is proper to do so.” However, he adds on p. 129 that “the Constitution is indispensable to the Basic Law in respect of its birth and existence”, and on p. 131 that the Basic Law is not the supreme law of the HKSAR or that it would have the supreme legal effect, because the Chinese Constitution has that position in China, including the HKSAR.
257.
Weiyun (2001), p. 130 f.
258.
See also Ghai (1999), p. 71, who concludes that the Joint Declaration is effective in Chinese laws, and probably also that it is superior to the Basic Law when their provisions conflict. But see Weiyun (2001), p. 85 f., who denies that the Joint Declaration would at all constitute the legal basis for enacting the Basic Law. Instead, the legal basis comes via Art. 31 from the Constitution of China, and therefore, it is according to him incorrect to say that the Joint Declaration is the legal basis for enacting the Basic Law. He continues by saying that the Joint Declaration is only written in an international instrument, not a domestic law, and it seems he says so because the Constitution of China lacks a provision regulating the relationship, although there exists ordinary legislation in the area of civil law that grants precedence to international treaties concluded by China.
259.
See Weiyun (2001), p. 84, who concludes that when it is said that the Constitution should apply to HKSAR, it “does not mean that every part, every article of the Constitution can apply to the HKSAR, but its entirety and many of its articles must apply to HKSAR”. But see Weiyun (2001), p. 163, where he states the contrary by saying that “[o]f course, the Constitution as the highest among all National Laws shall be applicable as a whole to the HKSAR”. See also Leung (2006), p. 13, who seems to advocate a limited application of the Chinese Constitution in the HKSAR. She says that those provisions of the Chinese Constitution that contradict the principle of “one country, two systems” shall not be directly applicable to Hong Kong and recommends that “one should not adopt a totality approach to the issue of whether other provisions of the Chinese Constitution apply to Hong Kong. Decisions must be based on the principle of ‘one country, two systems’ and be made after detailed classification of the nature of the provision.”
260.
On the substantive restraints on the NPC concerning amendments to the Basic Law, see Leung (2006), p. 90 f. See also Weiyun (2001), p. 179 f.
261.
On the existence of such a notion of self-limitation at the top of the CPG, see Chang (2007), pp. 351–362.
262.
See also Weiyun (2001), p. 177, who thinks that the “HKSAR Basic Law is regarded as a fundamental law established by NPC; any amendment should be made by NPC”.
263.
See Leung (2006), pp. 82–84.
264.
In the Interpretation of 6 April 2004 of the NPCSC of Art. 7 of Annex I and Art. III of Annex II to the Basic Law, the NPCSC determined that the Chief Executive shall, according to the Interpretation, make a report to the NPCSC as regards whether there is a need to make an amendment. Thereafter, the NPCSC makes a determination on the need on the basis of Articles 45 and 68 of the Basic Law, in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly process. If there is such a need, the NPCSC will authorize the Government of Hong Kong to file an amendment bill with the Legislative Council. This procedural determination by the NPCSC may, in fact, amount to an amendment of the Basic Law, as pointed out in Ghai (2007b), p. 398.
265.
See also Leung (2006), p. 88, who argues in a similar vein.
266.
See also Leung (2006), p. 89.
267.
See Leung (2006), p. 241.
268.
However, according to the decision of the NPCSC of 26 April 2004, amendments to Annex I cannot be initiated in the Legislative Council, but are to be submitted by the Government of Hong Kong after the need for a reform has been determined by the NPCSC. This interpretation may amount to a de facto amendment of the Basic Law or at least of its Annex I and has been criticised in that vein in Ghai (2007a), pp. 134–137. See also Leung (2006), p. 240 f. On 28 August 2010, the NPCSC approved an amendment to Annex I concerning the election of the CE from 2012 so that he is elected by an Election Committee with 1200 members divided into four different sections of equal size.
269.
See Weiyun (2001), p. 325, Leung (2006), p. 239 f. Apparently, against the background of that comparison, a decision made in the HKSAR to amend Annex II of the Basic Law could be returned by the NPCSC to the HKSAR. On 28 August 2010, the NPCSC recorded the amendment that in 2012, the LegCo shall have 70 members, of which 35 are returned by functional constituencies and 35 by geographical constituencies.
270.
See also Leung (2006), p. 89 ff. See also Chan (2010), p. 129, who gives a critical assessment of the Basic Law Committee and concludes that a decade after the establishment of the HKSAR, “the Basic Law Committee is still generally perceived as nothing more than a rubber stamp”.
271.
Concerning the political notion of the concept, see Xiaoping (2004). See also Ghai (1999), pp. 140–142.
272.
For instance, Weiyun (2001), p. 64, concludes that it is “necessary to trace the background to such an unprecedented law, to define its relations with the JD, and to set down all the reasons for enacting such a law”. The special status for Hong Kong is a clear deviation from the four fundamental principles of the Chinese Constitution, as established in the preamble of the Constitution, namely the socialist road, the rule of the proletariat, the leadership of the Communist Party and the guidance of Marxism-Leninism and Mao Zedong thought. See also Leung (2006), p. 3, making the point that Deng Xiaoping’s thoughts were added to the preamble in 1999 and Ziang Jeming’s three basic thoughts in 2004. Evidently, they may used to justify the particular system granted to the HKSAR through the Joint Declaration and the Basic Law. As explained by Morris (2007), pp. 98–106, the ”one country, two systems” concept, including the two separate legal orders and the common law system practiced in Hong Kong, is an expression of the Marxist dialectics that is expected at the end to produce a merger between the two in a synthesis the contents of which are not known at this point of time. In this light, the autonomy of Hong Kong could be extinguished, first in an incremental manner through the interpretations of the NPCSC and later, supposedly after 2047, by legislative decision of the NPC.
273.
See Weiyun (2001), p. 137. See also Weiyun (2001), p. 262, according to whom although “the HKSAR will enjoy a high degree of autonomy, it will still be a local administrative region and it cannot be taken as an exception at all”.
274.
The freedoms of the residents of the Hong Kong Special Administrative Region (and also of other persons in the region) shall be safeguarded by the HKSAR in accordance with law, which is a general reference in Art. 4 of the Basic Law covering not only the rights established in the Basic Law, but also in the common law applicable in the HKSAR.
275.
See Leung Kwok Hung & Others v HKSAR [2005] 3 HKLRD 164, at 199, in which a peaceful procession not notified in advance as required by the law was aborted by the police and the persons in charge tried in court. The case deals with the way in which the requirements of the ICCPR (prescribed by law, necessary in a democratic society and proportionality) are brought into the ambit of the fundamental rights of the Basic Law. The convictions of the defendants were upheld, but the concept of public order was limited so as to confine the discretion of the Police Commissioner to regular public order under a proportionality consideration, excluding thereby the broader implications of “ordre public”.
276.
See the case of Gurung Kesh Bahadur v Director of Immigration [2002] 2 HKLRD 775, in which the freedom to travel was interpreted directly on the basis of Art. 31 of the Basic Law and in which restrictions of the freedom were not found permissible. See also Young (2004), pp. 109–132.
277.
See also the case of Hong Kong Special Administrative Region v Ng Kung Siu (1999) 2 HKCFAR 442, the so-called national flag desecration case, in which, according to Petersen (2007), p. 35, “the government accepted in court that Article 19 is incorporated into the Basic Law by its Article 39”. On p. 36, Petersen concludes that it is noteworthy that the government was so ready to concede that even legislation implementing Art. 23 of the Basic Law (see below) concerning national security legislation must be struck down if it cannot be interpreted so as to comply with the ICCPR. In the case, the CFA upheld the restrictions that the national flag legislation, as implemented in Hong Kong, imposed.
278.
As pointed out in Gurung Kesh Bahadur, supra note 276 in this Chap., at 783, when interpreting the fundamental rights in chapter III of the Basic Law, “[a] generous approach should be adopted to the interpretation of the rights and freedoms whilst restrictions to them should be narrowly interpreted”. The CFA based itself on similar interpretation statements made earlier in Ng Ka Ling, infra note 281 in this Chap., and Ng Kung Siu, supra note 277 in this Chap. as well as in Leung Kwok Hung, supra note 275 in this Chap.
279.
As laid down in Art. 22 of the Basic Law, the number of persons who may enter the HKSAR from Mainland China for the purpose of settlement shall be determined by the competent authorities of the Central People's Government after consulting the Government of the HKSAR.
280.
See, e.g., Leung (2006), pp. 92–174. See also the case of Kong Yunming v The Director of Social Welfare [2009] 4 HKLRD 382, challenging social welfare policies which require 7 years of residency before receiving benefits.
281.
Ng Ka Ling and Others v Director of Immigration (1999) 2 HKCFAR 4, at pp. 26–28. See also the case of A Solicitor v Law Society of Hong Kong (SJ, intervening) [2004] 1 HKLRD 214, in which the Court of Final Appeal again asserted its constitutional jurisdiction, but apparently without ramifications in relation to the NPCSC or the Central Government. For a comment, see P.Y. Lo, ‘Master’s of One’s Own Court’, in Hong Kong Law Journal, vol. 34, part 1 of 2004, pp. 47–65.
282.
Ng Ka Ling & Others v Director of Immigration (No 2) [1999] 1 HKLRD 577, at 578. The clarification judgment is very short, altogether two pages.
283.
The Interpretation of 26 June 1999 by the Standing Committee of the National People's Congress of Articles 22(4) and 24(2)(3) of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. See Davis (2007), pp. 88–90, Ghai (2007a), pp. 132–134, and Chan et al. (2000), pp. ix–215 for academic analysis and pp. 219–532 for documents that materialised in the public debate after the Interpretation was issued. See also Chan (2010), p. 130 ff. with other case examples.
284.
Leung (2006), p. 32, makes the point that “[s]cholars of Chinese constitutional law appear to agree that Article 5 of the Constitution is a general provision and Article 31 is a special provision, and that according to rules of interpretation, special provisions should prevail over general provisions”.
285.
See also Weiyun (2001), p. 121 f.
286.
See Leung (2006), p. 7: “Hong Kong practices the common law tradition and follows the doctrine of binding precedents.” Concerning the continuity of legislation previously in force, see Leung (2006), pp. 70–74. As pointed out by Dowdle (2007), p. 56, “Hong Kong may be the only jurisdiction in the modern world to elevate a particular legal system to the status of a constitutional right”. See also Ghai (2009).
287.
The Sino-British Joint Liaison Group agreed in advance of the transfer of sovereignty on 28 matters previously regulated by UK law that would continue to be regulated by way of local legislation after 30 June 1997, on a large number of bilateral treaties between Hong Kong and various countries which would continue to be in force after 30 June 1997, and on 211 international conventions that would continue to be applied to the HKSAR after 30 June 1997. For the lists of the documents, see Leung (2006), pp. 413–416, 417–430.
288.
As pointed out by Leung (2006), p. 301, “[o]ne of the major differences between the common law system and the Chinese legal system is that the former places greater emphasis on ‘due process’ while the latter concentrates on ‘substantial justice’. Procedural justice is always more time-consuming and expensive, but its end result is usually nearer justice and farther away from injustice. That is the great value of a common law system.”
289.
See Dowdle (2007), pp. 56, 62 ff.
290.
Bogdanor (1999), p. 4.
291.
Bogdanor (1999), p. 8.
292.
Bogdanor (1999), p. 9 f. For a detailed description of the Scottish history from the Roman times until the Act of Union, see Pilkington (2002), pp. 25–29.
293.
Bogdanor (1999), p. 4. For a description of the historical background, see Bogdanor (1999), pp. 3–18.
294.
Bogdanor (1999), pp. 8–9, Himsworth and Munro (2000), p. viii.
295.
The Church of Scotland Act 1921 recognises the denomination as the national church of Scotland, but it is not an established church and it is independent of state control in matters spiritual.
296.
The treaty of union distinguished between “public right”, i.e., public law that would be regulated by the parliament of Great Britain, on the one hand, and “private right”, which would remain unaltered except if it became necessary, from the point of view of Scotland, to alter it. See Bogdanor (1999), p. 10.
297.
The Scottish Court of Session and other Scottish courts were guaranteed with the pledge that no Scottish lawsuit would be tried before an English judge. See Bogdanor (1999), p. 10.
298.
As reported by Bogdanor (1999), p. 11 f., and Himsworth and Munro (2000), p. viii, there were also some proposals to create a confederation with two parliaments.
299.
Bogdanor (1999), p. 11.
300.
Bogdanor (1999), pp. 14–15.
301.
Himsworth and Munro (2000), p. x, use the term administrative devolution and conclude that aspects of central government would be “conducted by a department which is defined territorially rather than functionally”. See also Pilkington (2002), p. 57 f. Also the separate Scottish court system could be understood to constitute a functional autonomy. Concerning administrative devolution allowing for a degree of administrative autonomy with functional responsibilities, see Mitchell (2007), pp. 35–40. On the forms of autonomy in Britain before the Good Friday Agreement concerning Northern Ireland and the devolution to Scotland and Wales, see also Leopold (1998), pp. 223–250.
302.
Bogdanor (1999), p. 111.
303.
Bogdanor (1999), p. 111 f.
304.
Bogdanor (1999), p. 115 f. As concluded by Hazell (2005a), pp. 226, 239 f., although these procedures still exist, they are, after devolution, disused in the case of Scotland.
305.
Bogdanor (1999), p. 116. As concluded in Bogdanor (1999), p. 117, before devolution ”Scotland was in the anomalous if not unique position of having a separate legal system, together with separate arrangements for the handling of executive business, but no separate legislature to which the Scottish executive could be held responsible”. In addition, there was a separate court system for Scotland.
306.
Trench (2007a), p. 55. This is probably also the reason why Trench (2007d), p. 173 f., is able to indicate that the UK Government’s internal administrative arrangements have been largely a continuation of those from before the devolution and lacks in overall co-ordination between the different UK departments.
307.
Bogdanor (1999), pp. 177–183. At the same time, a parallel administrative devolution to Wales was planned and carried out. Devolution has, however, a long history in Britain, starting from a short-lived devolution scheme for Ireland between 1782 and 1801 and continuing in the end of the nineteenth century in the devolution or home rule plans of Gladstone. See Trench (2007c), p. 3 f., and Pilkington (2002), pp. 41–44, who in fact makes the point that Gladstone developed a distinction between powers devolved to different territories and powers reserved to Parliament and did so to a large extent against the background of the British experience with dominions such as Canada. See also Pilkington (2002), p. 9, according to whom the original concept of devolution “was put forward by Edmund Burke at the end of the eighteenth century and formed part of his solution to the problems of the British government in dealing with the revolutionary American colonists and the Irish Catholics who were disenfranchised by the 1801 Act of Union”.
308.
Bogdanor (1999), pp. 183–188.
309.
As quoted in Bogdanor (1999), p. 188.
310.
Bogdanor (1999), p. 190, and Himsworth and Munro (2000), p. xi, who make the point that the referendum results led indirectly to a change of government, after defeat on a vote of confidence. For a break-down of the results, see also Pilkington (2002), p. 187.
311.
Bogdanor (1990), pp. 190–191. See also Pilkington (2002), pp. 58–64.
312.
Bogdanor (1999), pp. 196–198, and Himsworth and O’Neill (2003), p. 84 f. As pointed out by Bogdanor (1999), p. 196, the Conservatives and the Scottish National Party refused to participate in the Convention. The latter “declared that it could support only a directly elected convention prepared to draw up a constitution for an independent Scotland”. See also Pilkington (2002), pp. 68–71.
313.
See Pilkington (2002), p. 95 f. It is possible to say that due to the electoral victory of Labour in 1997 and its promises and pledges concerning devolution during the election campaign, it was relatively speaking easy to pass the Scotland Act in 1998 with less scrutiny in the UK Parliament than would have been the case later into the governmental period of Labour or if the Conservative Party had been in power, in which case the Scotland Act would not have been enacted at all.
314.
Its descriptive title is “an Act to provide for the establishment of a Scottish Parliament and Administration and other changes in the government of Scotland; to provide for changes in the constitution and functions of certain public authorities; to provide for the variation of the basic rate of income tax in relation to income of Scottish taxpayers in accordance with a resolution of the Scottish Parliament; to amend the law about parliamentary constituencies in Scotland; and for connected purposes”.
315.
Bogdanor (1999), p. 219, and Himsworth and Munro (2000), p. xii. The Scottish Constitutional Convention was not an elected body, but instead a collection of interested parties and persons, including members of the UK Parliament and the European Parliament, which produced a blueprint of Scottish devolution, completed by civil servants, and it also functioned as an effective pressure group for the plan.
316.
Bogdanor (1999), p. 1. For the passing of the Scotland Act 1998 in the UK Parliament, see also Himsworth and Munro (2000), pp. xiii–xvii, 5–6.
317.
Bogdanor (1999), p. 1.
318.
Bogdanor (1999), p. 15. For the political debates leading up to devolution, see Bogdanor (1999), pp. 166–202.
319.
See McFadden and Lazarowicz (2002), p. 92 f. The Scotland Office is now a part of the UK Ministry of Justice, and the Secretary of State is a full-time position, not anymore combined with another ministerial post, a development that reflects the new political situation that emerged when the SNP came to power after the Scottish parliamentary elections in 2007. According to Bogdanor (1999), p. 205, the Secretary of State for Scotland has no governor-general functions in the jurisdiction of Scotland and will not act as an intermediary between the Scottish Parliament and the Queen. In fact, according to Pilkington (2002), p. 119, the tasks of the Scottish Secretary have diminished so much that the post is not needed anymore in the form it has existed until recently. It is also possible to say that the Scottish Office patrols the border line between the two competences. See also Serving Scotland Better (2009), p. 125. However, it seems that formerly, the Scotland Office had more functions as a channel of communication, but they have been increasingly replaced by direct contacts between substance officials in Scotland and the UK.
320.
See also Himsworth (2006), p. 213 f., Himsworth and Munro (2000), pp. 80–91, and Pilkington (2002), pp. 112–114, as well as Bogdanor (1999), pp. 235–254, making the point on p. 239 that the tax-varying power of Scotland is minimal. See also Bell and Christie (2007), p. 77, according to which the block grant, determined on the basis of the so-called Barnett formula, “is part of a political process that allows the centre to retain tight control over the resources available to the devolved administrations and thus the extent to which they can differentiate their policies”. For a similar argument, see also Trench (2007b), p. 92, and Himsworth and O’Neill (2003), p. 395. Bell and Christie (2007), p. 77, also make the point that the Barnett formula is unique in the developed world, because there is no country other than the UK that allocates resources at a subnational level using a formula based on changes in spending elsewhere, rather than allocating levels of spending in relation to assessed need”. However, at least in the case of the Åland Islands, the block grant to the Åland Islands from the Finnish budget is determined on the basis of a percentage counted on the basis of the expenditures of the State, less the loans that the State has borrowed. While recognising that the block grant offers real autonomy in spending, Trench (2007b), p. 94 f., concludes that the block grant and the Barnett formula “makes the devolved administrations purely spending agencies, not fully functioning governments”, which the marginal tax-varying powers could not really save, placing the financial integration of Scotland in marked contrast to the generous legal and administrative powers devolved to Scotland. The consequence of the funding system can, along the lines indicated by Trench (2007b), pp. 96–112, be summarized by saying that the UK Treasury retains a high degree of power, on both the high constitutional level (for instance, organisational resources in comparison to the devolved administrations, control over the Barnett formula and economic and spending information) and the day-to-day operational one (for instance, lobbying, concrete spending decisions). See also Greer (2007), p. 153 f., according to whom the Barnett formula “distributes changes in spending on a strict per capita basis and thereby drives the whole UK towards equal per capita expenditure over time”. He also makes the point on p. 155 that the “vast bulk of devolved funding simply does not depend on agreeing with Whitehall on policy issues, as Scotland has shown by spending its Barnett funds on policies London rejected”. After all, there seems to exist a measure of independence in the spending decisions.
321.
See Himsworth and Munro (2000), pp. 91–101. The tax varying power could amount to up to 1 billion pounds in 2009, out of a total budget of the Scottish Parliament 27.4 billion pounds. See Serving Scotland Better (2009), pp. 71, 73.
322.
What is particularly problematic concerning the Barnett formula is that it is not very solidly established in the Scotland Act, because Art. 64(2) only says that the “Secretary of State shall from time to time make payments into the [Scottish Consolidated –MS] Fund out of money provided by Parliament of such amounts as he may determine”. This is in stark contrast to, e.g., the Åland Islands, where the lump sum is determined according to a formula established in the Self-Government Act. For an example of how the Barnett formula works, see Serving Scotland Better (2009), p. 265.
323.
Serving Scotland Better (2009), p. 66. See also Serving Scotland Better (2009), pp. 70–106.
324.
Serving Scotland Better (2009), p. 112.
325.
See, in particular, point 13 in Devolution. Memorandum of Understanding and Supplementary Agreements between the United Kingdom Government Scottish Ministers, the Cabinet of the National Assembly for Wales and the Northern Ireland Executive Committee. Presented to Parliament by the Deputy Prime Minister by Command of Her Majesty, December 2001/CM 5240. See also Leopold (1998), pp. 223–250; Himsworth (2006), p. 213; Himsworth (2007), passim.
326.
Himsworth and Munro (2000), p. xviii, and Himsworth and O’Neill (2003), pp. 93 f., 149, 164 f. See also Himsworth and Munro (2000), p. 49, making the point that this could theoretically take place in the last resort.
327.
McFadden and Lazarovicz (2003), p. 5. According to them, this means at the same time that the Scottish Parliament is not independent and not free to make laws in any area which it chooses.
328.
See Bogdanor (1999), p. 202, who makes the point that devolution rejects “both separatism, under which the Parliament of the United Kingdom would no longer have power to legislate for Scotland at all; and federalism under which the Parliament of the United Kingdom would have power to legislate for Scotland only in certain defined areas, other areas becoming the entire responsibility of the Scottish Parliament”. It thus seems that the Scottish Parliament would not have genuinely exclusive law-making powers, a point which is indirectly made in Trench (2007a), p. 54: “[e]xecutive devolution – unlike legislative devolution – is exclusive”.
329.
“We [the Government] envisage that there could be instances where it would be more convenient for legislation on devolved matters to be passed by the United Kingdom Parliament. However, … we would expect a convention to be established that Westminster would not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament.” As quoted in The Sewel Convention, volume 1: Report. Procedures Committee Report, 7th Report, 2005 (Session 2), SP Paper 428, PR/S2/05/R7, at http://www.scottish.parliament.uk/business/committees/procedures/reports-05/prr05-07-vol01.htm (accessed on 13 March 2009). See also Lords Hansard text for 21 July 1998, column 791, at http://www.publications.parliament.uk/pa/ld199798/ldhansrd/vo980721/text/80721-20.htm#80721-20_spnew2 (accessed on 12 March 2009). See also para. 13 of the Memorandum of Understanding, in which the contents of the Sewel convention are reiterated, and Hazell and Rawlings (2005), p. 6, and Winetrobe (2005), pp. 43–44.
330.
Serving Scotland Better (2009), p. 48.
331.
Therefore, as pointed out by Bogdanor (1999), p. 291, it is perhaps “in constitutional theory alone that full legislative power remains with Westminster. It is in constitutional theory alone that the supremacy of Parliament is preserved. For power devolved, far from being power retained, will be power transferred; and it will not be possible to recover that power except under pathological circumstances, such as those of Northern Ireland after 1968. Thus the relationship between Westminster and Edinburgh will be quasi-federal in normal times and unitary only in crisis times. For the formal assertion of parliamentary supremacy will become empty when it is no longer accompanied by a real political supremacy. (…) In Scotland then, the supremacy of Parliament will bear a very different and attenuated meaning after the setting-up of her parliament. It will certainly not mean the supremacy over ‘all persons, matters and things’ of the 1920 Government of Ireland Act”. However, it seems that the mechanism of legislative consent from the Scottish Parliament to the UK Parliament to legislate on devolved matters cuts at least materially if not formally into the position of the Scottish Parliament (see below).
332.
See also Himsworth and Munro (2000), p. xviii, according to whom the Scottish Parliament is “restricted to legislating within its conferred powers, and it has no exclusive sphere of competence. The continuing competence of the United Kingdom Parliament to legislate for Scotland, not merely on reserved matters but on any matter, is explicitly restated in section 28(7) of the Act”. However, it remains unclear what happens if the Scottish Parliament chooses not to legislate in a sphere where the UK Parliament has created legislation. If such a “white spot” emerges and the UK Parliament can not fill it with legislation, then the Scottish powers would be exclusive, but that is probably not the case at least in situations where the UK Parliament would feel that there is a national interest to make sure that even the Scottish jurisdiction has a rule for such a matter and decides to extend the application of UK law to Scotland, thereby filling the “white spot”.
333.
See, e.g., Page (2005), p. 7, who concludes that the Scottish Parliament does not have any claim of unlimited legislative competence, but “its law making powers are extremely broad, so broad in fact that there are few aspects of Scottish life that do not fall within its competence. Acts of the Scottish Parliament also have exactly the same force of law as Acts of the Westminster Parliament”.
334.
See Bogdanor (1999), p. 14, Himsworth and Munro (2000), p. ix, and Himsworth and O’Neill (2003), pp. 152–156.
335.
Bogdanor (1999), p. 288. As stated by Bogdanor (1999), p. 288, the most important power of the Scottish Parliament will be one not mentioned in the Act at all (or at least not among the devolved powers), “that of representing the people of Scotland. The basic premiss of devolution, after all, is that there is a separate political will in Scotland”.
336.
Bogdanor (1999), p. 292. As pointed out by Bogdanor (1999), p. 292: “It will not even be easy for Westminster unilaterally to alter the devolution settlement to Scotland’s disadvantage. (…) For, although the provisions of the Scotland Act can in theory be altered by a simple Act of Parliament at Westminster, it would in practice be very difficult to do so on a matter which the Scots regard as affecting their interests without the consent of the Scottish Parliament. Thus, in practice, the supreme body with the power to alter the provisions of the Scotland Act will be not Westminster alone, but Westminster together with the Scottish Parliament. In so far as any major amendment of the Scotland Act is concerned, Westminster will have lost its supremacy.” See also Henig (2006), p. 45, who makes the point that “in the absence of a written or codified constitution, the sole legal basis for the devolved institutions is Westminster statute which can be repealed or amended”. However, he admits that the probability is that “political factors would almost certainly inhibit any unilateral action”, although he at the same time refers to the abolition of the Greater London Council by the Conservative Government as an example of an instance where a lower tier has been abolished. The same political conclusion is drawn by Himsworth and Munro (2000), p. xviii.
337.
See also Himsworth and Munro (2000), p. xix.
338.
The Judicial Committee’s jurisdiction was transferred to the UK Supreme Court under section 40(4) and Part 2 of Schedule 9 to the Constitutional Reform Act 2005. As concluded in Bogdanor (1999), pp. 206, 293, the Judicial Committee of the Privy Council actually assumed functions of a constitutional court for devolution issues, both in the pre-assent and the post-assent stage. See also Bogdanor (1999), p. 293, making the point that the Judicial Committee is able to pronounce only on Scottish and not on Westminster legislation. It is able to “declare that a Scottish statute is repugnant to the constitution, i.e. that it contravenes the Scotland Act, but not that an Act of the Westminster Parliament is repugnant to it, since the supremacy of the Parliament is in theory preserved. Nevertheless, if the Judicial Committee decides a dispute in Scotland’s favour, it would be difficult for Westminster to legislate for Scotland on that matter when the Judicial Committee had ruled that it lay within the scope of Scotland’s transferred powers. The decisions of the Judicial Committee, therefore, may well have the consequence that the prerogatives of Westminster are diminished. If that happens, Westminster will lose yet another of the characteristics of a supreme parliament, the right to make any laws it wishes.”
339.
Bogdanor (1999), p. 294. Some interlocutors have pointed out hat at least so far, devolution has not reshaped the way in which the UK is governed in such a fundamental manner as predicted by Bogdanor in 1999.
340.
See Himsworth and O’Neill (2003), p. 145.
341.
See Himsworth and Munro (2000), p. 128, and Himsworth and O’Neill (2003), pp. 465, 507.
342.
One reason for the clear choice of the unitary state was the fact that “[o]nly Java-based delegates attended the principal opportunity to debate the shape of the future independent Indonesia, the Body for the Investigation of Indonesian Independence (Badan Penjelidik Kemerdekaan Indonesia, or BPKI) at the end of May 1945. Although a tenth of its 62 members had been born outside Java, there was no voice at that meeting for the concerns of the ethnic minorities. Not surprisingly, the body voted for a unitary republic.” “After independence was hastily proclaimed in a manner the Japanese could accept on 17 August, the Japanese-sponsored Committee for the Preparation of Indonesian Independence (PPKI) was called upon to authorize the constitution prepared earlier in Java, and lay the basis for the new state in a hurried three-day meeting.” See Anthony Reid, ‘Indonesia’s post-revolutionary aversion to federalism’, in Baogang 2007, p. 149.
343.
See also Lindsey and Santosa (2008), p. 8, and Reid (2007), p. 150 ff. In fact, the Netherlands transferred sovereignty unconditionally on 27 December 1949 to a federal republic, the Republic Indonesia Serikat (RIS), known in English as the Republic of the United States of Indonesia (RUSI), which had emerged as a negotiated compromise and lasted only eight months, before the Republicans won over the Federalists. As explained by Reid (2007), p. 152: “Unitarism became a part of the victorious nationalist package, and hence something that was not negotiable.”
344.
See law No. 1 of 1945 concerning local autonomy/decentralization.
345.
According Art. 1, para. 1, of the LoGA, the central government is identified as the President of the Republic of Indonesia empowered with the power of governance over the Republic of Indonesia as referred to under the 1945 Constitution of the Republic of Indonesia.
346.
According to Art. 1, para. 3, of the LoGA, a district/municipality is a part of a province constituting a legal social unit granted with special authority to manage and administer its local governance and social interests in accordance with the laws of and within the system and principles of the Unitary State of the Republic of Indonesia pursuant to the 1945 Constitution of the Republic of Indonesia, headed by a regent/mayor. Interestingly, decentralization in Indonesia goes actually from the national level directly to the district/municipality level, that is, to the sub-provincial level. Aceh is an exception in this respect, because there, devolution goes to the provincial level. However, funds of the central government are in many cases allocate directly to the district/municipality level, and the province of Aceh is not really satisfied with it. District/municipality governance is the administration of government-related affairs exercised by the district/municipality government and the district/municipality House of Representatives in accordance with their respective functions and authorities. Districts and municipalities are according to Art. 1, paras. 18–20, and Arts. 112–114 divided into several sub-divisions: Kecamatan (subdistrict) is the operational jurisdiction of the camat as a district/municipality apparatus for administrating governance of the kecamatan. Mukim is a legal social unit under the kecamatan consisting of a group of gampong with a set geographical boundary, led by an imeum mukim, or any other name such person may be called, who is positioned directly under the camat. Gampong, or any other term it may be called, is a legal social unit under a mukim and led by a keuchik or any other name such person may be called, having the authority to manage its own affairs. The self-government of Aceh hence consists of several layers and is, in principle, not only focused on the regional level. For the development of the Indonesian constitutional order from 1945, see Lindsey and Santosa (2008), pp. 8–22, and Lindsey (2008), pp. 23–45.
347.
See Lindsey (2008), p. 35 f., 39, who denotes the organ with the name ‘senate’, with quotation marks.
348.
As concluded by Lindsey (2008) p. 39, only one of the two houses, the House of Representatives of Indonesia (the Indonesian parliament) has legislative powers, while the Regional Representative Council can only refer laws to the former. It is, according to Lindsey, therefore not clear where the Regional Representative Council stands in the hierarchy in relation to the parliament and other constitutional bodies. “Like senates in, for example Australia and the United States, it could claim a special status as the legitimate voice of regional communities, rather than just political parties. This has the potential to create political difficulties later. The fact that the DPD members are elected as individuals while the DPR members are nominated by parties after the election, means that DPD members might reasonably claim that they are more legitimate representatives of the people than are the members of the DPR. This could become critical in any MPR debate over decentralisation and regional autonomy, where the DPD could be expected to align with the regions, while DPR party control means its members are likely to be more centralist. To date, however, the DPD has been largely a passive institution and has struggled to assert political influence.” See also Schmit (2008), p. 167, concerning the structure of the DPD. Each province elects four members to the DPD.
349.
Hence in principle, the state respects the local traditional society with its rights as long as such rights exist and they do not conflict with the national law. Historically, all regions had local law which was respected, but after 1960s, national law became more prominent and pushed aside local law. With the constitutional amendments 1999–2003, more variety in the legal order is accepted. What this could mean in concrete terms is that where the national law is already established, such as in much of the area of so-called public law, Aceh would probably not be able to establish deviating rules (such as driving on the right hand side), but in the area of so-called private law, deviations would be possible and they would also be most likely in the area private law, because the adat (i.e., customary law) exists mainly in the area of private law.
350.
See Schmit (2008), p. 148, who refers to the Special Autonomy Law for the Province of Papua (Law No. 21/2001).
351.
The five principles of the Pancasila, created by Professor Raden Supomo and launched by President Sukarno in 1945, at the time when Indonesia became independent. From the point of view of legal theory, the positioning of Pancasila is linked to the normative constructions of Hans Nawiasky, and the effect of the Pancasila is that the legal order and the hierarchy of norms does not become too positivistic, but retains features of more substantive justice. See Gueci (1999), and Bourchier (2008), p. 101 f. See also Fitzpatrick (2008), p. 510: “Although the precise boundaries of the Pancasila are unclear, in its core conception it encompasses the primacy of national unity, social, stability and a patrimonial state. All social organisations, including religious and legal entities, were obliged – in theory – to adopt Pancasila as their governing ideology (Law No. 8 of 1985). It has been, until recently, a compulsory subject in schools and universities. Indeed, in all fields of activity in contemporary Indonesia, notions such as Pancasila state, Pancasila democracy and Pancasila law are still the malleable metanorms by which law, civil activities and people-state relations are judged.”
352.
Having the largest Islamic population of all states in the world, there has been a discussion in Indonesia since the independence of Indonesia in 1945. The discussion has continued even past the decision by the MPR in 2002 not to amend the Constitution so as to give shari’a constitutional status. See Salim (2008), p. 1–2.
353.
Lindsey (2008), p. 34.
354.
For an analysis of the decentralization legislation in Indonesia, see Schmit (2008), pp. 146–187. The legislation on regional administration passed in 1974 during the authoritarian period effectively ended regional autonomy and contributed to creating a negative image for the concept of regional autonomy. See also Miller (2009), p. 44. As concluded in Schmit (2008), p. 150, decentralization was severely criticized because it was “linked to break-away tendencies of entire provinces, like Aceh, former Irian Jaya (now Papua) and Maluku”.
355.
Miller (2009), p. 41. In Schmit (2008), p. 147, the point is made that the form of the reform was coincidentally similar than the decentralization in the beginning of the twentieth century by the Dutch colonial power.
356.
Law Number 22 of 1999 on Regional Government. Decentralization was demanded by the reform movement after the end of the authoritarian reign of Suharto, and the first president after Suharto, President Habibie, who had little legitimacy after serving as vice-president of Suharto, responded with a policy of wide-ranging regional autonomy. See Lindsey (2008), p. 30 f. The regionalization legislation of 1999 was, however, criticized by the regions on the grounds of insecurity, because the laws were seen as “gifts from the centre that could be revoked at any time”, and the criticism led subsequently to the enactment of Articles 18, 18A and 18B of the Constitution. However, Schmit (2008), p. 147, makes the point that in the reform, the hierarchical position of the provinces above the regencies and cities was abolished, leaving provinces in an ambiguous dual position as autonomous regions and as extended administrative units of the central government. As is evident on the basis of our inquiry, this dual position is present also in the case of Aceh. For an analysis of the role of adat customs in regionalization of Indonesia during the reformation era after 1998, see Avonius (2004).
357.
Law Number 25 of 1999 on Fiscal Balance between the Central Government and the Regions.
358.
Law Number 32 of 2004 on Regional Governance (State Gazette of the Republic of Indonesia Year 2004 Number 125, Supplemental State Gazette Number 4437) as amended by Law No. 8 of 2005 on Enactment of Government Regulation in Lieu of Law Number 3 of 2005 on Amendment to Law Number 32 of 2004 on Regional Governance (State Gazette of the Republic of Indonesia Year 2005 Number 108, Supplemental State Gazette Number 4548).
359.
Law No. 12 of 2003 on the General Election of Members of the House of Representatives (DPR), Regional Representative Council (DPD), Provincial House of Representatives (DPRD Propinsi) and District/Municipality House of Representatives (DPRD Kabupaten/Kota) (State Gazette of the Republic of Indonesia Year 2003 Number 37, Supplemental State Gazette Number 4277).
360.
Law Number 31 of 2002 on Political Parties (State Gazette of the Republic of Indonesia Year 2002 Number 138, Supplemental State Gazette Number 4251).
361.
Law Number 33 of 2004 on Financial Balance between the Central Government and Regional Governments (State Gazette of the Republic of Indonesia Year 2004 Number 126, Supplemental State Gazette Number 4438).
362.
Law Number 24 of 1956 on the Formation of the Autonomous Region of Atjeh and Amendment to the Regulation of the North Sumatera Province (State Gazette of the Republic of Indonesia Year 1956 Number 64, Supplemental State Gazette Number 1103). See also Miller (2009), who points out that the central government failed to honor the terms of the Darul Islam settlement of the 1950s, in particular those related to religion. According to Reid (2007), p. 153, the practical grievances that led to strife in Aceh in the beginning of the 1950s “were all about the loss of the total autonomy and control of local resources which they had enjoyed in the period 1946-50”, with demands of a federal state. At that point, the central government also realized that it had been a mistake to try to amalgamate Aceh into a North Sumatra Province.
363.
Law Number 44 of 1999 on the Exercise of Special Authority of the Special Province of Aceh (State Gazette of the Republic of Indonesia Year 1999 Number 172, Supplemental State Gazette Number 3893).
364.
In addition, the Indonesian legislature created in the year 2000 the free port of Sabang on an island in the immediate vicinity to the north of Banda Aceh, the capital of Aceh, under Law Number 37 of 2000 on the Enactment of Government Regulation in Lieu of Law Number 2 of 2000 on Free Trade Area and Free Seaport of Sabang to become a Law (State Gazette of the Republic of Indonesia Year 2000 Number 525, Supplemental State Gazette Number 4054).
365.
Miller (2009), p. 50.
366.
Miller (2009), p. 42.
367.
See Miller (2009), p. 47.
368.
Law No. 18/2001. See also Schmit (2008), p. 148, and Reid (2007), p. 154 f.
369.
Miller (2009), p. 155 f., Drexler (2008), p. 41. For the initial contacts before the Tsunami, see also Husain et al. (2007), pp. 1–74.
370.
The sense of urgency created in the aftermath of the Tsunami is also recorded in the preamble of the Memorandum of Understanding, according to which the parties are “deeply convinced that only the peaceful settlement of the conflict will enable the rebuilding of Aceh after the tsunami disaster on 26 December 2004 to progress and succeed”. As pointed out by Miller (2009), p. 183, the resolution of the conflict through self-government “stemmed from the recognition by both parties that they could not militarily defeat each other, as well as their genuine desire to reach a negotiated settlement”. For a personal account of the negotiations, see Husain et al. (2007), pp. 77–133.
371.
See Miller (2009), p. 158, who points out that the “first round of talks were almost derailed by GAM’s refusal to accept the Indonesian government delegation’s demand that the rebels accept ‘special autonomy’ as a final solution to the conflict” and that during the second round of negotiations, the Indonesian delegation agreed to replace ‘special autonomy’ with the less politicized term of ‘self-government’”. As pointed out by Reid (2007), p. 155, “[i]n relation to the unitary bias of Indonesian state nationalism since 1945, the peace agreement was a remarkable reversal”.
372.
The omission of the term “self-government” is certainly interested against the background of the fact that the negotiations actually focused on the form of self-government in Aceh. See, e.g., Miller (2009), p. 158, who makes the point that after the break-through, the talks were devoted to “focusing on what self-government would mean in an Acehnese context and how it could be achieved without compromising Indonesia’s territorial sovereignty”.
373.
The exclusion of the term self-determination from the MoU was understandable against the background that the GAM dropped its demand of independence for Aceh when the Helsinki process progressed past the Tsunami.
374.
The exclusion of the term autonomy from the MoU did not prevent the inclusion of that term in the LoGA in several provisions, in particular concerning the Special Autonomy Fund, but also as a reference to the special autonomy of Aceh. See below. The term autonomy is also used in the Explanatory Note to the LoGA, for instance, in its introduction: “This situation has motivated the creation of a Law on the Governing of Aceh based on the principle of broad autonomy. The granting of broad autonomy in the political sector to the Aceh people and the administration of regional governance according to the principles of good governance – that is, transparent, accountable, professional, efficient and effective – is aimed at achieving the maximum prosperity for the people of Aceh. In the implementation of this broad autonomy, the people of Aceh shall play an active role in formulating, deciding, implementing and evaluating regional governance policies.” It deserves to be mentioned already in this context, that the LoGA does not utilize the terms “self-government” or “self-determination”.
375.
See Miller (2009), p. 159.
376.
The Aceh Monitoring Mission, a joint operation by the European Union and the ASEAN, was finished on 15 December 2006. For the final report, see http://www.aceh-mm.org (accessed on 14 June 2009). After that point of time, the international involvement in the matter has been less formal.
377.
In researching and writing on the autonomy of Aceh, an unofficial translation of the Law on the Governing of Aceh and the corresponding Explanatory Notes, as enacted by the Government of Indonesia on 1 August 2006, were used. The final English version was compiled by USAID by using, inter alia, documentation and preliminary translations of the LoGA provided by Aceh Monitoring Mission (AMM) and International Organization for Migration (IOM).
378.
See Miller (2009), p. 159. It should be noted that the LoGA was prepared in a participatory manner. For instance, at the provincial level, three local universities, the Syiah Kuala University, Malikusaleh University and the Ar-Raniry State Islamic Institute, were asked to make contributions to the LoGA (which actually led to a number of inconsistencies in the law and in unnecessary repetitions of such substantive law that would anyway be in force elsewhere in national law). In the Indonesian parliament, different NGOs could contribute to the legislative process with their comments.
379.
See also Miller (2009), p. 186.
380.
See Miller (2009), pp. 171 f., 177 ff.
381.
See Schmit (2008), p. 152.
382.
Miller (2009), p. 165.
383.
Miller (2009), p. 167. See also Miller (2009), p. 186: “The omission from the LoGA of key provisions in the Helsinki MoU is an ongoing source of dispute between Aceh and Jakarta and a potential basis for future conflict.”
384.
Inter alia, that there should be a reference to the MoU in the preamble of the LoGA, that the reference in Art. 11(1) to norms, standard and procedure of national supervision should be omitted, that the term “consideration” in Art. 8 should be changed to “consent”, that the role of the Indonesian military should be only external defense and that it should be prevented from internal activities in Aceh, that Aceh should be allowed to commit to external loans directly and not only via the central government, and that the direct international access of Aceh should be guaranteed. See the matrix entitled ‘Implementation of the Helsinki MoU – GoI and GAM version’, at http://www.bra-aceh.org/mi_matrix.php (accessed on 14 June 2009). While many of the provisions of the MoU have been implemented, the lack of implementation or erroneous implementation of several provisions has been identified by the Helsinki MoU Watch as critical, important or requiring clarification. See ‘Compilation of Most Serious Concerns Regarding The Implementation of the Helsinki MoU, at http://www.braaceh.org/download/archive/helsinki_mou/Compilation_of_Most_Serious_Concerns_Regarding_The_Implementation_Of_The_Helsinki_MoU.pdf (accessed on 14 June 2009). See also Miller (2009), p. 167.
385.
Lindsey (2008), p. 31, approaches the issue from a somewhat different point of view after noting the regionalization laws were criticized by the regions for the reason that they could be revoked at any time. “Constitutional form was therefore demanded to provide a hedge against policy reversal by a future government”, something which was granted in Articles 18, 18A and 18B in a manner which mirrors the spirit of the regionalization laws. This interpretation would indicate that the regionalization legislation, including the LoGA, could not be easily revoked by a future parliament, that is, that in the case of Aceh, Art. 18B, in particular, would protect the LoGA against attempts to amend it in the Indonesian parliament. This, in turn, could give reason to conclude that the LoGA is not an ordinary piece of law enacted by the Indonesian parliament that could be revoked at any time by the parliament. From that perspective, the effect of Art. 18B of the Constitution on the LoGA could well be that the position of the LoGA is elevated in our chart describing different autonomy positions, more specifically on the continuum between ordinary law and constitution. The introduction to the Explanatory Notes on the LoGA sustain his by saying that the “broad autonomy is fundamentally not merely a right, but more than that; it is a constitutional obligation to be used to the maximum extent for the welfare of Aceh” (italics by MS). It might be possible to think that the LoGA is an organic law of some sort, implementing the constitutional provision, in particular because the LoGA introduces a weak regional entrenchment in respect of its own amendment which requires the “consultation and consideration” by the DPRA in Aceh.
386.
However, in the introduction to the Explanatory Notes to the LoGA, an explicit mention of the MoU is included: “The Memorandum of Understanding between the Government and the Free Aceh Movement, which was signed on August 15, 2005, signified a new step in the history of Aceh Province and in the life of its people, towards a peaceful, just, thriving, prosperous, and dignified condition. What should properly be understood is that the Memorandum of Understanding is a form of honorable reconciliation with the objective of sustainable social, economic, and political development in Aceh.”
387.
In fact, the introduction to the Explanatory Notes to the LoGA places the governance of Aceh in the larger context of Indonesian governance: “This Law expressly regulates that the Aceh Government is an inseparable part of the Unitary State of the Republic of Indonesia, and that the broad autonomy applied in Aceh based on this Law constitutes a subsystem within the national system of governance.”
388.
Some caveats are necessary in relation to our research concerning Aceh. The analysis of the autonomy of Aceh is carried out in a somewhat uncertain normative environment. So far, there are only two norms that have been issued, namely the Government Regulation No. 20/2007 on Local Political Parties and the Presidential Decree No. 75 of 2009 concerning the Consultation Procedure and the Recommendation made by the DPRA and Aceh Government. The lack of secondary legislation about the details of the autonomy arrangement should nonetheless not produce any such result in this inquiry that would be completely overturned after the secondary legislation is in place and is being implemented. Because the autonomy of Aceh is so recent, there is also a lack of doctrinary writings and court judgments that would specify the position of Aceh in the Indonesian state system. Therefore, interviews with a number of experts on the Acehnese autonomy were carried out in May 2009 both in Aceh and in Jakarta to acquire information about the contents of the autonomy arrangement and the different interpretations that exist at the moment. See also an assessment by May 2006, which touches on many of the issues included in our study.
389.
According to Art. 1, para. 21, of the LoGA, an Aceh qanun is defined as a “legal regulation equivalent to a provincial regulation governing the conduct of governance and social life in Aceh”. The term qanun is hence not a reference to anything very unique, but only a denomination from a local perspective of what is enacted as regulations at the provincial level elsewhere in Indonesia. A qanun and a provincial regulation are thus norms of a generally applicable nature within the provincial jurisdiction the enactment of which should have a legal basis in national law. Under Art. 1, para 22, similar bylaws under the name qanun can be enacted at the district/municipal level in Aceh: “District/municipality qanun is a legal regulation equivalent to a district/municipality regulation governing the conduct of district/municipality governance and social life in Aceh.” According to Art. 21(3), the organizational structures and procedures for the governance of Aceh and its districts/municipalities shall be governed by qanun, which means that each of the two levels of governance seem to have some authority over its own organization, because it is empowered to pass a qanun of its own dealing with organizational matters.
390.
There is an issue about the possible secession of two provinces from Aceh, which is partly an ethnic issue involving the Gayo people (the central government plays in part politically on this), partly a development issue.
391.
According to para. 1.1.4 of the Memorandum of Understanding, the borders of Aceh correspond to the borders as of 1 July 1956. The territorial jurisdiction of Aceh as determined in the LoGA is not entirely in keeping with this pledge, and the GAM has expressed dissatisfaction about the situation, but has chosen to go forward with the implementation of the LoGA. See Miller (2009), p. 164.
392.
Concerning the national organization of the lower levels of local government, see Schmit (2008), p. 168 f., who concludes that through Government Regulation No. 8/2003, kecamatan and kelurahan were effectively placed under central government control, leaving regencies and cities with less power. Finally, it seems that mukim will merely consist of gampong, because under Art. 267 of the LoGA, kelurahan will be gradually replaced with gampong. The possibility to eliminate gampong is a decision made by means of a qanun of a district/city.
393.
As pointed out by Miller (2009), p. 171 ff., the GAM, when it participated in the political process during the implementation of the LoGA, “remained fundamentally opposed to what it saw as Jakarta’s imposition of Syari’ah on the Acehnese people”, and it seems that the Partai Aceh, the political formation of the previous GAM, has continued to remain opposed to the Islamic law. The Syari’ah provisions in the LoGA are in principle a carry-over from the previous NAD law, and a basic Islamic law framework had already been established in accordance with the NAD law and on the basis of some Islamic qanun of Aceh. The Islamic law was therefore implemented already from 2003 on, although the implementation was limited in the beginning. A broader implementation of Islamic law started only after the Tsunami of 2004, which many Acehnese interpreted as a divine punishment for failure to abide by Islamic law. See also Salim (2008), p. 163 f.
394.
As established in para. 1.1.5 of the MoU, Aceh has the right to use regional symbols including a flag, a crest and a hymn.
395.
This is based on para. 1.1.3 of the MoU, according to which the name of Aceh and the titles of senior elected officials will be determined by the legislature of Aceh after the next elections.
396.
The decision of the Governor is likely in contravention with national norms and decisions, because according to the Indonesian legal system, the decision made by a lower authority (in this case Governor’s regulation) should not contradict a decision made by a higher authority (in this case Art. 251 of the LoGA).
397.
This mechanism is also a carry-over from the previous NAD law and is, in fact, also featured in Art. 31(4) of the Constitution of Indonesia as a rule for the state budget, which indicates that Indonesia is involved in a serious investment in education. As concerns Aceh, the mechanism is according to Miller (2009), p. 179, expected to result during the financial year of 2008–2009 alone to amount “to a staggering US$360 million”. “Since the introduction of the NAD law, however, Aceh’s education system has seen few improvements. School attendance rates in Aceh have remained well below the national average, in part because of corruption and financial mismanagement at all levels of the state bureaucracy, and in part because of the conflict, when hundreds of schools were burnt down and tens of thousands of Acehnese families were displaced by the violence. The biggest blow to Aceh’s education system, however, was delivered by the tsunami, which killed some 2,000 school teachers and more than 200 university lecturers, and disrupted the education of about 140,000 elementary school students and 20,000 high school students.”
398.
As established in Art. 198, every delegation of authority by the Indonesian Government to the Governor of Aceh as a representative of the Indonesian Government in Aceh shall be accompanied by relevant funds. Article 199 expresses the principal point that all goods procured using deconcentration funds shall become state property. However, state property referred to in paragraph (1) may be granted to the Government of Aceh. The same is true under Art. 201 concerning goods procured using assistance task funds.
399.
According to Art. 200, every support task given by the Indonesian Government to the Government of Aceh (and to the governments of districts/municipalities and mukim/gampong) shall be accompanied by funds.
400.
Funds from shared earnings derived from hydrocarbon and other natural resources, namely share of earnings from forestry, in the amount of 80%, share of earnings from fisheries, in the amount of 80%, share of earnings from general mining, in the amount of 80%, share of earnings from geothermal energy, in the amount of 80%, share of earnings from oil mining, in the amount of 15% and share of earnings from natural gas mining, in the amount of 30%. In addition to the Shared Earnings Funds, the Government of Aceh shall receive additional Shared Earnings Funds from oil and natural gas that shall constitute a portion of the revenues of the Government of Aceh, namely share of earnings from oil mining, in the amount of 55% and share of earnings from natural gas mining, in the amount of 40%. See also Miller (2009), p. 166, according to whom the natural resource revenue (and the right to implement Islamic law) was essentially a reconstituted version of the previous law on special autonomy. As pointed out by Miller (2009), p. 167, under the LoGA, “Aceh’s natural resources continued to be collected by the Finance Ministry in Jakarta and redistributed back to Aceh”. In addition, Miller (2009), p. 177, points out that Aceh’s revenue-sharing arrangements with Jakarta from the fiscal year of 2008–2009 on “are slightly more generous than those outlined in the NAD law”. Hence it seem that most of the financial arrangement in the LoGA is a carry-over from the former NAD law. The problem in the context is the transparency in determining the total earnings collected in Jakarta. For transparency and efficiency, gas and oil extracting in Aceh shall be managed jointly by the central government and the Government of Aceh according to a procedure that is regulated through a government regulation. This condition is different in comparison with other provinces in which gas and oil extraction is fully under central government authority. Hence in relation to other parts of Indonesia, the revenue sharing in Aceh seems generous and they certainly should have the effect of placing Aceh in a different economic league altogether. As pointed out in Schmit (2008), p. 175, allocations between the centre, province and local government vary between different categories: “In the oil and gas sectors the state shares are high at 85 and 70 per cent and provincial shares relatively low at 3 to 6 per cent, leaving 6 to 12 per cent to local governments and another 6 per cent to other local governments in the same province. In the mining, forestry and fishery sectors, local host government shares can run as high as 32 per cent to 64 per cent, with the remaining 16 per cent and 20 per cent for the provinces and the centre and nothing for fellow local governments within the province.”
401.
Equalization funds consist of funds from shared tax proceeds, namely share of revenues from the Land and Building tax, in the amount of 90%, share of revenues from Land and Building Right Purchase Duty, in the amount of 80% and share of revenues from Income Tax (Income Tax from Articles 25 and 29 for domestic personal tax subjects, and Income Tax from Article 21), in the amount of 20%.
402.
According to Art. 183, the Special Autonomy Fund referred to in Article 179 paragraph (2) point c shall constitute revenue of the Aceh Government to be used to pay for development, especially construction and maintenance of infrastructure, community economic empowerment, poverty eradication, and funding for education, social programs, and health. The Special Autonomy Fund is, however, of a temporary nature and shall be available for a period of 20 years, the amount of which from the first to the fifteenth years shall be equal to 2 percent of the National General Allocation Fund ceiling, and from the sixteenth through the twentieth years shall be equal to 1 percent of the National General Allocation Fund ceiling. See also Miller (2009), p. 177.
403.
In para. 1.1.6 of the MoU, it is said that “Kanun Aceh will be re-established for Aceh respecting the historical traditions and customs of the people of Aceh and reflecting contemporary legal requirements of Aceh”.
404.
As provided in the rules concerning criminal jurisdiction in Art. 129, in the event of a criminal act (jinayah) committed jointly by two or more persons, among whom are one or more non-Muslims, the alleged non-Muslim perpetrator(s) may choose to submit themselves to jinayah law instead of the National Criminal Code. However, any non-Muslim person committing a criminal act (jinayah) that is not governed by the National Criminal Code or by criminal provisions outside the National Criminal Code shall have jinayah law applied to his/her case. Acehnese residents committing a jinayah criminal act outside Aceh shall be subject to the provisions of the National Criminal Code. In September 2009, the outgoing DPRA adopted a Jinayat Qanun, that is, an Islamic criminal code, which introduced such punishments as stoning. The Governor of Aceh refused his assent to the qanun, and returned the enactment to the DPRA, which in effect means that the new DPRA, in office since October 2009, will reconsider the draft.
405.
For the purpose of implementing the provision, the Aceh Government shall coordinate with the Indonesia Broadcasting Commission for the Aceh Region to set guidelines for broadcasting ethics and broadcast program standards. According to the Explanatory Note to the LoGA, what is meant by the authority to set provisions related to the press and broadcasting is the “oversight of the content or circulation of press and broadcast products to ensure they do not contravene Islamic values”. The Aceh Government is thus empowered to control the contents of the freedom of expression.
406.
For instance, the judges of the Syari’yah courts are appointed by the President of Indonesia. As stated in Art. 128, the administration of Islamic Law in Aceh shall be a part of the national judicial system under the jurisdiction of the religious judiciary that is executed by the Syari’yah Court, which is free from any external influence. The Syari’yah Court is a court of law for all persons of the Islamic faith located in Aceh and it has the authority to examine, try, rule upon, and resolve cases that fall into the areas of ahwal al-syakhshiyah (family law), muamalah (civil law), and jinayah (criminal law), based on Islamic Law, the further provisions of which are governed by Aceh qanun. A qanun shall, under Art. 132, also govern the procedural law in syari’yah courts. However, implementation of other aspects of syari’at Islam, such as ibadah (worship), akhlak (conduct) and dakwah (Islamic summons) is not the authority of the Syari’yah courts, but the authority of the Government of Aceh and of the government of district/city, as mentioned in Art. 128(3) of the LoGA. It should be noted that, according to Art. 133, the tasks of conducting inquiries and investigations for the enforcement of Islamic Law with respect to jinayah falling under the jurisdiction of the Syari’yah Court shall be performed by the Indonesian National Police and Civil Service Investigators, whose functions and recruitment shall be governed by an Aceh qanun. On the Syari’yah Court, see Salim (2008), p. 164 f. Miller (2009), p. 176, points out that the implementation of Islamic law in Aceh is not of the most rigorous kind, but employs practices that are leaner than, for instance, those practiced in the Malaysian provinces of Kelantan, Negeri Sembilan and Kedah. However, several qanun prescribe caning as punishment for crimes. See, e.g., the report by the International Development Law Organization entitled ‘Review on the Revisions being made to the Three Qanuns on Jinayah’ of 1 November 2008, at http://www.aceheye.org/data_files/english_format/issues/issues_women/women_2008_11_01.pdf (accessed on 11 June 2008), in which the Government proposed amendments to existing qanuns in order to specify the implementation. According to Salim (2008), pp. 159, 166, before the Tsunami in 2004, not a single person had been caned. However, after the Tsunami, even public canings have taken place, but probably not without the authorization of the national Government. See also Salim (2008), p. 167, who concludes that “as both the police and the public prosecution are not decentralized but remain Jakarta-based, nationwide institutions, the actual implementation of shari’a in Aceh remains more or less entirely under the control of the nation-state of the Republic of Indonesia”.
407.
The Wali Nanggroe is based on para. 1.1.7 of the MoU, according to which the institution of Wali Nanggroe with all its ceremonial attributes and entitlements will be established, but the institution is actually a carry-over from the NAD law. Under Art. 96, the Wali Nanggroe institution constitutes a traditional customary (adat) leadership as a unifier of the people that is independent, has authority, and has the jurisdiction to develop and oversee the implementation of adat institutions and adat affairs, the awarding of titles and honors, and the exercising of other adat rites. The Wali Nanggroe institution shall be neither a political nor a government institution in Aceh. The Wali Nanggroe institution shall be led by a person, the Wali Nanggroe, who acts on an individual and independent basis. Further provisions regarding candidacy requirements, election procedures, electorates, terms of office, position protocols, finances, and other matters concerning the Wali Nanggroe shall be governed by Aceh qanun. According to Art. 97, the Wali Nanggroe shall be entitled to award honorary titles or adat designations to individuals or organizations, whether domestic or overseas, pursuant to criteria and procedures governed by Aceh qanun.
408.
Concerning adat law, see, e.g., Holleman and Sonius (1981), Avonius (2004), p. 6.
409.
As agreed in para. 1.2.5 of the MoU, all Acehnese residents will be issued new conventional identity cards prior to the elections of April 2006.
410.
Human rights violations that could be tried as violations by such a human rights courts could be, inter alia, mass killings, displacement of civilians, etc., that have occurred after the signing of the LoGA.
411.
There is a potentially serious claw-back clause regarding freedom of expression in Art. 153, according to which the Government of Aceh shall have the authority to set provisions related to the press and broadcasting, based on Islamic values (the national free speech legislation seems to have a somewhat similar provision). Further provisions related to the control of content of speech shall be governed by Aceh qanun, which makes it possible at least in theory to implement the wish of the Acehnese to maintain a certain life-style. For the purpose of implementing the control the content of speech, the Government of Aceh shall coordinate with the Indonesia Broadcasting Commission, Aceh Region, to set guidelines for broadcasting ethics and broadcast program standards. However, attempts to impose such control may be impracticable, because the relatively secular Jakarta TV is seen in Aceh, too.
412.
In Aceh, the freedom of religion seems to translate, on the basis of the LoGA, into a freedom to be Muslim.
413.
However, the human rights court has not been established as of May 2009. One piece of criticism in the context is that the human rights court would evidently not be empowered to try past violations of human rights. See Miller (2009), p. 167. In addition, the establishment of the national Truth and Reconciliation Commission was halted by the decision of the Constitutional Court of Indonesia No. 006/PUU 4/2006, which revoked the Law No. 27 of 2004, which has to some extent affected the work of the sub-national branch of the same in Aceh, although there is a legal basis for the latter in Art. 229 of the LoGA.
414.
The Explanatory Notes attached to the LoGA indicate that the provision creating the human rights in the LoGA is sufficiently clear.
415.
Indonesia ratified both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights on 23 February 2006. In a Declaration worded similarly for both covenants, filed with ratification, Indonesia made an explanation that is of relevance for Aceh: “With reference to Article 1 of the International Covenant on Civil and Political Rights [and of the International Covenant on Economic, Social and Cultural Rights – MS], the Government of the Republic of Indonesia declares that, consistent with the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the Declaration on Principles of International Law concerning Friendly Relations and Cooperation Among States, and the relevant paragraph of the Vienna Declaration and Program of Action of 1993, the words ‘the right of self-determination’ appearing in this article do not apply to a section of people within a sovereign independent state and can not be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent states.” The explanation does not concern the other substantive rights of the two covenants, so at least in principle, these covenantal rights could be available as a source for the human rights court.
416.
The primary (and apparently also secondary) education is free of charge and shall be provided based on the principles of democracy and justice, with full respect for upholding human rights, Islamic values, local culture, and societal pluralism. As explained by the International Development Law Organization in its report ‘A Brief Account on the Qanun on Education in Aceh’ from November 2008, at http://www.aceh-eye.org/data_files/english_format/ngo/ngo_idlo/ngo_idlo_2008_11_00.pdf (accessed on 11 June 2009): “The Aceh government’s promise of providing free education to children from 7–18 years of age has been fulfilled by means of Qanun No. 5 year 2008 on Education, which has recently been passed by the Aceh parliament (DPRA). The Qanun provides the guarantee for Acehnese children to have access to education, at least until secondary school level. Free education is also provided for children with mental disabilities and the government has provided special schools for this purpose. The Qanun on Education becomes even more interesting not only because it aspires to provide education of a national character but also because it regulates on the need for a special Acehnese local content to be taught as a school subject as well for example the unique status of Aceh and its enforcement of Syar’iah.” The Qanun was proposed by the Aceh Government.
417.
Autonomy is a legal term in some domestic jurisdictions, such as Spain, where a right to autonomy is formulated in Art. 2 of the Constitution.
418.
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the U.N. General Assembly on 24 October 1970 (G.A. Res. 2625/XXV).
419.
Western Sahara, Advisory Opinion, I.C.J. Reports 1975, at 59.

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Suksi, M. (2011). Conflict Resolution in a Self-Determination Context as a General Frame for Sub-state Arrangements. In: Sub-State Governance through Territorial Autonomy. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-20048-9_4

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DOI: https://doi.org/10.1007/978-3-642-20048-9_4
Published: 14 June 2011
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