Kedudukan Nota Kesepahaman (Mou Helsinki) antara Pemerintah Republik Indonesia dan Gerakan Aceh Merdeka dalam Hukum Tata Negara di Indonesia

Abstract

Hans Kelsen states that legal source (Rechtsbron) is usually a law in which a legal norm “is higher” than “a low legal norm,” or, a low establishment of a norm is determined by a “higher norm.” The practice in constitutional in Indonesia positions Pancasila as the source of all legal sources and is simplified in the form of the prevailing types and hierarchies. Law No. 12/2011 on the Establishment of Legal Provisions states that the types and hierarchies consist of the 1945 Constitution of the Republic of Indonesia, the Ruling of the People’s Consultative Assembly, Law/Regulation in Lieu of Law, Government Regulations, Presidential Regulations, and Provincial District/Town Government Regulations. Aceh as one of the regional Autonomies in the context of the Unitary State of the Republic of Indonesia, in practicing the organizing of regional government, repeatedly stated that it did not only position the type and hierarchy of legal provisions according to Law No. 13/2011 on the Establishment of Legal Provisions but also positioned Helsinki MoU as one of the legal sources. The problems of the research were as follows: 1) why the Indonesian Government and the Acehnese Freedom Movement agreed on the Memorandum of Understanding (Helsinki MoU) between the Indonesian Government and the Acehnese Freedom Movement, 2) how about the position of the Memorandum of Understanding (Helsinki MoU) between the Indonesian Government and the Acehnese Freedom Movement in the domain of the Indonesian Constitutional Law, and 3) why the implementation of the Memorandum of Understanding (Helsinki MoU) between the Indonesian Government and the Acehnese Freedom Movement became a Rechtsidee (legal right idea) in the legal political development in Aceh. The research used judicial normative, prescriptive, non-judicial (political aspect), and futuristic approaches. The secondary data consisted of primary, secondary, and tertiary legal materials. The data were analyzed qualitatively, using both judicial and non-judicial data. The result of the research showed that 1) the Indonesian government and the Acehnese Freedom Movement agreed on the Memorandum of Understanding (Helsinki MoU) between the Indonesian Government and the Acehnese Freedom Movement which were based on some foundations: a. philosophical foundation (Pancasila), b. judicial foundation (TAP MPR No. VI/MPR/2002, c. political foundation (the political will of the President Susilo Bambang Yudhoyono and the Vice President Jusuf Kalla, and d. natural disaster (the earthquake and tsunami in 2004), 2) the position of the Memorandum of Understanding (Helsinki MoU) in the domain of the Indonesian Constitutional Law could be positioned as the legal material source, but Helsinki MoU did not have any forms in formal legal source as it was stipulated in Law No. 12/2011 on the Establishment of legal provisions. Based on the International Law, the Memorandum of Understanding (Helsinki MoU) could not be positioned as the form of the International agreement because one of the parties (the Acehnese Freedom Movement) did not meet the elements of the subject of the international law, and 3) there were some stakeholders who often positioned the Memorandum of Understanding (Helsinki MoU) as Rechtsidee, especially in the legal political development through legal provisions. This was because of the factor of the difference in interpreting the norms embodied in the Memorandum of Understanding (Helsinki MoU) and in Law No. 11/2006 on Aceh system of government. Besides that, there was shock of paradigm among the stockholders in Aceh which was caused by the slowdown of the Indonesian government in implementing all norms which had been confided by Law No. 11/2006 on Aceh system of government. It is recommended that 1) the Indonesian government should implement various organic regulations in Law No. 11/2006 on Aceh system of government as soon as possible, 2) all stakeholders in Aceh should be pragmatic in running the government system, especially in positioning Rechtsidee as philosophical paradigm, national law as judicial paradigm, and self-government as political paradigm, and 3) all stakeholders in Aceh who have direct authority in the process of establishing legal provisions to establish legal provisions should comply with the principles and theories of the establishment of good legal provisions, laws, and regulations.