The Jakarta Post, November 18, 2004
Court ruling perpetuates conflict in Papua
Ridwan Max Sijabat, The Jakarta Post
The decision by the Constitutional Court on the judicial review of Law No. 45/1999 in
Jakarta on Thursday surprised many, including those opposed to and those who
support the controversial formation of West Irian Jaya province.
Accompanied by Papua governor Jaap Solossa, Papua Legislative Council Chairman
John Ibo who filed a request for the judicial review, expressed disappointment with the
verdict, saying the decision with its strong political overtones did not provide a solution
to the core issue in the country's easternmost province.
Acting governor of West Irian Jaya Octavianus Brahm Atururi and officials from the
home and defense ministries and the National Intelligence Agency (BIN) seemed
pleased by the decision that acknowledges the existence of the new province.
However it is unclear whether the new province will enjoy the special autonomy status
as Papua does under Law No. 21/2001.
The Court buried Law No. 45/1999 -- on the formation of West and Central Irian Jaya
Provinces and that of several new regencies, including Paniai, Puncak Jaya and
Mimika -- because its enforcement was not in line with Law No. 21/2001. The two
laws were not in conflict with the Amended 1945 Constitution but their enforcement
raised serious implications in the field.
Eight of nine judges were of the same legal opinion that West Irian Jaya and the new
regencies under it remained valid, although Law No. 45/1999 was no longer effective.
They argue that the special autonomy law took effect after the new province and
regencies were formed, and no state institutions have annulled the law.
The judges argue that the new province and regencies should be accepted because
they have their own administration and legislatures and representatives in the House
of Representatives who were elected in the April legislative election.
The Constitutional Court's ruling, which is final and binding, has left legal and political
uncertainty for both Papua and West Irian Jaya.
West Irian Jaya and the new regencies were accepted although they have no legal
basis. Like other provinces, regencies and/or mayoralties, the new province and
regencies formed under the already annulled law, need new laws as the legal basis for
their formation and a valid administration in the future.
In addition, many legal experts are baffled by the court's argument that Law No.
45/1999 remained effective in spite of Law No. 21/2001 as long as no relevant
authorities had declared the former law ineffective.
Judge Maruarar Siahaan in his dissenting opinion argues that West Irian Jaya's
existence should be declared invalid because Law No. 45/1999 is in conflict with the
2001 Papua special autonomy law, and the new province's formation was mandated
by a controversial presidential instruction in 2003, two years after the special
autonomy law took effect.
Law No. 45/1999 automatically became ineffective regardless of whether or not it was
declared ineffective, he argues.
The court verdict needs a political decision on the new province's status. If the new
province of West Irian Jaya will also enjoy special autonomy like Papua, it has to be
mandated in a special autonomy law. As a consequence it would also have the right
to share the special autonomy funds and to establish its own highest law-making
body similar to Papua's Peoples Assembly (MRP). The local assembly is assigned to
elect a governor and design development policy in the province.
With its decision, which is irreversible, the Constitutional Court has apparently tried to
provide a win-win political solution for all conflicting sides in Papua and Jakarta, but it
has not only failed to solve the prolonged issue, but will even worsen the situation
there.
John Ibo, in filing the judicial review request, noted Jakarta's reluctance to fully
implement the special autonomy law, which has been given by the People's
Consultative Assembly and through national consensus as the main framework to
seek a comprehensive solution to the Papua issue.
The Assembly agreed to give special autonomy to Papua and Aceh in 1999 amid the
strong demand for a self-determination ballot in the two provinces following the
stepping-down of former president Soeharto and the beginning of the reform era.
He said the Papuan people lost confidence again in Jakarta when president Megawati
Soekarnoputri declined to approve the draft regulation on the establishment of the
MRP and to fully disburse the special autonomy funds in the first two years of the
implementation of autonomy.
According to Law No. 21/2001, the MRP will play an important role in designing
development policy and approving the appointment of high-ranking officials in the
province. The central government later turned down the draft regulation as it was
feared it would pave the way for the province's separation from Indonesia. Papuan
people and local government officials have strongly rejected this concern as invalid,
saying the law clearly stipulates that Papua is part of Indonesian territory.
The presidential instruction issued by Megawati, was issued with strong support from
the Ministry of Home Affairs, the Indonesian Military and the BIN which were believed
to have their own interests in the planned formation of the two new provinces.
Certain high-ranking officials at the home ministry have allegedly gained financial
advantage from the establishment of new administrations in the new province and
regencies while the Indonesian Military and BIN have maintained their security
businesses with the presence of two giant mining companies in Manokwari and
Timika respectively. The formation of new provinces was also expected to help
security authorities to control separatist activities in the region.
The Constitutional Court has planted a time bomb in the region that could explode if
the majority of tribal people opposing the formation of the new province are dissatisfied
with the provincial administration's performance.
The new province's establishment, however, has won political support from migrants
from Java, Sulawesi and Maluku.
Besides, the Court decision also raises new problems for President Susilo Bambang
Yudhoyono's government which has expressed its commitment to fully implement
special autonomy and review the controversial presidential instruction as recently
promised by the President himself to the Papuans.
The author is a staff writer at The Jakarta Post. He can be reached at
ridwan@thejakartapost.com
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