Information und Analyse

Constitutional Court’s ruling on the partition of Papua

24 November 2004

von Petra Stockmann

pemekaranPapua

Map of the planned division of Papua into three provinces

On November 11th, 2004, the Constitutional Court eventually announced its ruling concerning the application for judicial review of Law No. 45/1999 on the Establishment of the Province Central Irian Jaya, the Province West Irian Jaya, the Regency Paniai, the Regency Mimika, the Regency Puncak Jaya and the Municipality Sorong. The Court declared Law 45/1999 unconstitutional and thus invalid as of the date of the verdict. However, in its legal considerations the Court states it is of the opinion that the Province of West Irian Jaya, which had been established based on Law 45/1999 and the corresponding implementing legislation, is valid, unless the Court decides otherwise. The verdict has been characterised as ambiguous and provoked mixed reactions.

Background

Towards the end of their respective terms, the Habibie administration and the national Parliament (DPR) enacted Law 45/1999 which amongst others determined the division of Irian Jaya into the three provinces, or more precisely: the establishment of the Province of Central Irian Jaya and the Province of West Irian Jaya. A storm of protest arose in Papua; and the Provincial Parliament recommended to the Central Government that the Law be repealed. This was shortly before on October 20th, 1999, Abdurrahman Wahid was elected as new President by the new People’s Consultative Assembly (MPR). During the same MPR session, the Assembly also issued the Broad Outlines of State Policy 1999-2004 as the binding policy guidelines for the new President. Therein, the MPR determined that Special Autonomy should be provided for the Province of Irian Jaya and cases of human rights violations resolved by judicial means. Shortly after coming into office, the new Central Government stopped the implementation of the Law 45/1999 on the division of Papua. As the International Crisis Group put it: “…by mid-2000, Law 45 was in legal limbo, rejected but not repealed, with the creation of new provinces on hold, but the creation of the four new districts well on their way to implementation.”

In its next Annual Session, in August 2000, the MPR, at that time still the highest state institution, recommended that at the latest on May 1st, 2001, Special Autonomy legislation for Aceh and Papua should be released. Apart from the Central Government, also leading figures in Papua started work on draft legislation. Endowed with unanimous support by the Provincial Legislature, the Papuan Draft Special Autonomy Law was eventually submitted to Abdurrahman Wahid. Surprisingly, the national Parliament, the DPR, then opted for the Draft from Papua as the basis for its deliberation. Finally, in November 2001, the Law on Special Autonomy for Papua, as the Province was now officially named, was enacted. The Law carries the signature of Megawati who had in the meantime succeeded Abdurrahman Wahid in the Presidential chair.

Although considerably watered down as compared to the Papuan Draft, Law No. 21/2001 still contains a number of provisions to the benefit of the Papuan people. But what should become one major source of controversy was the fact that no mention at all of Law 45/1999 was made in the Special Autonomy Law. That meant that as concerns the status of the Province, two laws with contradictory provisions were in place: Law 45/1999 – although not being implemented – still determining the establishment of the provinces West and Central Irian Jaya, i.e. a division of Papua into three provinces; and the Law on Special Autonomy for Papua, which in its Article 76 determines: “The division (lit.: the making of more provinces out) of the Province of Papua shall be carried out with the approval of the Papua People’s Assembly and the People’s Representative Council Papua (Provincial Parliament) after having seriously taken into consideration social-cultural unity, the readiness of the human resources and the economic capacity and the development in the future.” – The Papua People’s Assembly (Majelis Rakyat Papua, MRP) is a new institution provided for in the Special Autonomy Law with considerable political authority, to be staffed with representatives from adat (customary law) communities, religious communities and women. Up until the present day, the Central Government has delayed the establishment of the Papua People’s Assembly.

In January 2003, President Megawati gave developments a new twist when she issued a Presidential Instruction on the Acceleration of the Implementation of Law No. 45/1999. With this Instruction, implementing the division of Papua was back on the agenda. Protest against the move was voiced from different sides, with also prominent legal experts underlining that the Presidential Instruction was against the Special Autonomy Law.

The Central Government pressed ahead with the establishment of the two new provinces nevertheless. The Province of West Irian Jaya was officially established in February 2003, with its acting Governor Brig. Gen. (ret.) Abraham Atururi officially appointed to the very position in November of the same year. As concerns the Province of Central Irian Jaya, after violent clashes which left several people dead, the Central Government announced in August 2003, that it put on hold plans to go ahead with the establishment.

Challenging partition policies in Court

The Central Government’s partition policies were challenged in Court: Firstly, in June 2004, a ruling was issued by the Jakarta State Administrative Court obliging the Government to withdraw the appointment of Atururi as Governor. Secondly, in November 2003, an appeal for judicial review of Law 45/1999 was filed to the Constitutional Court, with John Ibo, Head of the Papuan Provincial Parliament, the official plaintiff. Although the case had initially been accorded high priority, a year went by before the verdict was spoken.

In its legal considerations the Court argues the following: Concerning the reasoning of the plaintiff that lex superior derogat legi inferiori (the higher ranking legal source overrides the lower ranking one), the Court is of the opinion that this principles does not apply for the case at hand: Law 45/1999 is not opposed to the higher legal basis at that time, the 1945 Constitution prior to its amendment, and thus all matters arising as a result from the Law are also valid. This is explicated more clearly towards the end of the legal consideration, as we shall see.

Secondly, also the argument is rejected that due to the principle of lex specialis derogat legi generali (the special law overrides the general one) and lex posterior derogat legi priori (the newer law overrides the older one) parts of Law 45/1999 are annulled by the enactment of the Special Autonomy Law. As reason the Court mentions that the matters dealt with in Law 45/1999 and the Special Autonomy Law are different: Whereas Law 45/1999 deals with the establishment of provinces and regencies, Law 21/2001 is on matters pertaining to Special Autonomy for Papua.

Furthermore, Law 21/2001 displays traits of inconsistency and ambivalence in the sense that in its General Elucidation it acknowledges the existence of several regencies that were established on the basis of Law 45/1999, but does not touch at all on the existence of the two provinces the establishment of which was also stipulated in Law 45/1999.

The Court also refers to the Transitional Provisions of Law 21/2001 where it is determined that all regulations remain valid, as long as they are not regulated in the Special Autonomy Law. For the question of whether or not this leaves Law 45/1999 effective as a whole or in parts, different interpretations exist. The Court acknowledges that both the plaintiff and the Central Government have well-founded arguments for their respective position.

Crucial statements are presented towards the end of the legal consideration. There, the Court notes that conditions laid down in the Special Autonomy Law concerning any partition of the Province (cf. the above quoted Article 76) apply after the enactment of the Law; they do not apply for the establishment of the Provinces of Central and West Irian Jaya which was – normatively – done based on Law 45/1999.

The Court continues its line of reasoning by stating that as a matter of fact the Province West Irian Jaya is already effective as, amongst others, proven by the existence of a Provincial Government, a Provincial Parliament with MPs elected in the 2004 elections and elected Members representing West Irian Jaya in the newly established Regional Representatives’ Council (DPD). On the other hand, the establishment of the Province of Central Irian Jaya has not yet been realised. Given this, the Court is of the opinion that “… the existence of provinces and regencies/municipalities that have come into existence based on Law 45/1999 is valid unless the Court declares otherwise.”

The explicit ruling comprises three points: The Court declares that the application of the plaintiff is granted; that, with the enactment of Law 21/2001, the validity of Law 45/1999 is contrary to the (amended) Constitution; and that Law 45/1999 has no longer any binding legal validity as of the issuance of the verdict.

A concurring opinion was voiced by Judge Maruarar Siahaan who agrees with the verdict as such but holds a different opinion as regards the legal considerations on the result of the Court ruling: Judge Siahaan reasons that also the legal and factual results from Law 45/1999 need to be annulled, meaning that the existence of the Province of West Irian Jaya be declared null and void and all corresponding institutions be dissolved.

Reactions

Plaintiff John Ibo accepted the decision of the Court seemingly without much ado: “We filed the case due to the mandate we received from our people. I’m sure they can accept it,” he is quoted as saying. Unsurprisingly, positive voices came especially from people directly benefiting from the verdict, such as for example the interim Deputy Head of the new Province’s Parliament, Damianus Itjie. Welcoming the ruling, Itje claimed that it was in line with the wishes of the people.

“Completely weird”, was, however, the comment by constitutional law expert Sri Soemantri vis-á-vis the Jakarta Post. “What then is the legal basis of West Irian Jaya province? If the court declares Law No. 45/1999 violates the Constitution, how can it approve the establishment of a province that has no legal basis”, Soemantri wondered. And the head of Papua’s Indonesian Christian Church, Herman Saud, is reported as saying that the ruling was based on political considerations rather than legal arguments: “The ruling was made to save the central government’s honor as it has already set up West Irian Jaya province. It’s no secret that the government always intervenes in the legal process.”

As regards Saud’s last comment it must be noted that whereas the Indonesian judiciary as a whole has been notorious for its lack of independence, the Constitutional Court has during its short period of existence issued a number of remarkable rulings which can be evaluated as first proof of its Constitutionally stipulated independence. Neither the ruling concerning the Court’s own jurisdiction nor the ruling concerning the passive voting rights of former members of the Indonesian Communist Party were to the liking of the Government, nor was the one that annulled a law making the anti-terrorism legislation retroactively applicable to the Bali bombings.

In my view, two structural problems show in this particular case: Firstly, like other Constitutional Courts, e.g. the German one, also the Indonesian counterpart has to face the fact that it will often have to deal with problems that are of a political and not – or not purely – of a legal nature. Secondly, the actual problem in legislation in this case was that two valid laws contained mutually contradictory provisions. In my understanding, the prime question in the Papua case was not so much whether or not Law 45/1999 violated the Constitution, but that it was left in place and thus in contradiction with new legal provisions in the Special Autonomy Law. But under the Indonesian Constitution, no institution is authorised to deal with contradictory legislation: Whereas the Constitutional Court is vested with the authority to conduct judicial review of laws against the Constitution, the Supreme Court is in charge of ruling on whether or not legislation ranking below the status of laws in the hierarchy of legal sources is in accordance with laws. In my view, the fact that the Papuan case had to be constructed in a way as to fit the conditions for judicial review before the Constitutional Court contributed to the difficulties of the Judges in deciding the case. That any question on the legal status of ‘trouble spots’ like Papua is a politically extremely contentious issue, goes without saying. But as mentioned, the Court has issued unpopular rulings on other, possibly no less sensitive issues before.

In my lay understanding of the verdict, I would like to draw attention again to one passage of the legal reasoning that has already been mentioned above, namely the passage where the Court states its opinion that “… the existence of provinces and regencies/municipalities that have come into existence based on Law 45/1999 is valid unless the Court declares otherwise.” Can this possibly be interpreted as an indication for a way out of the difficult ruling?

As has become clear from reactions of legal experts cited above, with the annulment of Law 45/1999, the Province of West Irian Jaya and the established regencies lack the necessary legal basis. If Parliament and Government pursue their policies of partition in disregard of all the opposition, they need to put in place a new law as a legal basis for the mentioned province and regencies. This Law could then in turn be challenged before the Constitutional Court. This time, however, the only legal basis for the Court’s judicial review would be the amended Constitution which in its Article 18 B (1) determines: “The State recognises and respects the units of regional government that are special or unique in nature as regulated in a law.”

While the Constitutional Court is the prime stage on which the legal struggle over contested partition policies is carried out, the administrative judicature is still another. Here, it remains to be seen what consequences the above mentioned cancellation of Atururi’s appointment as Governor will bring about.

All legal reasoning aside, the most promising way towards a resolution of the conflict in troubled Papua would probably be a farsighted political initiative on the part of the new President, supported by a Parliament that tries to come up with and/or back creative solutions for one of the country’s pressing problems.

Relevant documents and sources:

Selected relevant provisions from the mentioned Broad Outlines of State Policy (GBHN) 1999-2004, the Law No. 21/2001 on Special Autonomy for the Province of Papua, the Law No. 45/1999 on the on the Establishment of the Province Central Irian Jaya, the Province West Irian Jaya, the Regency Paniai, the Regency Mimika, the Regency Puncak Jaya and the Municipality Sorong, and the Presidential Instruction No. 1/2003 on the Acceleration of the Implementation of Law No. 45/1999 can be found in Indonesian and English translation at:
http://www.watchindonesia.org/AfP2003docum.htm

Constitutional Court verdict: Putusan Perkara Nomor. 018/PUU-I/2003, available in the original version (in two parts) on the homepage of the Constitutional Court at: http://www.mahkamahkonstitusi.go.id

International Crisis Group (ICG): Dividing Papua. How not to do it. Indonesia Briefing, 9.4.2003, available online http://www.icg.org/library/documents/report_archive/A400941_09042003.pdf

Autonomy for Papua – Opportunity or Illusion? Papers presented at the conference “Autonomy for Papua – Opportunity or Illusion?”, June 4th and 5th 2003, Berlin, Germany, published by the Friedrich Ebert Foundation, the West Papua Network and Watch Indonesia!, available at: http://www.watchindonesia.org/AfP2003contents.htm

Quotations and additional information from:
The Jakarta Post (online version), 15/11/03, 16/06/04, 12/11/04; Tempo Interaktif 14/06/04

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