Key elements of the Law on Special Autonomy for the Province of Papua

Conference “Autonomy for Papua – Opportunity or Illusion?”, 04-05.06.2003

by Theo van den Broek

Theo_van_den_Broek

Theo van den Broek

Photo: Hans-Georg Gaul

The original idea

It might be useful to recall that the offer of autonomy had been made by the Central Government in 1998, i.e. at the very beginning of increasing protests by the Papuan community, in order to counter their demand for freedom and independence. A similar proposal had been addressed to the Aceh Province, another province in the Indonesian Republic which is looked at as a problem-area.

The offer to the Papua Province was made based on the assumption in governmental circles that problems in Papua were mainly problems originating from the failure of development policy in the region. It was inspired by the – in the Government’s view – indisputable fact that Papua is and will always be a part of the Indonesian Republic. Last but not least, the offer was based on the fact that autonomy would be granted anyway, namely as part of a nation-wide program to give more authority to regional administration.

Responding to basic aspirations

Everyone involved in the process of formulating the concept of ‘Special Autonomy’ became aware of the fact that in order for the Special Autonomy Law to have a chance of being accepted by the Papuan community, it had to respond to the aspirations of the Papuans as had been voiced over the last years. A commission consisting of Papuan intellectuals from different fields of Papuan society was constituted in order to start the drafting process of a Special Autonomy Law. The commission worked from one draft to another and ended with a Draft Law that breathed fresh hope and perspectives. Several features related to the struggle of the Papuan community over the last two years found manifestation in paragraphs of the final draft, 1 such as:

  • respect for local socio-cultural expression, including the freedom to fly the Papuan flag and sing the community’s ‘national’ anthem (Chapter II and XI);
  • an effective say in political decisions of major concern, i.e. with regard to migration and the deployment of security forces (Ch. IV);
  • representation of local traditional leadership in the administration (Ch. V);
  • obtaining a major share of the profit from the exploitation of Papua’s natural resources (Ch. X);
  • opening a political dialogue on the past (‘rectification of history’; Ch. XII, Art. 43);
  • attention to the demand that justice be done and human rights violations be halted (Ch. XII).

Contents of the Law on Special Autonomy and the Draft Law related to the mentioned main aspects

Respect for local socio-cultural expression, including the freedom to fly the Papuan flag and sing the community’s ‘national’ anthem.
The Draft Law stresses that Papuan culture is rooted in Melanesian culture and therefore differs from most of the cultural identities in Indonesia. In the introductory Consideration part of the Law on Special Autonomy for the Province of Papua, Law No. 21/2001, 2 it is underlined that the Papuan people are part of the indigenous peoples in Indonesia, while it is admitted that there is a difference of culture, language, tradition and history.

In the Consideration part of the Law an article (Art. k) has been added which reads as follows: ” [considering] … that the development of the situation and the conditions of the Irian Jaya region, especially with regard to the aspirations of its people requires the name Irian Jaya to be changed back into Papua as expressed in the Decision by the DPRD of the Province of Irian Jaya No. 7/DPRD//2000 of 16 August 2000… .”

In Chapter II attention is given to ‘local symbols’ such as the place of ‘an own flag’, ‘an own anthem’ and ‘logo’, i.e. the Mambruk bird (Crested pigeon) instead of Garuda bird. Whereas the Draft Law qualifies these elements as “expressions of identity of the Papuan people”, the Law values them as “cultural symbols” and explicitly refuses them the status of “symbols of sovereignty”.

An effective say in political decisions of major concern
The Law exempts more fields from the jurisdiction of regional authorities than the Draft does. One field that has been additionally excluded in the Law is religion (Ch. IV, Art. 4).

Quite an important means of participation is opened up by granting the opportunity to citizens of the Papuan Province to set up a political party (Ch. VII, Art. 28). This opportunity, however, should be looked at with some basic scepticism as the provision on political parties is subject to national legislation which effectively rules out regional parties. Thus, as there is still no chance to set up a regional Papuan party, the right is no different to the right every Indonesian citizen is granted.

Where the Draft Law provides for a “participating role by the Provincial Parliament and Government” in decisions about the deployment of security forces, the Law only deals with police forces and limits the role of provincial decision making bodies to the “co-ordinating function of the Governor” (Ch. XIII, Art. 48).

With regard to population policies it is demanded in the Draft that transmigration programs be stopped completely. In the Law, however, transmigration is still agreed on, and be it now with the approval of the Governor (Ch. XVIII, Art. 61).

In relation with the question of establishing new provinces out of the Province of Papua, the Law stresses that this restructuring can only be done with the approval of the Papuan Provincial Parliament (DPRP) as well as of the Papua People’s Assembly MRP (Ch. XXIV, Art. 76).

Both documents furthermore include provisions with regard to the need for social control. But whereas the Draft deals with this only in very general terms, the Law adds a special Article (Ch. XXI, Art. 68) conferring upon the Central Government the right to supervise any decision, regulation etc. arrived at on the provincial level: “… The [Central] Government has the authority to conduct repressive supervision over the Perdasus’, 3 Perdasis 4 and Decisions of the Governor.” Especially the word “repressive supervision” here suggests far-reaching authority for the Central Government. In the Elucidation to the article this is clarified as follows:

“The Government of the Province of Papua conveys the Perdasus, Perdasi and Decisions of the Governor at the latest 1 (one) month after they have been determined. In the framework of conducting repressive supervision, the [Central] Government can invalidate the Perdasus, Perdasi and Decisions of the Governor if they are contradictory to higher ranking legislation or to the general interest of the people of Papua. The Decision of the mentioned invalidation shall be reported to the Government of the Province of Papua, including the reasons for it. In the case that the Government of the Province can not accept the mentioned decision of invalidation, the Government of the Province can file an objection to the Supreme Court. If the Supreme Court confirms the mentioned suit, then the Perdasus, Perdasi and Decision of the Governor remains in effect. As long as there is no Supreme Court decision concerning the mentioned suit, the respective Perdasus, Perdasi and Decision of the Governor is postponed. If with in the period of 3 (three) months as of the date of reception of the mentioned suit by the Supreme Court no decision has been obtained, then the respective Perdasus, Perdasi and Decision of the Governor will be put into effect again.”

Representation of local traditional leadership in the administration
A rather new element in the administrative set-up of the province is the possibility to form the Papuan People’s Assembly (Majelis Rakyat Papua, MRP). In the draft document as well as in the Law the position of the MRP is not subsumed under the chapters dealing with the legislative or executive part of the administration, but has been given its own subchapter (Ch. V, Art. 19–25). While the Draft positions the MRP – whose members shall consist of traditional leaders, representatives of various indigenous interest groups and women – as a part of the legislative body, the Law names as the legislative body the DPRP (Papuan Provincial Parliament). In addition, it grants the MPR some functions in the legislative process (Art. 20). With regard to this allocation of position, a lot of changes have been made as compared to the original draft. The concept of a Parliament consisting of two ‘Houses’, which had been launched in the Draft, is no longer found in the Law.

In both documents, in the Draft as well as in the Law, a role for an Adat 5 Court is recognised (Ch. XIV, Art. 50, 51). The functioning of the Adat Court is sanctioned, but its rulings can be overturned by a first instance State Court of the relevant judicature in the event that one of the conflicting parties opts for a revision process.

Obtaining a major share of the profit from the exploitation of Papua’s natural resources
In the Draft Law the revenues from natural resources were just claimed for the Province of Papua without specification. The Law on the other hand stipulates a distribution of revenues in great detail: Thus, Papua shall receive 80% of revenues from forestry, fisheries, and general mining (including Freeport mining), 70% of revenues from oil and gas exploration. After 25 years the revenues from oil- and gas exploitation will be lowered to 50% (Ch. IX, Art. 34). The mentioned revenues have to be spent partly on education (minimum 30%), and partly on health care (minimum 15%; Ch. IX, Art. 36).

In the Draft it is demanded that the processing of raw materials should completely be done in Papua. In the Law this claim has been weakened by making processing dependent on principles of a sound, efficient and competitive economy (Ch. X, Art. 39).

Opening a political dialogue on the past (‘rectification of history’)
An article in the Draft which relates to the work of the Commission for Rectification of History, reads:

“If the results of the (Commission for) rectification of history show that the process of integration of Papua into the Unitary State of the Indonesian Republic in the past does not accord with International Law in relation to the people’s right of self-determination, the Central Government and the Papua people, via its Parliament, will take steps towards a solution.”

This is completely omitted in the Law. Instead, the Law stipulates that a Truth and Reconciliation Commission is to be set up by the Central Government after consultation with the Governor of Papua (Ch. XII, 46). Note that in the Draft the ‘Commission for rectification of Papua’s history’ was suggested to be completely under the authority of the Government of the Papua Province.

Apart from the fact that the Commission is under a different authority, the Law stipulates that the Commission’s main task is “… a) to clarify the history of Papua in order to stabilise the unity and integrity of the nation within the Unitary State of the Republic of Indonesia; and b) to formulate and determine the steps for reconciliation.”

In the Draft Law the task of the ‘Commission for rectification of Papua’s history’ is not explicitly formulated, but the need for such a commission is put into the context of “… reaching final and comprehensive solutions related to the difference of opinion on the history of integration of Papua into the Republic of Indonesia”.

Attention to the demand that justice be done and human rights violations be halted
The Law recognises the traditional rights, such as those related to land, and any use of the land has to be based on mutual agreement (XI, Art. 43). It stipulates as well that adat-land (traditionally owned land) which has already been handed over to other parties while respecting the regulations of the Law should not be disputed anymore. Herewith it counters the more radical tune of the Draft, which claims recognition of almost absolute traditional rights on land and water with all its riches.

Both documents, the Draft as well as the Law, urge the formation of a special Commission for Human Rights (XII, Art. 45). The difference is found in the official status they are willing to provide: In the Draft a purely Papua-based and organised Commission is demanded, while in the Law a branch under the official National Commission for Human Rights is provided for. In the Law the Commission is stipulated to be set up by the Central Government, and not by the Papua Government as was suggested in the Draft.

Summarising conclusions

With regard to the content of the Special Autonomy Law we might conclude the following:

First of all it becomes clear that in the document the basic assumption is that Papua is and will always be an integral part of the Indonesian Republic. The Law leaves no doubt as to that matter.

Secondly, in line with this basic assumption, the demand for open research into the history of Papua is virtually made impossible; the envisaged Truth and Reconciliation Commission does not serve the need for an open-ended political dialogue properly. It might even be concluded that setting up a Truth and Reconciliation Commission as viewed by the Government is not really meant to open up the truth, but mainly intended to strengthen national unity. Herewith the Truth and Reconciliation Commission loses its original principal purpose.

Thirdly, a similar remark relates to another important element: the Human Rights Commission. Also this Commission is mainly put under the control of the Central Government.

Fourth, the real position of the MRP is kept very ambiguous, and the impression is given that it will end up being more some kind of window-dressing rather than of a decision-making body.

Fifth, the display of local symbols is restricted to expressing cultural identity only. This will trigger fierce discussion in the future, and opens the possibility for the security forces to act whenever they judge that the symbols are used as a – prohibited – display of sovereignty. The restriction to ‘expression of cultural identity’ effectively makes a spontaneous display of local symbols a very risky matter.

Sixth to implement the Special Autonomy Law a great deal of work must be done to translate the principles into concrete regulations (regional laws). Within this process a lot can change or move away from what has originally been opted for. The need for an extensive as well as intensive social control is very real to prevent a situation where in the end the regulations just serve certain interest-groups.

Although not responding to all the aspirations of the Papuan people, the Special Autonomy Law still leaves ample room for a new role for the Papuan people in future socio-political decisions, on condition that the new Law is implemented properly. It might help to substantially improve matters such as education, health care and the local economy; it might also help to realise a better and more visible respect for local traditions and for the daily display of respect for the dignity of the Papuan people. It might be a step to improve respect for human rights and might lead to perpetrators being taken to court. But as to the need for justice to be done it should be noted that the judicial bodies as agreed on in the Law leave a lot of doubts as to their effectiveness.

So, the least that can be said is the fact that the Special Autonomy Law, if implemented correctly, will create new room for ‘freedom’ with regard to the well-being of the people, (i.e. concerning economy, education, health care and local needs) as well as with regard to human rights (i.e. participation, respect for people’s identity, traditional rights, local aspirations).

However, the Special Autonomy Law offers little room for an open-ended political dialogue, and therefore fails to address the call for political freedom as one of the three main components in the struggle for liberation which is basically related to [1] social-economic, [2] socio-cultural as well as [3] political aspects.

1 The references are to the Draft Law on Special Autonomy for the Province of Papua (Rancangan Undang-Undang Republik Indonesia tentang Otonomi Khusus bagi Propinsi Papua), the conceptual document which has been handed to the Indonesian Parliament (DPR) to be considered and decided on. It is henceforth referred to simply as Draft Law.
2 Cf. Art. e of Law No. 21/2001 on Special Autonomy for the Province of Papua, which is henceforth simply referred to as ‘Law’.
3 Perdasus is the Indonesian Acronym for Special Regional Regulation which is defined in Law No. 21/2001 as a Regional Regulation of the Province of Papua in the framework of implementation of certain articles of Law No. 21/2001.
4 Perdasi is the Indonesian Acronym for Regional Regulation of the Province which is defined in Law No. 21/2001 as a Regional Regulation of the Province of Papua in the framework of implementation of the authority as regulated in statutory regulations.
5 Adat means customary law.

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