The Constitutional Court, established on the basis of the decision of the People's Consultative Assembly (MPR), is currently engaged in reviewing the legal contradictions that are affecting the province of Papua. Some prominent figures of that westernmost Indonesian province have submitted what they consider to be an inconsistency resulting from the issuance of Presidential Decree No.1 in January 2003. That decree, which refers to Law No.45/1999 signed by President BJ Habibie, among other things, mandates the division of the province of Irian Jaya into three new provinces, namely West, Central and East Irian Jaya.

In the meantime, however, a new law was signed on Nov. 21, 2001 by President Megawati Soekarnoputri, namely Law No.21/2001, under the designation of the Special Autonomy Law for the Province of Papua. The conceptual thinking behind that law was initiated and developed during the administration of former president Abdurrahman "Gus Dur" Wahid, and embodies the open attitude and reformist views of Gus Dur. Of course, Papuan intellectual and societal leaders contributed their thoughts and opinions, which to a large degree were adopted by a special working committee of the House of Representatives (DPR), chaired by Sabam Sirait of the Indonesian Democratic Party of Struggle (PDI-P). The progressive character of that law is demonstrated in Chapter 4 on the establishment of a Papua People's Council. Article 76 stipulates that the creation of new provinces in Papua must have the approval of the Papua People's Council and the Provincial Legislative Council (DPRD I). However, the formation of the People's Council has been repeatedly postponed because the governmental decree required for the implementation of Law no.21/2001 is not yet forthcoming.

In the meantime, Presidential Decree No.1/2003 was issued and the province of Irian Jaya West was created. The birth of the new province of Central Irian Jaya was postponed because of the fierce protests that erupted in Mimika regency. As might have been expected, the educated sector, as well as informal traditional leaders were dismayed by the issuance of Presidential Decree No.1/2003.

The moderates among the province's societal leaders, who had been pinning their hopes on Special Autonomy Law No.21/2001 – as a judicious instrument for accommodating the aspirations of the local population while still remaining within the framework of the Republic of Indonesia – found that they were cornered. Nevertheless, they stayed within the law, and spearheaded by a member of the Papua Provincial Legislative Council, John Ibo, submitted the case to the Constitutional Court.

The point that should be emphasized in this case, however, concerns more than the legal contradictions that are currently affecting Papua, and have caused much administrative confusion in that province. More important, is the element of trust that has been lost, as was pointed out by Jayapura Bishop Leo Labalajar. In his testimony before an open session of the Constitutional Court presided over by president Jimly Asshidiqie, the bishop, who has served the Jayapura diocese for more than a decade, said that the people of Papua expected the central government to trust them to manage their own lives and culture.

He was of the opinion that there would be less conflict in Papua if the central government implemented the special autonomy law in their province, especially by the formation of the Papua People's Council.

However, Home Affairs Minister Hari Sabarno had at one time said that the formation of such a council would be tantamount to the establishment of a state within a state. He apparently conveniently ignored the clear stipulation in Chapter 4, Article 23, of the special autonomy law, which clearly states that it is the task of the Papua People's Council to maintain the Papua Province within the domain of the Republic of Indonesia. Since the resignation of Gen.(ret) Susilo Bambang Yudhoyono, Hari has been assigned as acting Coordinating Minister for Political and Security Affairs. If it is true that Hari – as has been reported – has presented the President with a draft governmental decree that would alter the structure and the authority of the Papua People's Council, then an odd situation would be created whereby a legal product of lesser weight would amend a law that had been approved by the House. We are also concerned about the possibility of Hari annulling his predecessor's decision and proceeding with the establishment of the Central Irian Jaya Province.

With the legislative election scheduled for April 5, we are of the opinion that President Megawati's government should restrain itself in introducing new decisions on Papua. It would be better to resolve all matters concerning Papua Province on the basis of Law No.21/2001, and to entrust the implementation of solutions to the newly elected House and the incoming government, after it is installed in October. In the meantime, it would be prudent for the Constitutional Court to decree an interim adjudication stipulating that the present government should maintain the present legal status quo in Papua Province, lest newly enforced decisions stir up more social disturbances in that westernmost province.