Muninggar Sri Saraswati, Jakarta – The Constitutional Court was established in 2003 to provide legal certainty in the face of conflicting laws, but its ruling on Papua's division on Thursday is likely to create more legal ambiguity in the country's easternmost province.
The court ruled on Thursday that Law No. 45/1999 on the establishment of Central and West Irian Jaya provinces violated the Constitution, but at the same time it recognized the existence of West Papua province.
"The province is factually effective as proven by, among other things, the existence of the West Irian Jaya administration as well as the West Irian Jaya legislature council and the election of members of the Regional Representatives Council (DPD)," a panel of nine judges said.
The Constitutional Court, however, did not recognize Central Irian Jaya because it has neither a legislature, regional administration or DPD members.
One judge, Maruarar Siahaan, said the annulment of Law No. 45/1999 would have to be followed by the annulment of all legal and factual consequences of the law, including the establishment of West Irian Jaya province.
Law No. 45/1999 also deals with the establishment of North Maluku province, as well as the regencies of Mimika, Paniai and Puncak Jaya, and Sorong municipality, all in Papua.
Several Papuan figures, including Papua legislature chairman Jhon Ibo, filed a judicial review seeking to annul the central government's decision to split Papua into three provinces. The government took the decision without consulting with the legislature, as required in Papua's special autonomy law.
Under the special autonomy law, any decision to partition the province must first be approved by the yet-to-be-established Papuan People's Council.
The Constitutional Court's decision immediately drew strong criticism from senior constitutional law expert Sri Soemantri, who called the ruling "completely weird".
"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?" Sri Soemantri told The Jakarta Post.
He suggested the decision was politically motivated and warned that the ruling could create problems for any future divisions of Papua.
Bambang Widjajanto, the lawyer for Jhon Ibo and the other Papuan figures who filed the judicial review, said the court's ruling "creates more trouble for Papuans".
Constitutional Court president Jimly Asshiddiqie said the verdict was effective as of Thursday. West Papua province was established with the issuance of Presidential Decree No. 1/2003 by former president Megawati Soekarnoputri.
Jimly also said the government must honor Law No. 21/2001 on special autonomy for Papua should it wish to further partition Papua.
Most Papuans, particularly university students and non-governmental organization activists, have bitterly opposed the partition, which they see as an effort by Jakarta to divide and conquer Papua, where a low-level secessionist movement has been fighting for independence since the 1960s.
Three people were killed and dozens others injured in clashes between supporters and opponents of the new provinces in 2003.
Both the National Intelligence Agency and the Indonesian Military have thrown their weight behind the partition, which they believe will facilitate operations against the secessionist movement there.
Papua, with a population of 2.4 million, is three-and-a-half times bigger than Java, which is divided into four provinces, plus Jakarta.