Ridwan Max Sijabat – 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.]