Court ruling perpetuates conflict in Papua

Court ruling perpetuates conflict in Papua

Ridwan Max Sijabat, The Jakarta Post

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. He can be
reached at ridwan@thejakartapost.com