Attorney Yan Christian Warinussy after the judicial review hearing of Law No. 12 of 1969 on the Establishment of West Irian Autonomous Province and Autonomous Districts in West Irian Province, Tuesday (14/5) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court held the second judicial review hearing of Law No. 12 of 1969 on the Establishment of West Irian Autonomous Province and Autonomous Districts in West Irian Province (West Irian Establishment Law) on Tuesday (14/5/2019) in the Panel Courtroom of the Constitutional Court. The case No. 35/PUU-XVII/2019 was filed by 14 Petitioners, who are representatives of the Papua Customary Council, individual citizens, the Papua Women Solidarity, and the Kemah Injili (Kingmi) Church of Papua. In the session chaired by Constitutional Justice Suhartoyo accompanied by Constitutional Justices Arief Hidayat and Saldi Isra, the PEtitioners stated that the phrase "Considering" and "General Explanation to Paragraphs 7 and 8" of the West Irian Establishment Law were unconstitutional.

Muhammad Busyol Fuad, one of the attorneys, delivered revision on the petition on the legal standing of the Petitioners. Some Court decisions specify that those who have legal standing in the judicial review on region formation are the regional heads. However, in this case, Busyol explained, after analysis, study, and review of Constitutional Court Decisions No. 63/PUU-XI/2013 on the Judicial Review of the Establishment of Central Java Province (related to the proliferation of Surakarta from Central Java Province) and No. 34/PUUXV/2017 on the Judicial Review of Law No. 23 of 2014 on Regional Government (the establishment of Madura Province), "From the results of the study, juxtaposed with the two Constitutional Court decisions on the consideration section of Law Number 12 of 1969 conducted by the Petitioners, [those decisions] are not at all related to regional proliferation and are very different from the judicial review petitions on regional proliferation that have been decided by the Constitutional Court," Busyol explained.

His clients’ petition, Busyol added, only questioned the constitutionality of the considering part of Law Number 12 of 1969, which was based on an undemocratic Act of Free Choice that violated human rights, especially of indigenous Papuans, both when the Act was implemented and today. Thus, Petitioners I-XII as individual petitioners and Petitioners XIII and XIV as legal entities have legal standing because they have suffered constitutional losses due to the implementation of the Act, which is the basis for the establishment of Law Number 12 of 1969.

Reviewing Constitutionality

Another attorney, Ratu Durotua Nafisah, said that her clients did not requested that the Court review the Act of Free Choice (Pepera) against the New York Agreement, but to review the constitutionality of part of Law Number 12 of 1969, whose the basis referred to Pepera, against the 1945 Constitution, as the Law violated the Petitioners\' constitutional rights.

In addition, Ratu added, Law No. 12 of 1969 could be directly addressed to everyone, designed, and approved by the House and approved by the President. Therefore, the Law can be reviewed by the Constitutional Court. Referring to the Constitutional Court Decision No. 33/PUU-IX/2011 on the Judicial Review of the Ratification of the ASEAN Charter, Ratu added, the Court has the authority to review the constitutionality of Article 1 number 5 and Article 2 paragraph (2) letter n of the ASEAN Charter, which is an attachment inseparable from Law No. 38 of 2008.

"The decision illustrates, as long as what is formally requested is the review of the constitutionality of laws against the 1945 Constitution, the substance of the law that refers to a treaty does not necessarily prevent the Court to review it," Ratu explained.

According to the Petitioners, the implementation and decision of the Papuan People\'s Act of Free Choice (Pepera), which was only followed by a number of people who joined the Pepera Consultative Council, was actually not in line with the 1945 Constitution, especially Article 28E paragraph (2), Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution. In addition, Yan added, the West Irian Establishment Law resulted in the inequality of ratification contained in the New York Agreement agreed on August 15, 1962 between the Government of Indonesia and the Kingdom of the Netherlands. Thus, the history of the integration of Papua into the Unitary State of the Republic of Indonesia (NKRI) has become the main source of conflict in Papua.

The basis for the implementation of Pepera was the New York Agreement, whose Article XVIII paragraph (d) states that all adults, both male and female, can participate in the act of self-determination to be carried out in accordance with international practice. This, he explained, is different from prior to the Pepera, where there had never been consultation and involvement of official representatives of the Papuan community in the discussion and establishment of the New York Agreement and only consultations with bodies that have long existed in Papua. Therefore, they did not understand the true aspirations of the people. As for the implementation of the Pepera, the Indonesian Government did not use the one man one vote system, but utilized the Pepera Consultative Council. Through the petitum, the Petitioners requested that the Court declare the General Explanation Paragraphs 7 to 8 to the Papua Autonomy Law contrary to Article 28I paragraph (1) of the 1945 Constitution. (Sri Pujianti/LA/Yuniar Widiastuti)