Petitioners Gunawan A. Tauda and Abdul Kadir Bubu at the judicial review hearing of the Law on the Establishment of North Maluku Province, Monday (11/25/2021). by Humas MK/Bayu.
Monday, October 25, 2021 | 19:59 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held a preliminary judicial review hearing for the Law on the Establishment of North Maluku Province on Monday, October 25, 2021 virtually from the plenary courtroom. The case No. 54/PUU-XIX/2021 was filed by Gunawan A. Tauda and Abdul Kadir Bubu.
The Petitioners, who appeared before the Court virtually from Ternate, question Sofifi as the capital of North Maluku Province in Article 9 paragraph (1) of Law No. 46 of 1999 on the Establishment of North Maluku Province, Buru Regency, and West Southeast Maluku Regency as amended by Law No. 6 of 2000 on the Amendment to Law No. 46 of 1999.
Article 9 paragraph (1) of Law No. 46 of 1999 in conjunction with Law No. 6 of 2000 reads, “The capital of North Maluku Province is located in Sofifi.”
The Petitioners asserted their legal standing as residents of North Maluku Province who have concern for Law No. 46 of 1999 in conjunction with Law No. 6 of 2000 for the interest of the public and local governments. The Petitioners feel their constitutional rights have been violated or may potentially be violated by the enactment of Article 9 paragraph (1) of the norm. The Petitioners suffered loss of the right to build the community, nation, and state in North Maluku Province, the right to fair legal certainty and equality before the law, because since it is enacted on October 4, 1999 until today, the government has failed to realize the establishment of the New Autonomous Region (DOB) of Sofifi City as the capital of North Maluku Province.
“The government’s incompetence has directly impacted the acceleration of regional development in order to catch up with other provinces in the archipelago due to the absence of a public legal entity for Sofifi City’s local government unit. As [residents] of the region, we feel that we cannot optimally develop the region according to our areas of expertise. We feel that our constitutional rights have been significantly impaired because as local residents of North Maluku Province, we do not get fair legal certainty from the government in the form of the establishment of a provincial capital, and do not get equal treatment before the law, in this case the Regional Government Law, considering other provinces in Indonesia do not have the same legal issue,” said Gunawan A. Tauda.
The Petitioners said North Maluku Province is the only region in Indonesia that does not have a capital city, or whose capital is a kelurahan (village). The Petitioners feel that their constitutional rights have been significantly impaired because there has been public unrest over the absence of said capital. This is a major regional problem that attracted the attention of the North Maluku community.
They asserted that Sofifi Village is part of the administrative area of North Oba Subdistrict, Tidore Islands City. The transfer of government activities since the establishment of North Maluku Province with Ternate as the transitional capital to Sofifi as the definitive capital can only be implemented in stages until August 4, 2010, although the bill (RUU) regarding the establishment of the new autonomous city of Sofifi City has not yet been promulgated. This transfer is a great hope for the local government and the people of North Maluku, who have just enjoyed proliferation from regencies and cities within Maluku Province to become a new autonomous regional government unit for North Maluku Province. The transfer apparently ignores one of the basic factors: the absence of a separate legal community unit in the form of Sofifi City.
Whereas explicitly, Article 20 of Law No. 46 of 1999 in conjunction with Law No. 6 of 2000 stipulates, “(1) While waiting for the preparation of adequate infrastructure and facilities for the capital city of North Maluku Province as referred to in Article 9 paragraph (1), the temporary capital is set in Ternate; (2) Within a period of five years at the latest, the definitive capital city of North Maluku Province shall be operating.”
The Petitioners believe the word ‘facilities’ in the phrase ‘facilities and infrastructure’ must be interpreted to include the formation of a public legal entity of Sofifi City, while the phrase ‘shall be operating’ puts a deadline. This means that within five years after the Law No. 46 of 1999 was promulgated on October 4, 2004, the Government and the House of Representatives (DPR) were bound to form the Law on the New Autonomous Region of Sofifi City. Sadly, in the 22 years since the province was formed, the Bill for the Establishment of the New Autonomous Region of Sofifi City has not been enacted.
The Petitioners believe the Regional Proliferation Law of North Maluku is not in line with the North Maluku Law because the former must have stipulated Sofia City as the capital of North Maluku Province. The elucidation to Article 9 paragraph (1) of the North Maluku Law reads, “What is referred to as Sofifi as the capital of North Maluku Province in this paragraph means part of the area in Oba Subdistrict, Central Halmahera Regency.”
The Petitioners said the creation of the Law on the Regional Proliferation Law of North Maluku has is an indirect/implicit consequence that the drafters of the law determined Tidore Islands City with Oba Subdistrict as the provincial capital, or at least the administrative center of North Maluku Province. The relocation of the provincial capital to another area was ineffective because most of the provincial government facilities and infrastructure had been built in North Oba Subdistrict, Tidore Islands City. Therefore, according to the Petitioners, it is quite reasonable to state that Tidore Islands City is de facto the administrative center of North Maluku Province.
The Petitioners supported their argument with the final academic study report of the feasibility of the establishment of Sofifi City, North Maluku Province entitled “Completing the Consensus of Building Sofifi” by the Department of Politics and Government (DPP) of the Faculty of Social and Political Sciences (FISIP) of Gadjah Mada University. It concluded that “the formation of Sofifi City is needed but currently does not meet the existing requirements, both political and regulatory.”
Based on the considerations of the study, they asserted, the formation of Sofifi new autonomous region was very forced. Thus, there is sufficient reason, they said, to state that currently Sofifi is unfit, and creates legal uncertainty or potentially cause legal uncertainty if positioned as the capital of North Maluku Province.
In the petitum, the Petitioners requested the Court declare Article 9 paragraph (1) of Law No. 46 of 1999 in conjunction with Law No. 6 of 2000 unconstitutional and not legally binding, or unconstitutional and not legally binding insofar as not interpreted as “The capital of North Maluku Province is located in Tidore Islands City.”
Justices’ Advice
Constitutional Justice Enny Nurbaningsih advised the Petitioners to elaborate the articles of the touchstone. She also asked them to elaborate the issues of new autonomous region of Sofifi, for example, if the DPRD (Regional Legislative Council) or the governor questioned the establishment of the provincial capital.
“Because there are issues at the province level, can the Petitioners involve the DPRD and the governor in the petition?” she asked.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioners to study the Constitutional Court Regulation (PMK) No. 2 of 2021 on the procedure for judicial review, which also serves as guidelines to draft the petition, including the legal standing, posita, and petitum.
Next, Constitutional Justice Wahiduddin Adams (panel chair) advised the Petitioners to study past decisions by the Court on the establishment of DOBs in several regions. He also echoed Justice Enny’s advice to involve the DPRD and governor as the regional administrators as it is related to the Petitioners’ legal standing.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Andhini S.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/26/2021 09:58 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Monday, October 25, 2021 | 19:59 WIB 307