Constitutional justices entering the courtroom to review petition No. 54/PUU-XIX/2021 on Law No. 46 of 1999 on the Establishment of North Maluku Province, Buru Regency, and West Southeast Maluku Regency, Monday (11/8/2021). Photo by Humas MK/Ilham W.M.

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Tuesday, November 9, 2021 | 09:58 WIB

JAKARTA, Public Relations—The petition revision hearing of the judicial review 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 took place at the Constitutional Court (MK) on Monday, November 8, 2021. The case No. 54/PUU-XIX/2021 was filed by Gunawan A. Tauda and Abdul Kadir Bubu. The virtual hearing was presided over by a justice panel—Constitutional Justices Wahiduddin Adams (chair), Saldi Isra, and Enny Nurbaningsih.

“Because the hearing [is] broadcasted on social media, and in order to prevent disinformation among the North Maluku public, we appeal so that the justice panel allow us to read nearly all of the revisions to the petition because they concern almost the entire petition,” Tauda said.

In the revised petition, Tauda emphasized that he and Bubu are residents of North Maluku Province, as proven by resident identity card. They are also lecturers of the Law Faculty of Khairun University who are concerned with the North Maluku Establishment Law. They believe their constitutional rights have been or could potentially be violated by Article 9 paragraph (1) of the a quo law.

He explained that the North Maluku Establishment Law was passed into law on October 4, 1999 but the government could not resolve the issue over the legal certainty of the North Maluku Province capital, which is mandated by Article 9 paragraph (1) and Article 20 paragraph (2) of the a quo law.

Article 9 paragraph (1) of the North Maluku Establishment Law reads, “The capital of North Maluku Province is located in Sofifi.” Its elucidation 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.” Meanwhile, Article 20 paragraph (2) reads, “Within a period of five years at the latest, the definitive capital city of North Maluku Province shall be operating.”

The government’s incompetence, Tauda said, has led to legal uncertainty in the regulation on the capital of North Maluku Province, not to mention the promulgation of Law No. 1 of 2003 on the Establishment of North Halmahera Regency, South Halmahera Regency, Sula Islands Regency, East Halmahera Regency, and Tidore Islands City in North Maluku Province. Based on Article 7 of Law No. 1 of 2003, Tidore Islands Regency was established as a new autonomous region (DOB) with 5 administrative territories that came from part of Central Halmahera Regency—Oba and North Oba Subdistricts. The capital of Central Halmahera Regency was initially located in Tidore. The establishment of Tidore Islands City encroached on the territory of Central Halmahera. Meanwhile, the administrative shift of Sofifi as the capital of North Maluku Province, initially in Oba Subdistrict based on the North Maluku Establishment Law, but shifted to North Oba Subdistrict, Tidore Islands City based on Law No. 1 of 2003, has led to a conflict of norms. Thus, the regulation of the new province’s capital has no legal certainty.

Imaginary Capital

In this context, the Petitioners and the North Maluku residents believe their constitutional rights have been or could potentially be harmed due to the legal uncertainty of the province’s capital. They feel denied of equality before the law, especially on regional government, since no other provinces in Indonesia have the same legal issue.

“North Maluku Province is the only region in Indonesia whose capital is imaginary due to the absence of regulations with legal certainty. The imaginary status potentially harms the Petitioners as residents of North Maluku Province because it has an impact on the quality of public services, which are not optimal, and more or less negatively contributes to the acceleration of regional development,” Tauda stressed.

Next, Bubu said the Petitioners had contacted the governments of North Maluku Province and Tidore Islands City following the justices’ recommendation at the previous hearing.

“We have [contacted] the provincial government and at the time the secretary of North Maluku Province also responded positively. However, they would not participate [in the case]. however, we [contacted] the government of Tidore Islands City and they decided to register as a relevant party,” he explained.

Also read: Petitioners: Sofifi Unfit as Capital of North Maluku Province

The case No. 54/PUU-XIX/2021 was filed by Gunawan A. Tauda and Abdul Kadir Bubu on 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 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).

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.

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.

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.”

Writer        : Nano Tresna Arfana
Editor        : Nur Rosihin
PR            : Andhini S.F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/9/2021 12:07 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.

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