Ifdhal Kasim, Zainal Arifin Mochtar, and Herlambang Perdana Wiratraman testifying as experts for the Petitioners virtually at the judicial review hearing of Law No. 2 of 2021 on the Special Autonomy for Papua Province, Thursday (1/13/2022). Photo by Humas MK/Ifa.
Thursday, January 13, 2022 | 15:39 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Law No. 2 of 2021 on the Second Amendment to Law No. 21 of 2001 on the Special Autonomy for Papua Province (Papua Special Autonomy Law) on Thursday, January 13, 2022 in the plenary courtroom. The case No. 47/PUU-XIX/2021 was filed by the Papuan People’s Assembly (MRP), represented by Timotius Murib (Chairman), Yoel Luiz Mulait (Vice Chairman I), and Debora Mote (Vice Chairman II).
At the hearing, former chairman of Komnas HAM (National Commission on Human Rights) Ifdhal Kasim said the Papua Special Autonomy Law could actually be a renegotiation effort through rearrangement of the government, politics, law, and economy of the Republic of Indonesia. However, the renegotiation did not run smoothly, fairly, and with participation. The amendment of the a quo law disregarded the most important element—consultation and dialogue with the people, facilitated by the MRP—when the decision-making would have impacted the rights and interests of indigenous Papuans (OAP).
Also read: Papuan People’s Assembly Challenges Revised Papua Special Autonomy Law
He said that the declaration of individual rights highlighted the importance of public participation, which is emphasize in Article 18 of the 1945 Constitution—that the customary law people have participatory right in the making of decisions related to matters that will impact their rights. The right is exercised through representation, who they elect based on their procedure, which also serves to preserve their traditional decision-making institution.
“It is obvious that as the provision of Article 77 of Law No. 21 of 2001 on the Papua Special Autonomy Law does not sufficiently guarantee this right, especially it can be proposed by [indigenous Papuans] through the MRP and the [DPRP (Papuan People’s Representatives’ Council)] because it is not imperative that proposals for legislative amendment must go through the MRP as the cultural [representation] of [indigenous Papuans]. It could be through consultation, hearing meeting with Papuans through the MRP,” Ifdhal explained virtually at the hearing chaired by Chief Justice Anwar Usman.
He believes that, from the perspective of internal self-determination, Article 6 paragraphs (1)-(4) of the a quo law does not position indigenous Papuans equally before law and in government. This obviously is not in line with the declaration of individual rights, which stipulates that customary law communities and their people are free and equal with other citizens and have the right to exercise that right based on their origins or identities. In addition, the provision also goes against the international covenant on civil and political rights.
Also read: Mahfud MD: Papua Special Autonomy Law Affirms Papua’s Legitimacy in NKRI
At the same hearing, Gadjah Mada University constitutional law expert Zainal Arifin Mochtar explained that the phrase ‘in accordance with the laws and regulations’ is neutral. However, when put in Article 6A letter a of the a quo law, it resulted in extraordinary multiple interpretations and potentially lead to legal uncertainty.
He asserted that the phrase could refer to any laws and regulations when, in fact, in terms of special autonomy, regional aspirations must be prioritized in the making of regulations. He said such regulations are better and be regulated further specifically. In addition, he said, the law must be connected with policymaking—in terms of legal politics, academic texts, discussions, and comparison to the previous law.
Also read: House: Papua Special Autonomy Law Gives More Authority to Papuans
At the virtual preliminary hearing for case No. 47/PUU-XIX/2021 on Wednesday, September 22, 2021, the Petitioners argued that Article 6 paragraph (2), Article 6A, Article 28, Article 38, Article 59 paragraph (3), Article 68A, Article 76, and Article 77 of the Papua Special Autonomy Law have violated their constitutional rights as indigenous Papuans (OAP). They believe there are clauses in the amendment to the a quo law that actually harm the Petitioners’ interests and constitutional rights in particular and those of indigenous Papuans. The changes and addition of new norms in Article 6 paragraphs (4) and (5) of the a quo law on the position, composition, duties, and authorities, rights, and responsibilities of the leadership membership and apparatuses of the Papuan People’s Representatives’ Council (DPRP) and the Regency/City Legislative Council (DPRK) in accordance with the provisions of the legislation have actually led to legal uncertainty.
Therefore, in the petitum, the Petitioners requested that the Court declare Article 6A paragraph (1) letter b and paragraph (2); Article 6A paragraph (1) letter b and paragraph (2); Article 28 paragraphs (1), (2), and (4); Article 38 paragraph (2); Article 59 paragraph (3); Article 68A; and Article 76 paragraphs (1) and (2) of Law No. 2 of 2021 unconstitutional and not legally binding. They also requested that the Court declare Article 6 paragraph (4) and Article 6A paragraph (4) contrary to the phrase ‘in accordance with statutory regulations’ and not legally binding insofar as interpreted as ‘statutory regulations in question are special regional regulations (perdasus) and provincial regulations (perdasi) of the Papua Province.’
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 01/14/2022 12:12 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.
Thursday, January 13, 2022 | 15:39 WIB 334