Constitutional law experts Yusril Ihza Mahendra and M. Rullyandi taking oath before testifying on behalf of the Government, Tuesday (3/29/2022). Photo by Humas MK/Ifa.
Tuesday, March 29, 2022 | 13:02 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing for 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) was held by virtually on Monday, March 28, 2022. The case No. 47/PUU-XIX/2021 was filed by the Papuan People’s Assembly (MRP).
The hearing had been scheduled for the testimonies of the president’s (Government) experts: constitutional law experts Yusril Ihza Mahendra and M. Rullyandi.
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Prefacing his expert testimony, Yusril asserted that there was vagueness in the petition. He said it seemed as if the Petitioners intended for the judicial review of two laws against the 1945 Constitution: Law No. 2 of 2021 and Law No. 21 of 2001, when in fact the law in contention is Law No. 2 of 2021.
It became more obvious in point 6 letter c in the petition, where the Petitioners detailed the articles to review in Law No. 2 of 2021, that is, letters a through g. Meanwhile, in letter h, Law No. 21 of 2001 was mentioned.
“In order to avoid vagueness in the petition, the Petitioners should have filed a judicial review petition of Law No. 21 of 2001 on the Special Autonomy for Papua Province and its amendments,” Yusril said.
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MRP’s Legal Standing
Next, Yusril observed the Petitioners’ legal standing and constitutional impairment. He explained that the MRP was founded based on Law No. 21 of 2001 on the Special Autonomy for Papua Province. Thus, since it is not an individual citizen nor is it a public or private legal entity, nor is it an existing customary law community that is recognized under the law.
“The simplest category for the MRP is state institution. However, although it can be categorized as such, its establishment was not based on a direct mandate by the 1945 Constitution, but on a law. Therefore, since it was founded based on a law, its constitutional rights and authorities are not general and exhaustive, such as in relation to the constitutional rights of citizens and legal entities,” he explained.
Yusril believed the MRP did not have direct, real, and factual or potential constitutional impairment in any form that according to logical reasoning could occur due to the enactment of the articles on the appointment of DPRP and DPRK members in Law No. 2 of 2021. The MRP cannot argue that it has constitutional rights and authorities to request a review of those articles despite representing Papuans in certain matters.
“The MRP is truly a representative institution of Papuans in certain matters as mentioned in the law, but is not in the context of having legal standing to file a judicial review petition of those articles to the Constitutional Court,” he stressed.
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Local Political Parties
Yusril said local political parties highly depended on the legislatures, in this case the president and the House of Representatives (DPR). They asserted that local parties in Aceh must be maintained, but those in Papua must be dissolved with the second amendment to Law No. 21 of 2001. If any individuals who have the right to form local political parties in Papua feel their constitutional rights have been impaired by the dissolution, they have the constitutional right and authority to petition the norm. Existing local political parties in Papua also have the same right and authority.
“However, the MRP as a state institution formed based on the Law on the Special Autonomy for Papua Province did not suffer have any impairment on their constitutional right or authority due to the revocation of the norms on local political parties in Papua. Besides, if the norms have been revoked, what norm in the second amendment to the law that is being petitioned in the Constitutional Court? It is a paradox [as] only norms in positive law can be petitioned formally or materially in the Constitutional Court,” Yusril stressed.
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MRP’s Representation
Constitutional law expert M. Rullyandi said that Law No. 2 of 2021 on the Second Amendment to Law No. 21 of 2001 on the Special Autonomy for Papua Province was not unconstitutional because it was formulated according to the mandate of the 1945 Constitution in the context of asymmetrical decentralization, especially for the Papua Special Autonomy, based on the principle of a unitary state and guarantee for the protection of constitutional rights, as regulated in the 1945 Constitution. In addition, based on the Preamble to the 1945 Constitution, which is the main idea of the noble ideals of the nation in forming a state government that protects the entire Indonesian nation and the entire land of Indonesia within a unitary state in the form of a republic based on the values of Pancasila as the basis and ideology of the state in the paradigm of the framework of thought, source of values, and orientation towards legal development by realizing social justice for all Indonesian people, especially for Papuans.
Furthermore, Rullyandi believed the MRP’s cultural representation of indigenous Papuans in the protection of their rights based on respect for customs and culture, women empowerment, and strengthened religious harmony, are not explicitly regulated either in special chapters of regional regulations or in the 1945 Constitution.
“[The MRP’s cultural representation] does not constitute ejusdem generis or part of the genus as subjectum litis of the parties who believe their constitutional rights and/or authorities would be harmed by the enactment of a law, as a prerequisite to filing a judicial review petition, by individuals, customary law communities, public/private legal entities, and state institutions,” he said.
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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) was challenged materially by the Papuan People’s Assembly (MRP), represented by Timotius Murib (Chairman), Yoel Luiz Mulait (Vice Chairman I), and Debora Mote (Vice Chairman II) in case No. 47/PUU-XIX/2021.
At the virtual preliminary hearing 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). The Petitioners are the cultural representations of indigenous Papuans for the protection of their rights based on respect for customs and culture, for empowering women, and strengthening the harmonious life of religious communities, who have a direct interest in the a quo law.
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.
“The deletion of Article 68 paragraphs (1) and (2) on the abolition of the formation of political parties and the change of the phrase ‘must’ to ‘can’ in Article 68 paragraph (3) of Law No. 2 of 2001 is clearly unconstitutional,” said Murib.
He also said that the fact that Article 77 remains has made the article multi-interpretive. The article regulates that proposals for the amendment to the Papua Special Autonomy Law may be submitted by the people of the Papua Province through the MRP and DPRP to the House of Representatives (DPR) or the Government in accordance with statutory regulations. He revealed that the amendment to several articles of Law No. 21 of 2001 is purely central government’s initiative, not a proposal by the Papuans.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 4/4/2022 11:07 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.
Tuesday, March 29, 2022 | 13:02 WIB 472