The ruling hearing of the judicial review of Law No. 21 of 2001 on the Special Autonomy for Papua Province, Wednesday (8/31/2022). Photo by MKRI/Ifa.

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Thursday, September 1, 2022 | 09:48 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) ruled to dismiss the material judicial review petition 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) by the Papuan People’s Assembly (MRP).

“[The Court] adjudicated; declares the Petitioners’ petition on the judicial review of Article 38 paragraph (2), Article 59 paragraph (3), Article 76 paragraphs (1), (2), and (3) of Law No. 2 of 2021 on the Second Amendment to Law No. 21 of 2001 on the Special Autonomy for Papua Province and Article 77 of Law No. 21 of 2001 on the Special Autonomy for Papua Province inadmissible; reject the Petitioners’ petition for the rest and remainder,” said Chief Justice Anwar Usman at the ruling hearing for case No. 47/PUU-XIX/2021 on Wednesday, August 31, 2022 in the plenary courtroom.

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Court’s Opinions

The Court asserted that the MRP was the cultural representations of indigenous Papuans (OAP) based on respect for customs and culture, for empowering women, and strengthening the harmonious life of religious communities. Therefore, the Petitioners had made an argument on their constitutional impairment and the causality between it and the enactment of Article 6 paragraphs (1) letter b, (2), (3), (4), (5), and (6); Article 6A paragraphs (1) letter b, (2), ( 3), (4), (5), and (6); Article 28 paragraphs (1), (2), and (4); Article 68A paragraph (2) of Law No. 2 of 2021. Thus, regardless of constitutionality issue, the Court asserted, the Petitioners had legal standing in the judicial review of those norms.

Upon observation, Article 38 paragraph (2); Article 59 paragraph (3); and Article 76 paragraphs (1), (2), and (3) of Law No. 2 of 2021 as well as Article 77 of Law No. 21 of 2001 were not only related to indigenous Papuans’ constitutional rights but also the interests of the central and Papua governments, so a petition against those norms could not be filed only by the Petitioners. In addition, they could not make an argument for their actual, specific, or at least potential constitutional impairment as well as the causality between their alleged impairment and the enactment of those norms. As such, the Court declared them lacking the legal standing to challenge those norms.

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Dissenting Opinion

Constitutional Justice Saldi Isra expressed a dissenting opinion on the lack of legal standing for the judicial review of Article 38 paragraph (2); Article 59 paragraph (3); and Article 76 paragraphs (1), (2), and (3) of Law No. 2 of 2021 as well as Article 77 of Law No. 21 of 2001.

He asserted that the Petitioners had illustrated the causality between the enactment of the norms and their constitutional impairment. With the MRP’s position as a cultural representation of indigenous Papuans following Article 1 point 8 of Law No. 2 of 2021, there was not enough ground to deprive the Petitioners of legal standing for the judicial review of Article 6 paragraphs (1) letter b, (2), (3), (4), (5), and (6); Article 6A paragraphs (1) letter b, (2), ( 3), (4), (5), and (6); Article 28 paragraphs (1), (2), and (4); Article 68A paragraph (2) of Law No. 2 of 2021. Within logical reasoning, all those norms were closely related to and intertwined with indigenous Papuans.

Article 38 paragraph (2) of Law No. 2 of 2021 contains the phrase “respect the rights of indigenous peoples” while Article 59 paragraph (3) of Law No. 2 of 2021 contains the phrase “every Papuan resident has the right to obtain health services.” Thus, it would be impossible to separate these two norms from the cultural issues of indigenous Papuans and the interests of Papuans. Similarly, Article 76 paragraph (1), (2), and (3) of Law No. 2 of 2021 and Article 77 of Law No. 21 of 2001 cannot be separated from the MRP as a cultural representation of indigenous Papuans.

As such, if the special substance of the law is always linked to the interests of the regional government because of overlapping interests between the two, it can be said that we have failed to understand the position of cultural institutions in the design of special autonomy. Therefore, all the norms challenged in the petition are related to the cultural interests of indigenous Papuans, thus the Court should have granted legal standing to the Petitioners for all those norms, Justice Saldi concluded.

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

Translation uploaded on 9/7/2022 11:12 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.

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