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Indonesia: Constitutional Court Rejects Challenge to Law Establishing Papua as a Province

(Jan. 31, 2020) On January 6, 2020, Indonesia’s Constitutional Court (Mahkamah Konstitusi) issued a decision in which it rejected an application for judicial review of Law No. 12/1969 on the establishment of the West Irian Autonomous Province and the Autonomous Districts in the West Irian Province. (Mahkamah Konstitusi Putusan [Decision] No. 35/PUU-XVII/2019.) The area that made up the West Irian province, on the western part of the island of New Guinea, was subsequently called Papua province and was later divided in 2003 into two provinces: Papua province and West Papua province. Both provinces have a special autonomous status under  Law No. 21 of 2001 on Special Autonomy for the Papua Province.

Law No. 12/1969, “which was the legal basis of Papua’s integration with Indonesia after Dutch colonization, has been considered controversial for more than 60 years.” The application for judicial review of the law was made in April 2019 by a ”coalition of Papuan lawyers, customary (adat) and political leaders, led by Yan Christian Warinsussy.” The group called itself the Coalition of Lawyers for Truth and Justice of the West Papuan People. The Indonesia at Melbourne blog states that

[t]he General Elucidation (explanatory memorandum) to Law No. 12 of 1969 explains that the “Act of Free Choice”, conducted in August 1969, was a manifestation of the Papuan people’s aspirations, made in full awareness and with a feeling of unity with the peoples of other regions in Indonesia, to decide absolutely that West Irian was part of NKRI [Negara Kesatuan Republik Indonesia]. The elucidation goes on to state that this result of the Act of Free Choice is valid and final and cannot be challenged by any interested parties.

The applicants … argue that this assertion conflicts with the right to freedom of belief and expression and the right to feel secure and be protected from threats to basic rights in articles 28E(2) and 28G(1) of the [Indonesian] Constitution. The applicants assert that the 1,025 Papuans who participated in the Act of Free Choice were forced to vote for integration with Indonesia.

Articles 28E(2) and 28G(1) were added in August 2000 as part of the second amendment to the Constitution following the fall of the New Order. The original 1945 Constitution, in effect at the time of the Act of Free Choice, contained only weak protections for human rights. The Constitutional Court is being asked to decide whether Law No. 12 of 1969 contravenes the Constitution in its current form.

The applicants argue that Law No. 12 of 1969 is unconstitutional because, in the conduct of the Act of Free Choice, Papuans were denied their basic rights guaranteed by Articles 28E(2) and 28G(1). The applicants also contend that the Act of Free Choice was not conducted in accordance with the terms established in the 1962 New York Agreement, which settled the 12-year long conflict between Indonesia and the Netherlands over Papua and facilitated the transfer of administration in Papua from the Netherlands to Indonesia.

At the Second Papuan People’s Congress in 2000, the legitimacy of the New York Agreement and the Act of Free Choice was rejected. The Papuan People’s Congress is an assembly of Papuan leaders and tribal representatives that has now met three times since 1969. Several members of the Coalition that brought the case to the Constitutional Court were also influential figures in the Congress. A Radio New Zealand article explains that

[t]he Act of Free Choice took place over a number of weeks and involved the vote of 1022 West Papuans, or around 0.2 percent of the population at the time, selected by Indonesian officials and military.

The referendum, which is widely regarded to have been stage managed and resulted in an unanimous vote for integration into Indonesia, was noted by the UN General Assembly.

Indonesia’s government says Indonesian sovereignty in Papua is final, and has consistently rejected claims that the Act of Free Choice, or Perpera, didn’t meet international standards of self determination.

In its decision, the Constitutional Court held that it could not assess the validity of the Act of Free Choice because it had been recognized by a United Nations General Assembly resolution, A/RES/2504(XXIV) (Nov. 19, 1969), stating that “[t]o postulate the loss of constitutional rights from the provisions in Law 12/1969, which incidentally is a law following up on an event of international law … is the same as “forcing” the court to assess the validity of UN actions … The Court clearly does not have such authority.” (Decision at 37.)

The Court also considered that the applicants did not have standing to seek a review of the law, as only regional governments had legal standing to challenge a regulation on the formation of regions. (Decision at 39.)