Ungracious reception of SBY’s Kado Natal for Papua
Information and Analysis, 4 March 2005
by Petra Stockmann
Why the Government Regulation on the Papua People’s Council has been greeted with protest rather than joy
On December 26th, 2004, President Susilo Bambang Yudhoyono (SBY) paid a visit to Papua. As a “Kado Natal”, a Christmas gift, he brought along with him a long overdue piece of legislation, namely the Government Regulation on the Papua People’s Council. The Papua People’s Council (Majelis Rakyat Papua, MRP) is a special institution of high importance for the Papua, provided for under the Special Autonomy Law for Indonesia’s easternmost province. The to-be-established Council plays a crucial role as concerns two topics currently high on the political agenda, namely the question of the partition of Papua and the upcoming direct elections of regional administration heads.
But SBY’s Presidential Christmas gift has been greeted with protest by some of the recipients. Criticism in some quarters of Papuan society did not only question provisions in this piece of implementing legislation but has included the suggestion to hand the entire Special Autonomy Law back to the Central Government should it not be properly implemented. What then are the stones of contention and are they justified? Before we take a closer look at the Government Regulation No. 54/2004 on the Papua People’s Council, a brief overview of developments related to this issue shall be provided.
Background
The first piece of legislation in the era reformasi concerning Papua mirrored a continuation of the old regime’s divide and rule policies: In 1999, the Habibie administration and the outgoing Suharto-era Parliament (DPR) enacted Law 45/1999 which amongst others determined the division of Irian Jaya – as Papua was then still called – into three provinces, or more precisely: the establishment of the Province of Central Irian Jaya and the Province of West Irian Jaya. A storm of protest arose in Papua; and the Provincial Parliament recommended to the Central Government that the Law be repealed. In October 1999, the new People’s Consultative Assembly determined in its Broad Outlines of State Policy 1999-2004, the binding guidelines for the President, that Special Autonomy should be provided for the Province of Irian Jaya and cases of human rights violations be resolved by judicial means. Shortly after coming into office, the new Central Government under President Abdurrahman Wahid stopped the implementation of the Law 45/1999 on the division of Papua – which nevertheless remained on the statute books.
In its next Annual Session, in August 2000, the People’s Consultative Assembly recommended that at the latest on May 1st, 2001, Special Autonomy legislation for Aceh and Papua should be released. Apart from the Central Government, also leading figures in Papua started work on draft legislation. Endowed with unanimous support by the Provincial Legislature, the Papuan Draft Special Autonomy Law was eventually submitted to Abdurrahman Wahid. Surprisingly, the DPR then opted for the Draft from Papua as the basis for its deliberation, not for the one from the Central Government. Finally, in November 2001, the Law on Special Autonomy for Papua, as the province was now officially named, was enacted. The Law carries the signature of President Megawati who would, however, soon begin to steer a far more nationalist course than her predecessor.
In January 2003, Megawati issued a Presidential Instruction on the Acceleration of the Implementation of Law No. 45/1999. She could refer to the same Law, as despite its implementation having been put on hold Law 45/1999 had not been repealed – and no mention at all had been made of the same in the Special Autonomy Law. In the following months the Central Government pressed ahead with the establishment of the two new provinces: But whereas the Province of West Irian Jaya was officially established in February 2003, the creation of the Province of Central Irian Jaya was put on hold in August 2003 after violent clashes that left several people dead.
The Central Government’s partition policies were challenged in Court: In November 2003, an appeal for judicial review of Law 45/1999 was filed to the newly established Constitutional Court, with John Ibo, Head of the Papua Provincial Parliament, the official plaintiff. In its verdict issued one year later, the Court declared that, with the enactment of the Special Autonomy Law, the validity of Law 45/1999 was contrary to the amended Constitution and that the latter had no longer any binding legal validity as of the issuance of the verdict. However, in its legal considerations, the Court declared the existence of the Province of West Irian Jaya a fact and opined that “… the existence of provinces and regencies/municipalities that have come into existence based on Law 45/1999 is valid unless the Court declares otherwise.” (For details cf. https://www.watchindonesia.de/3678/papua-special-autonomy-constitutional-court?lang=en)
This left the Province of West Irian Jaya in existence but without a necessary legal basis. Several recent pieces of implementing legislation and the debates preceding them seem to show the Central Government’s attempt to introduce a legal basis, if not for the contested province, then at least for some of its institutions, through the backdoor. This also holds true for SBY’s Christmas present, the Government Regulation on the Papua People’s Council, as we shall see.
The Papua People’s Council – an institution for political or cultural representation?
The idea for the establishment of a Papua People’s Council originated from the Papuan Draft of the Special Autonomy Law. Therein, the MRP was explicitly conceived as part of the legislative branch, meaning that the Provincial Parliament should consist of the MRP and the DPRP (Dewan Perwakilan Rakyat Papua, Papua People’s Representative Council). The MRP is thereby envisaged to consist of representatives of adat (customary law) communities, of religions and of women, with each group holding one-third of the MRP seats. Members are required to be indigenous Papua, with their term of office, like the one for their DPRP colleagues, five years. As tasks and authority of the MRP the Draft stipulated amongst others: “…a) together with the DPRP elect, appoint and dismiss the Governor and the Vice Governor; b) together with the DPRP draft and determine Basic Regulations and the Broad Outlines of Policies on the Development of the Province of Papua”.
The Special Autonomy Law has taken up the concept of the Papua People’s Council. But while its composition has been taken over, the status of the MRP has been changed considerably. It is no longer explicitly mentioned as part of Parliament, which is stipulated to be only the DPRD (Dewan Perwakilan Rakyat Daerah), respectively the DPRP (Dewan Perwakilan Rakyat Papua) as the provincial DPRD in Papua was henceforth called. The role of the MRP is designed as follows: “In the framework of implementing Special Autonomy in the Province of Papua, a Papua People’s Assembly shall be established which constitutes the cultural representation of the indigenous people of Papua, which has certain authority in the framework of protecting the rights of the indigenous people of Papua, based on respect for adat and culture, empowerment of women and consolidation of harmony in religious life.”
Nevertheless, the MRP is then still granted considerable political authority including a role in the legislative process. The two tasks and authorities listed in the Law which correspond with the mentioned ones in the Draft read: “a) to give consideration and approval (pertimbangan dan persetujuan) for the prospective candidates for Governor and Deputy Governor proposed by the DPRP; … c) to give consideration and approval to the Draft Perdasus (Special Regional Regulation) submitted by the DPRP together with the Governor”.
The status of the MRP has been contested. For determining details concerning composition, role and function implementing legislation was necessary, among others a Government Regulation issued by the Central Government. This had only been forthcoming in December 2004.
In the following we shall look step by step at how provisions laid down in the Special Autonomy Law are specified in the Government Regulation. As implementing legislation which is accorded a lower rank than a law in the hierarchy of legal sources, the Government Regulation must be in compliance with the Special Autonomy Law. If this is not the case, it could be challenged before the Supreme Court.
Composition
Like the Draft, the Special Autonomy Law determines that the MRP is staffed with indigenous Papua and consists of representatives of adat communities, of religions and of women, with each group holding one-third of the MRP seats. The Government Regulation now adds to it that the MRP members’ total number may not exceed three fourth of the number of DPRP members (currently 56), which means not more than 42.
The Government Regulation also provides conditions for membership and specifies what is to be understood by the mentioned groups:
- Indigenous Papua: Like in the Special Autonomy Law, ‘indigenous Papua’ is stipulated to mean a person descending from the “Melanesian race group that consists of indigenous ethnic groups” in the province and/or a person recognised and accepted as indigenous Papua by the adat community;
- Adat community (masyarakat adat): The adat community are indigenous Papuan citizens living in an adat area and adhere to a certain adat with strong solidarity among group members. The adat representatives in the MRP need to be recognised and accepted by the adat community.
- Religious community (masyarakat agama): The religious community comprises all inhabitants of the province adhering to a religion. Representatives from religions need to have a recommendation from the religious institution concerned.
- Women’s community (masyarakat perempuan): The women’s community comprises all female inhabitants of the province. Women’s representatives are required to actively and consistently fight for women’s rights and be accepted by the community of women (komunitas perempuan).
Numerous conditions listed for prospective MRP members are similar to those laid down for Members of Parliament. Only one other shall concern us here, namely the explicit condition that a prospective MRP member may never have been involved in acts of makar against the Unitary State of the Republic of Indonesia (NKRI). The dictionary meaning of makar includes ‘attack’, ‘attack against the government’ and ‘coup d’état’. It might be worthwhile looking up the legal definition and use of the term in Indonesia’s Criminal Code: ‘Makar’ is translated in the official translation of the Indonesian Criminal Code with ‘attempt to commit an act’. In the definition of the word in the Criminal Code it reads: An ‘attempt to commit an act’ (makar) exists as soon as the intent of the perpetrator has revealed itself by a commencement of a performance …”. The term makar is then employed in the Criminal Code only in the section entitled ‘Crimes against the Security of the State’: The one most relevant for the case at hand is Article 106 which in the official translation reads: “The attempt undertaken with the intent to bring the territory of the state wholly or partially under foreign domination or to separate part thereof, shall be punished by life imprisonment or a maximum imprisonment of 20 years.”
All ‘makar’ provisions in the Criminal Code carry such high penalties. The question is with what intention the condition of not having been involved in any acts of ‘makar’ against the state has explicitly been taken into the list of conditions. Anyone ever having been sentenced to a prison term of more than five years is anyway excluded from becoming an MRP member. Does this suggest that rather a very broad understanding of “acts of attempts against the NKRI” is intended in this exclusion provision?
In this respect it is worthwhile looking with whom the power to decide whether or not membership conditions are met lies. It is the Minister of Home Affairs who can reject an already elected MRP member if he considers that a membership condition is not met. Objections against the decision can then only be submitted to the Minister himself whose subsequent decision is final and binding. A broad interpretation of makar acts could thus provide a tool for the Central Government to exclude unwanted – elected – MRP members. And this not only before they enter office, but also during their tenure, as being charged with acts of makar is also a reason for suspension and, in my understanding – the provision is not entirely unambiguous –, dismissal as MRP member by the same Minister. Other grounds for suspension by the Minister are terrorism or corruption charges and/or indictment for a crime against state security. It is commendable that most grounds for dismissal – carried out by the Minister – require an investigation and verification procedure before the MRP’s Honour Council. Just how much weight a decision of the Council carries and what role the MRP leadership plays in the process is not unambiguously clarified. Grounds for dismissal include among many others in various fashions the familiar lack of loyalty to the unitary state: For once, violating the oath of office which includes a pledge of loyalty towards not only Pancasila and the Constitution, but also to the Nation and the Unitary State of the Republic of Indonesia, might result in dismissal. Furthermore, the Government Regulation explicitly prohibits MRP members any betrayal of Pancasila, the Constitution, the Unitary State of the Republic of Indonesia and the legitimate government, with contravention again threatened with eventual dismissal.
The crucial paragraphs that can be (ab)used as a tool to get rid of unwanted MRP members seem to me to be the makar provisions which allow the Minister of Home Affairs to take direct action. Should the same be used in an exclusionary way, this will most likely serve not only for rebels and staunch independence supports as a proof that the MRP is an institution intended to do the Central Government’s bidding and Special Autonomy not a solution worth supporting.
Role in election of Governor
The provision in the Special Autonomy Law relevant for the upcoming elections of regional administration heads is the one stipulating as task and authority: “a) to give consideration and approval for the prospective candidates for Governor and Deputy Governor proposed by the DPRP”. The corresponding provision in the Government Regulation basically reiterates this clause but limits it by adding: “Giving consideration and approval as mentioned in paragraph 1 (i.e. the repetition of the provision from the Law) relates only to the condition of the prospective candidate pair for Governor and Deputy Governor being indigenous Papua.”
With this addition, the authority of the MRP in this respect has been rendered meaningless, as under the Special Autonomy Law it is anyway stipulated that the Governor and his/her Deputy shall be indigenous Papua. In my understanding it is an undue circumscription of the MRP’s authority for which the Special Authority does not provide cover.
Role in the legislative process
A crucial task and authority that makes the MRP an important political body is its role in the provincial legislative process. As mentioned the Law stipulates as task: “c) to give consideration and approval to the Draft Perdasus submitted by the DPRP together with the Governor …”. A Perdasus, acronym for Special Regional Regulation, is a Regional Regulation of the Province of Papua in the framework of implementing provisions in the Special Autonomy Law.
The MRP’s role in the legislative process is reiterated in the provision on the same: “The Perdasus shall be drawn up and determined by the DPRP together with the Governor with the consideration and approval of the MRP” and in the provision stipulating as the Governor’s duty to “… h) submit a Draft Perdasus and to determine it as Perdasus together with the DPRP after having obtained the consideration and approval of the MRP.”
These provisions have been quoted at some length to show that despite the Law’s description of the MRP’s role as a body for cultural representation, the institution has been accorded a definite political role. Without explicitly naming it as such, the MRP plays a crucial part in the legislative process, as a Perdasus, a Special Regional Regulation, clearly requires the approval of the MRP before coming into effect.
An even stronger legislative role could possibly be deducted from the Elucudation to the Article on the Law Commission, which states: “The establishment of the Law Commission is intended for aiding the Governor, the DPRP and the MRP in preparing draft Perdasus and Perdasi as an act of furthering the implementation of this law.” Here, the MRP is indirectly to be granted even the authority to draft legislation. – An indication for the direction that implementing legislation should take?
The Government Regulation contains specifying procedural provisions: A Draft Perdasus made by the Provincial Government and Parliament is to be submitted to the MRP. The MRP then has 30 days for debate. “In giving consideration and approval … the MRP conducts consultation with the Provincial Government and the DPRP. In the case that the Draft Perdasus does not get consideration and approval for more than 30 days …, the Draft Perdasus is considered to have already obtained consideration and approval by the MRP.”
In my opinion, this is yet another clause which undermines the provision in the Special Autonomy Law. Approval is necessiated within 30 days otherwise the Perdasus is considered as approved. This seems to leave no possibility for the MRP to openly reject a piece of legislation. In my understanding, the MRP’s function is downgraded here to an advisory body that may enter into consultation with the legislators (Government and Parliament), but is stripped of its role in the legislative process that is provided for under the Special Autonomy Law.
Division of Papua
Another crucial task of the MRP granted in the Special Autonomy Law is its role in any change of the status of the province: “The division (pemekaran, lit.: the making of more provinces out) of the Province of Papua shall be carried out with the approval of the MRP and the DPRP after having seriously taken into consideration social-cultural unity, the readiness of the human resources and the economic capacity and future development.” As we have seen above, this provision has been sidestepped entirely by the Central Government in pushing through its division policies.
The Government Regulation now stipulates as procedure that any partition plan is submitted by the Provincial Government and Parliament to the MRP for consideration. The MRP or rather its respective working group is granted 30 days for deliberation during which it may also “ask for explanation” from the Provincial Government and Parliament. Then follows a similar provision as for approval of legislation: “In the case that the partition plan does not get consideration and approval for more than 30 days …, the partition plan is considered to have already obtained consideration and approval by the MRP.” Again, no provision is made for the MRP to reject a partition plan. Once more, we find the provision in the Special Autonomy Law undermined, thus reducing the MRP to an advisory body without real political authority.
Concerning the problem of dividing Papua, three more clauses are included in the Government Regulation. What looks like an attempt to provide at least a legal basis for one of the institutions in the established contested province quasi through the backdoor met with decided criticism amongst others by the Provincial Government in Papua: In deliberations preceding the issuance of the Government Regulation it had reportedly been the Central Government’s wish to have provisions on an MRP for West Irian Jaya included. The official delegation from Papua present in the deliberations rejected this idea with the argument that the MRP under discussion was mandated by the Special Autonomy Law which was for the Province of Papua, not for West Irian Jaya; the latter was not at all mentioned in the Law. The delegation opined that there was no legal basis for an inclusion of West Irian Jaya into the Government Regulation on the MRP; if the Central Government was consistent in the implementation of the Special Autonomy Law’s mandate, it could not push through the inclusion of regulations for West Irian Jaya in the Government Regulation on the MRP.
In the final version of the Government Regulation implicit mention is made of West Irian Jaya. While underlining that it is the responsibility of the Central Government to solve the partition problem, the Government Regulation accords an assisting role to amongst others the new MRP: “The MRP together with the Provincial Government and the DPRP as the mother province has the task and the responsibility to help the [Central] Government to solve the problem of dividing the Area (Wilayah, meaning the Province of Papua) that has been carried out before the issuing of this Government Regulation while taking into consideration the reality and in accordance with legislation at the latest 6 months after MRP members have been installed.” Does Governor Solossa’s recent proposal to divide Papua into five provinces, which according to him would take socio-cultural and geographical aspects as well as human and natural resources into consideration, need to be seen in this context? –
Furthermore, the Government Regulation has two clauses included that deal with the establishment of MRPs in new provinces resulting from partition. No specific mention is made of West Irian Jaya, but it is stipulated in general terms that an MRP shall be established in the event that partition results in new provinces. Interestingly, despite the above mentioned criticism from the Papua team, the Government Regulation accords the responsibility for the establishment of MRPs in new provinces to the to-be-established MRP in Papua, in co-operation with the Provincial Government and Parliament.
Election procedure
Only key aspects concerning the election procedure shall be sketched below. A number of points are not yet explicated in every detail which leaves some important questions open. Hopefully these will be clarified in the Regional Regulation (Perdasi) that shall be issued; the drafting process is currently under way.
The first problem arises in my view concerning the electorate. The latter is stipulated to consist of members of the adat community, of the women’s community and of the religious community. But it is nowhere clarified who may vote for which candidates. Here, clarification is indispensable.
Different election procedures are stipulated for the different groups represented in the MRP – candidates for adat and women’s representatives on the one hand, representatives of religions on the other. The election of adat and women’s representatives shall be carried out in two stages, on the district level, where also the registration of candidates takes place, and then on the level of regencies and municipalities. The election of representatives of religions takes place in one stage, on the provincial level.
For the election of adat and women’s representatives the procedure is as follows: The candidates that have been elected on the district level will then choose on the level of regencies and municipalities two candidates from their midst by way of musyawarah dan mufakat, deliberation and consensus. If no agreement can be reached this way, it can be resorted to voting. As I understand it, from the two candidates chosen for each regency/municipality, the name of the one that received more support will be forwarded to the Minister of Home Affairs. The second might be envisaged as an alternative candidate. As Papua currently consists of 28 regencies and municipalities this election procedure results in candidates for 28 seats representing adat and women’s representatives. However, no provisions are laid down to arrange for an even distribution of 14 adat and 14 women’s representatives in the 28 regencies and municipalities.
For the representatives of the religions the procedure is as follows: All religious communities can propose at the most as many candidates as there are regencies and municipalities, i.e. 28. Just how the (s)election procedure is then to take place, remains a puzzle to me. The Government Regulation determines the following: “MRP candidates that fulfil the MRP [membership] conditions … are elected by way of deliberation and consensus (musyawarah dan mufakat) by the religious community (masyarakat agama, definition see above) on the provincial level while paying attention to the proportion of the number of their adherents.” Only if this – in my view rather impossible – undertaking does not work, it can be resorted to voting. No further clarification is provided. It is only added that the ratio of representatives of the different religious communities is determined by the provincial election committee on the basis of the number of adherents of each religion. The election results are then forwarded to the Minister of Home Affairs for legalisation.
Reactions
The issuance of the Government Regulation met with criticism and protest in Papua. During demonstrations banners carried slogans such as “The Kado Natal (MRP) does not bring prosperous peace for the people of West Papua”, “The Government Regulation on the MRP is an Indonesian strategy to destroy the Papuan nation”. Criticism by a representative of the Coalition for the Struggle for the Civil Rights of the Papuan People included furthermore the argument that the 14 adat representatives in the MRP could not properly represent the more than 250 adat communities in Papua.
Harsh criticism was also voiced by the Adat Council Papua (Dewan Adat Papua, DAP), a body established during the Second Papua Congress in 2000. The DAP was the institution that had proclaimed the mentioned deadline of August 15th, 2005, after which it would lobby for the handing back of the entire Special Autonomy Law should the same not be properly implemented. The DAP criticised that the Government Regulation was unclear, ambivalent, discriminatory and would not mirror the spirit of the Special Autonomy Law; it was a violation of the political rights of the Papua. The Council stated that several articles needed to be revised in the corresponding Regional Regulation (Perdasi), among others the makar provision and the articles on the candidates, on the electorate, on the election procedure and on the division of the province.
Conclusion
One can certainly question the democratic credentials of a body like the MRP – in my view, making the election procedure as democratic as possible should be the guiding principle when determining the details on the election procedure in implementing legislation. However, for Special Autonomy to be attractive as a tool for conflict resolution in Papua the MRP is of considerable importance. With the issuance of this Government Regulation, the Central Government has downgraded the MRP to a toothless debating club – a move which will probably not further the process of conflict resolution in Papua. The protests and criticism mentioned above testify to the fact that in different quarters of Papuan society it is understood exactly as such. Special Autonomy is already a concept that does not convince many Papuans. Continued improper implementation will only further discredit this path and drive people towards those groups that favour independence. Papuans don’t need Kado Natals, but rule of law or rechtsstaat, and that their rights be guaranteed.
I am grateful to Dr. Siegfried Zöllner, Alex Flor and Esther Heidbüchel for comments.
Sources:
Draft Special Autonomy Law (esp. Art. 10):
Indonesian: http://www.westpapua.net/cases/autonm/otsus.htm
English: http://www.westpapua.net/cases/autonm/otsusbe.htm
Special Autonomy Law (Law No. 21/2001) (esp. Art. 5, 14, 20, 29, 32, 76):
Indonesian: http://www.ri.go.id/produk_uu/datar_isi-2.htm
English: http://www.gtzsfdm.or.id/documents/laws_n_regs/laws/2001/Law21_2001.pdf
https://www.watchindonesia.de/AfP2003docum.htm
Government Regulation No. 54/2004 on the MRP:
http://www.gtzsfdm.or.id/documents/laws_n_regs/regulations/2004/PP_54_2004_Majelis%20Rakyat%20Papua.pdf
Criminal Code (esp. Art. 87, 106):
Indonesian: http://www.moj.gov-rdtl.org/tlaw/IndonesianLaw/undang/kuhp.htm
Official English translation:
http://www.moj.gov-rdtl.org/tlaw/IndonesianLaw/english/codes/Penal-Code-E.pdf
Newspapers (online version): Cenderawasih Pos, Sinar Harapan, The Jakarta Post
Papua Provincial Government homepage, news: http://beritautama.papua.go.id/
