Constitutional Court rejects request to review law on formation of Irian Barat Province

On 12 April 2019, a group of Papuan civil society representatives, the Papuan Tabernacle Church (KINGMI Papua) and the Papuan Women Solidarity (SPP) officially registered an application for the annulment of certain sections in No. 12 of the year 1969 on the formation of the autonomy province Irian Barat (nowadays consisting of the provinces Papua and Papua Barat) to the Indonesian Constitutional Court. The applicants argued that those parts of the law referring to the implementation of the Act of Free Choice (PEPERA) contradict the human rights principles as stipulated in the 1945 Constitution of the Republic of Indonesia. The annulment of these sections would have a significant meaning for the people of Papua to rectify the history of Papua integration into the Republic of Indonesia.

The Constitutional Court rejected the application on 6 January 2020. The judges argued that the applicants did not have the legal standing to request a review of the law as they are not experiencing any impairment of their constitutional rights as a result of Law No. 12/1969. The judges explained that the applicants substantially questioned the implementation of the Act of Free Choice on 2 August 1969 as recognised by the UN General Assembly Resolution No. 2504 (XXIV), but not Law No. 12/1969 itself.

One of the applicants’ lawyers, Mr Yan Christian Warinussi, regretted the Court ruling, representing the view that the Constitutional Court’s explanation was insufficient. He argued that Law No. 12/1969 set the legal foundation for the ‘Unitary State Ideology’ (NKRI harga mati) in Indonesia which resulted in the discrimination of indigenous Papuans – including the applicants – with regard to the enjoyment of constitutional rights such as the freedom of expression, freedom of opinion as well as the freedom of peaceful assembly and association. According to Warinussi, the applicants will study the Constitutional Court ruling and assess how to follow-up.

Historic background
Historic documents and testimonies of witnesses describe that the Act of Free Choice was accompanied by human rights violations against the indigenous population of West Papua. Indonesia was mandated to administer a UN-supervised referendum on the future of the territory in 1969, the so-called 'Act of Free Choice'. Instead of organising a one-men, one-vote referendum, Indonesia handpicked a council of 1,026 tribal leaders from a population of more than 800,000, who would decide on behalf of the Papuan people whether the territory would integrate with Indonesia or opt for independence. Faced with coercion and intimidation, the council returned a unanimous decision in favour of Papua's integration with Indonesia.

Papuans describe the 1969 consultation as an 'Act of No Choice'. The legitimacy of the process has also been questioned by the few international observers present at that time, human rights activists and legal experts in Indonesia and internationally. Yet at the time, the UN merely 'took note' of the undemocratic process of the Act.  This amounted to recognition of Indonesian sovereignty (unlike East Timor, whose forced integration into Indonesia was never recognised by the UN). From the outset, the majority of Papuans opposed Indonesian rule and they resented the way they had been denied their right to determine their political status and freely pursue their economic, social and cultural development.  In response to this opposition - both from armed groups and the general population - the Indonesian government resorted to violence and oppression. This is the background to the colonisation by Indonesians that threatens the existence of indigenous Papuans.