2) West Papuan legal challenge to Act of Free Choice
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1) Lawyers, local leaders file for judicial review of Papuan referendum
News Desk The Jakarta Post
Jakarta / Mon, April 15, 2019 / 05:04 pm
Representatives of the Coalition of Advocates for Truth and Justice for Papua file a petition for a judicial review of Law No. 12/1969 on the establishment of West Irian autonomous province and autonomous regencies in West Irian province at the Constitutional Court on Friday. (JP/Dhoni Setiawan)
Dozens of lawyers, academics, local Papuan leaders, churches and women’s organizations under the Coalition of Advocates for Truth and Justice in Papua filed an application for a judicial review of the 1969 Law No. 12 on the establishment of the West Irian autonomous province and autonomous regencies in West Irian province at the Constitutional Court on Friday.
West Irian was the former name of the Indonesian part of Papua Island.
The 1969 law, also known as Pepera, which was the legal basis of Papua’s integration with Indonesia after Dutch colonization, has been considered controversial for more than 60 years.
Yan Christian Warinussy, one of lawyers and the coalition’s coordinator, said the coalition filed for the review because there was evidence that the Pepera contradicted the 1962 New York Agreement, which was the basis of the Pepera. "The New York Agreement said all adults in Papua had the right to self-determination and the referendum had to be conducted under international principles of practice," Warinussy said. "The fact was, only 1,025 of 800,000 Papuans voted," he said.
He said before the referendum, military operations had compelled Papuans to opt to integrate with Indonesia. "Therefore, we believe that paragraphs 7 and 8 in the law's explanation that the Pepera was a manifestation of the people's aspirations made with full awareness also contradicted Article 28I of the 1945 Constitution, which protects the rights of citizens from torture and guarantees freedom to express one's thoughts and follow their conscience," the coalition said in a release on Friday.
He said the idea of challenging the Pepera through a judicial review in a court of law started in 2010.
“Many crimes against humanity happened [during the Papua’s integration with Indonesia]. That’s why we want to file a review,” he told the reporters after filing the application.
The coalition highlighted that the controversy surrounding the Pepera was at the heart of prolonged conflict in Papua.
Laus DC Rumayom, international relations lecturer at state Cendrawasih University, who is also one of the petitioners, said the application was also expected to encourage the public to acknowledge history and democracy in the country.
“Conflicts in Papua are not just about mining and illegal logging, but also about history,” he said.
Laus said it was the first time Papuans had officially challenged the law.
“We hope that [this application] can create public dialogue about the country’s law. Papua is one of regions that are victims of history,” he added.
Many prodemocracy activists have long urged the government to conduct a fair referendum after the 1969 vote on independence in which only a handful of locals were allowed to vote. Papua self-determination activists called the referendum a sham.
Meanwhile, Yan Pieter Yarangga, the head of the Papua Customary Council and one of the petitioners, expressed gratitude after the coalition filed the application.
“We want the government to take this application into consideration,” he said, adding that human rights violations were still happening in Papua despite regulations.
The 50th anniversary of the Pepera will be marked in August.
A women’s rights activist, Fien Jarangga, a coordinator of the Tiki Community Women’s Network in Papua, said the judicial review was feasible, despite the debate over whether the Pepera was a sham or not. She said the step supported the indigenous Papuan community in its international fight to get its rights upheld. "Papuans have to take a legal avenue in Indonesia to find the loopholes in the Indonesian laws [regarding indigenous Papuan community rights] before we can move onto an international tribunal," she said.
"So we don't have to get a favorable decision in the judicial review, but the process might uncover the weaknesses in the Pepera process because the legal basis back then in Indonesia may have been limited," she said on Friday. (das)
Victor Mambor contributed to this report from Jayapura, Papua.
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2) West Papuan legal challenge to Act of Free Choice
Johnny Blades, RNZ Pacific Journalist
A move by West Papuans to challenge 1969's controversial Act of Free Choice referendum has found its way to Indonesia's Constitutional Court.
Coalition of Lawyers for Truth and Justice of West Papuan People hold a press conference in Jakarta, Indonesia. Photo: Supplied
The Coalition of Lawyers for Truth and Justice of West Papuan People has applied for a judicial review of the process by which the former Dutch New Guinea was integrated into Indonesia.
It submitted its application to the Constitutional Court in Jakarta on behalf of Papuan customary representatives. They claim West Papuans' rights weren't respected during 1969's controversial Act of Free Choice referendum.
The plaintiffs argue their legal challenge is in line with the spirit of Indonesia's Law of Special Autonomy for Papua Province, granted in 2001. In particular, Article 46 of the Law stipulates for "clarification of the history of Papua" as part of a general empowerment of West Papuans and their rights as citizens.
A member of the team which drafted the Law, Agus Sumule, said assertions that the referendum reflected the wishes of the people must be tested.
"The lawyers found it's totally different, that it's against human rights, which is definitely against the Fourth Amendment of the Indonesian constitution, and therefore it has to be reviewed. It has to be annulled, it has to be cancelled," he said.
Indonesians go to the polls for elections this Wednesday to vote for the country's president and legislative assembly on the same day for the first time.
While many West Papuans would be asserting their right to vote, others plan to boycott the polls in protest as part of their long-running independence struggle.
At the heart of the struggle is a core grievance related to events which followed 1962's New York Agreement between the Netherlands and Indonesia. The agreement was for an act of self-determination to be carried out in Papua in accordance with international practice.
The 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.
"Everything was done properly, and conducted under the supervisions," Indonesia's ambassador to New Zealand Tantowi Yahya told RNZ Pacific in 2017.
"During the General Assembly of the United Nations, none of the members of the UN said no to the process that was happening in the Pepera."
However, the democratic structures of Indonesia provide for accountability on constitutional obligations to basic rights. Dr Sumule said it was clear that when it came to the Act of Free Choice the wishes of the people were not respected.
"There was intimidation during that process. People were killed. So it's very much against the spirit of the New York Agreement, which, as we know, is to provide the open and peaceful and lawful opportunity for the people in Papua to decide," he said.
The application for a judicial review, Dr Sumule explained, was a peaceful and lawful way of referring the issue to a most respected institution of the republic, where those with the best understanding of constitutional issues can discuss and debate it.
"We believe this should be seen as a way forward where there's a very important issue which has been really the reason for (the) antagonistic relationship between Jakarta and Papua.
"I believe that there are people in Indonesia who would also like to see this very important issue to be properly discussed."
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