The application was submitted to the Constitutional Court by a group of Papuan lawyers calling themselves the Coalition of Lawyers for Truth and Justice of the West Papuan People.
It might seem incongruous but the Indonesian Constitutional Court is being asked to adjudicate a case that challenges Indonesian sovereignty in Papua.
A coalition of Papuan lawyers, customary (adat) and political leaders, led by Yan Christian Warinsussy, are challenging the constitutionality of Law No. 12 of 1969, which established West Irian (now the provinces of Papua and West Papua) as an autonomous province of the Unitary Republic of Indonesia (NKRI).
A preliminary hearing of the case was held on 30 April.
The case is rooted in the conflicting Indonesian government and Papuan interpretations of the integration of Papua into Indonesia in the 1960s. Papuan rejection of Indonesian sovereignty has become a central tenet of Papuan nationalism and, for many Papuans, of the struggle for independence.
The 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. 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, who have named themselves the Coalition of Lawyers for Truth and Justice of the West Papuan People, 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 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.
A Dutch cartoon depicting the Papuan perspective on the Act of Free Choice.
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.
The New York Agreement and the Act of Free Choice were much debated, criticised and protested by Papuans in the 1960s. In 1969, two young Papuan activists, Clemens Runawery and Willem Zonggonau, even sought refuge in Australian-administered Papua New Guinea on the eve of the Act of Free Choice with the objective of presenting the Papuan case at the UN when the General Assembly discussed the Act.
At the request of then Indonesian Foreign Minister Adam Malik, who feared the Papuans would be credible spokesmen, the Australian administration in PNG ensured Runawery and Zonggonau remained on Manus Island and did not make it to New York.
During the Second Papuan People’s Congress in 2000 the history of the 1960s was systematically discussed and the legitimacy of the New York Agreement and the Act of Free Choice rejected.
Specifically, the Congress rejected the New York Agreement on the grounds that it was made without any Papuan representation. With respect to the Act of Free Choice, the Congress considered that it was conducted under coercion, intimidation, and military violence inconsistent with humanitarian principles. Accordingly, the Congress demanded that the UN revoke Resolution 2504 of 19 November 1969, which “noted” the Act of Free Choice, and so implicitly recognised Indonesian sovereignty over Papua.
The origins of the case before the Constitutional Court can be seen in the Papuan People’s Congress. It is no coincidence that several members of the Coalition that submitted the challenge were also influential figures in the Congress.
The 2000 Congress also discussed the Political Manifesto issued by the National Papuan Committee on 19 October 1961, which was the first instance when Papuan leaders asserted Papua’s right to independence. The Congress also noted President Soekarno’s command to prevent the formation of a Netherlands-sponsored “puppet” state in Papua. Paradoxically, this command in Soekarno’s famous Trikora speech of 19 December 1961 was taken by the Congress as evidence that a Papuan state existed.
The Congress also referred to a provision in the New York Agreement that stated the eligibility of all adults, males and females to participate in the act of self-determination, to be carried out in accordance with international practice. It rejected the Indonesian practice of musyawarah (consultation) involving 1,025 Papuans selected by the authorities. The Congress referenced confidential military instructions that the Act of Free Choice had to be unanimous, by whatever means necessary.
The UN involvement in Papua’s integration in Indonesia is not only reflected in the Congress’ demand that the UN revoke Resolution 2504 (which “noted” the results of the Act of Free Choice) but is also evident in the petition presented to the UN by the United Liberation Movement for West Papua (ULMWP) in January 2019.
The ULMWP petition, signed by 1.8 million Papuans, seeks to have the case of West Papua put on the agenda of the UN Decolonisation Committee and “…ensure that the right of self-determination denied West Papua in 1969 be respected by holding an internationally supervised vote in accordance with General Assembly Resolutions 1514 and 1541 (XV).”
Patrick Shaw, the Australian ambassador to the UN when the General Assembly debated the Act of Free Choice in 1969, reported to Canberra that the General Assembly had “noted” the results of the Act of Free Choice and the international community had recognised Indonesian sovereignty, but Shaw was not convinced the issue had been disposed of.
Shaw understood that the methods Indonesia had used to secure an unanimous result in the Act of Free Choice would continue to be a matter of controversy, as the debate in the General Assembly had shown.
Nevertheless, I doubt whether Shaw could have imagined that the issue would still be reverberating in the unlikely venue of Indonesia’s Constitutional Court half a century later.
