Democracy, Autonomy and the Constitutional Court
Democracy, Autonomy and the Constitutional Court
Indonesia's Police: The Problem of Deadly Force
Indonesia's Police: The Problem of Deadly Force
Op-Ed / Asia 4 minutes

Democracy, Autonomy and the Constitutional Court

Two dramas, separate but related, are playing out in Aceh and Papua, each questioning the authority of the Constitutional Court in the name of protecting autonomy. Driven by narrow political self-interest, each nevertheless raises serious questions about how much authority Indonesia is willing to grant these regions.

In Aceh, Partai Aceh, dominated by the old diaspora elite around former GAM prime minister Malik Mahmud, has rejected the December 2010 ruling by the Constitutional Court allowing independent candidates to contest local elections in Aceh. The court struck down a provision of the 2006 Law on the Governing of Aceh (LOGA) that permitted independent candidates to run only in the first election after the law went into force; thereafter they would have to be nominated by national or local parties -- which are only allowed in Aceh and nowhere else. It noted that since July 2007, independent candidates had been allowed across the country, and it would be violating the rights of citizens who lived in Aceh if they were to banned only there. 

In response, Partai Aceh leaders argue that the Constitutional Court has no authority in autonomous Aceh. It is a self-serving reaction: they were all deeply critical of the LOGA at the time it was passed and only grudgingly agreed to its enactment, arguing that it diluted or in some cases contradicted provisions of the 2005 Helsinki Memorandum of Understanding (MoU) that finally brought peace to Aceh. The MoU,  however, implied that independent candidates would be allowed in “2006 and thereafter”.  Now Partai Aceh is rallying behind the more restrictive wording of the LOGA, in an effort to prevent the current governor, Irwandi Yusuf, also from GAM, from running against their chosen candidate. 

A set of similar issues has arisen in Papua. Article 12(a) of Papua’s 2001 special autonomy law provided that the governor and vice-governor of Papua must be indigenous Papuans, verified as such by the Papuan People’s Council. Now Komarudin Watupun, head of the Indonesian Democratic Struggle Party in Papua, has  petitioned the Constitutional Court to strike down that clause. Born in the Kei islands in southeastern Maluku, he was deputy head of the Papuan  provincial parliament from 2004-2009 and wants to run for vice-governor this year. 

Ruben Magai, a political opponent of Komarudin’s in the provincial parliament, says that there are only two aspects of special autonomy that make Papua politically different from other provinces. One is the requirement that the top provincial office-holders be indigenous, defined as “people of Melanesian race belonging to one of the ethnic groups of Papua province or accepted and recognised as indigenous by Papuan customary leaders”. The other is the establishment of the Papuan People’s Council as a guardian of Papuan rights and cultural values. If the court strikes down Article 12(a)  -- on the grounds of discrimination, for example – there will be very little left that is “special” about Papua, says Magai.

The court has already ruled on an earlier challenge to the Papuan autonomy law, again motivated by self-interest. Article 7 says that the provincial parliament shall choose the governor and vice-governor. This was before a major electoral reform was passed in 2005, opening the door to direct elections at the provincial and sub-provincial levels.  John Ibo, the speaker of the provincial parliament, and two others petitioned the court to declare direct elections for governor unconstitutional because they violated the 2001 law – and as such allowed national laws to trump autonomy provisions. In early March 2011, the court ruled that direct elections did not undermine autonomy, among other things because the provision on  indigenousness still stood.  

In both the Aceh and Papua cases, the court has upheld democratic principles – greater political participation through independent candidates in the one, direct elections in the other – while at the same time recognising provisions in each area that are unique.  

But the self-interested and hypocritical critics of the court do raise an important question: what makes autonomous Aceh and Papua all that different from other provinces? Economically, they get vastly more money; politically, there is not much difference in their relationship with the central government. The question becomes important as various initiatives to address longstanding grievances in Papua take place: what areas of central authority might be gradually ceded? Setting procedures for local elections might be one, but it becomes a more difficult case to argue when it is a national institution that is defending democracy and local institutions that are trying to subvert it. 

In both regions, local activists bemoan the lack of tighter supervision by the National Audit Board or the Anti-Corruption Commission over how special autonomy funds earmarked by Jakarta for the two areas are spent. But how greater autonomy could accommodate stricter fiscal control from the centre is not clear.

The big question is whether there is any possibility for greater involvement of provincial authorities in decision-making on justice and security issues. Security is an area in both laws that is clearly reserved for the central government, although during the development of the LOGA, Acehnese civil society groups fought unsuccessfully to have this be restricted to “external security”.  Papuan demands for the complete withdrawal of military forces is a non-starter, but there might be room for more effective consultation on deployment of troops and removal of the burden, often informal, on local governments to pay for them.  Both autonomy laws paid lip service to justice and  accountability issues but there has been little movement to implement them.

In the meantime, those Acehnese and Papuans who are using the Constitutional Court as a scapegoat for their own electoral problems should find more constructive ways to argue the case for autonomy –and be a little more convincing about their commitment to democratic values.

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