Special Autonomy Regulations in Papua Province for the Realization of

Community Welfare

Endang Sulistyaningsih

, Isharyanto

and Hartiwiningsih

Doctoral Program at Universitas Sebelas Maret of Surakarta

Keywords:

Special Autonomy, Papua Province, Community Welfare.

Abstract:

The mandate of 1945 Constitution of the Republic of Indonesia which was formulated in Law Number 32

of 2004 about Regional Government regarding the implementation of autonomous regional governments and

special autonomy regions is not easy to realize. This is based on the conditions of an area such as geographical

conditions, natural wealth, level of soil fertility, total population, quality of population, and number of intellec-

tuals. We can take Bali as an example. Bali is an area that has many tourism places such as Jimbaran Beach,

Besakih Temple, Uluwatu Temple, Tanah Lot, Kuta Beach and others. The customs, religion and culture of

Bali are like a routine for Balinese. As a region that has various types of speciﬁcity, Bali actually wants its

area to get recognition as an area with special autonomy. However, this speciﬁcity has not been granted by

the Government of the Republic of Indonesia. The province of Papua, which is located on the eastern edge of

Indonesia, is the widest province with a wealthiness of natural resources. However, in reality, various policies

in centralized governance and development there, have not fully fulﬁlled the sense of justice, people’s welfare,

the realization of law enforcement and respect for human rights in Papua Province, especially for the Papuan.

This condition resulted in disparities in almost all sectors of life, especially in education, health, economy,

culture and social politics. Therefore, the government tried to overcome these problems by giving special

autonomy to the Papua Province. In 2001 the government passed Law Number 21 of 2001 concerning Special

Autonomy for the Province of Papua in order to implement equal welfare for the people there. Considering the

tendency of more and more regions to wish to become special autonomous regions or special regions, scientiﬁc

review with discussion of issues on how the basis, criteria and guidelines in granting special autonomy to an

area in Indonesia is very necessary. Normative legal research methods are used to answer this problem. The

approaches used are statute approach, historical approach, and comparative approach. After the legal material

is collected, it is analyzed qualitatively juridically. This research shows that in addition to being regulated in

Article 18B of the 1945 Constitution of the Republic of Indonesia, it can also be found in Law Number 32 of

2004 concerning Regional Government.

1 INTRODUCTION

The founders of the Indonesian have noble goals and

ideals in protecting the entire nation and homeland

of Indonesia, advancing public welfare, educating the

lives of the nation and participating in carrying out

world order based on independence, peace, and social

justice. In realizing these goals and ideals, a pattern

of government is needed as a system and instrument

for the state to implement it.

Indonesia is an archipelago. This geographical

condition affect the lives of people who live there to

create different cultures and customs. This diversity

sometimes become a problem for the state in carry-

ing out a centralized government, so it is necessary

to form a government in the regions as an extension

of the central government in realizing the ideals of

Indonesia which is a welfare for all Indonesian peo-

ple. The formation of government in the regions is

balanced with the authority (power) in managing the

household itself in accordance with the needs of each

region.

The long journey of regional autonomy based on

regulation in Indonesia began in the Dutch colonial

period. Decentralisatie Wet in 1903 and the 1922

Bestuars Hervormings Wet were the regulations ap-

plied at that time. During the New Order period, sev-

eral regulations concerning regional autonomy such

as Law Number 1 of 1945 on Regulation about the Po-

sition of Regional National Committees, Law Num-

Sulistyaningsih, E., Isharyanto, . and Hartiwiningsih, .

Special Autonomy Regulations in Papua Province for the Realization of CommunityWelfare.

DOI: 10.5220/0009882002410246

In Proceedings of the 2nd International Conference on Applied Science, Engineering and Social Sciences (ICASESS 2019), pages 241-246

ISBN: 978-989-758-452-7

241

ber 22 of 1948 on Stipulation of Basic Rules Regard-

ing Self-Governing in the regions that Regulating and

Managing their Own Household, Law Number 1 of

1957 on the Principles of Regional Government, Law

Number 18 of 1965 on the Principles of Regional

Government. During the New Order era, Law Num-

ber 5 of 1974 on the Principles of Regional Govern-

ment was born.

During the Reformation, various concepts of re-

gional autonomy began to keep up with the times.

Regulations that have been created include Law Num-

ber 22 of 1999 on Regional Government, Law Num-

ber 25 of 1999 on Financial Balance between the

Central and Regional Governments, Law No. 32 of

2004 on Regional Government, Law No. 33 of 2004

on Financial Balance between Central Government

and Regional Government, Perpu No. 3 of 2005 on

Amendments to Law No. 32 of 2004 on Regional

Government, Law No. 12 of 2008 on the second

amendment to Law No. 32 of 2004 on Regional Gov-

ernment, Law No. 23 of 2014 on Regional Govern-

ment, and Law No. 9 of 2015 on the Second Amend-

ment to Law No. 23 of 2014 on Regional Govern-

ment.

The series of changes in regulations on regional

autonomy aim to enable the relevant region to regu-

late and manage its own household affairs. This is

intended to further improve the effectiveness of gov-

ernance in the framework of service to the commu-

nity and the implementation of development that is

oriented towards improving the welfare of the com-

munity by paying attention to the interests and aspira-

tions that grow in the community.

The province of Papua which is geographically lo-

cated at the eastern end of the Indonesian territory is

the widest province with abundant natural resources.

However, various policies in centralistic governance

and development have not fully fulﬁlled the sense of

justice, people’s welfare, law enforcement and human

rights in the Papua Province. This condition made

a disparity in almost all sectors of life, especially in

education, health, economics, culture and social poli-

tics. For this issue, the government tried to overcome

these problems by providing policies about Special

Autonomy in Papua Province. In 2001 the govern-

ment passed Law Number 21 of 2001 on Special Au-

tonomy for the Province of Papua in order to imple-

ment equal welfare for the people there.

Other problems occur in Papua Province usually

are related to human rights violations. On December

8, 2014 there were murders of four (4) students in Pa-

niai, the persecution experienced by Blasius Simagay

at the 2014 Bade, Yeremias Kaipman’s foot shooting

in Merauke in 2015, the persecution of Xaverius Tam-

baip and Ronald Ambungun in Merauke in 2016, the

persecution of Oktovianus Beteop in Merauke 2017,

the murder of Isak Kua and the sexual abuse of a sister

from Isak Kua in November 2017 (Papua, 2017).

2 PROBLEM FORMULATION

Based on the background description, we can formu-

late a problem as follows: What is the implementation

of Papua Province special autonomy arrangement in

realizing the welfare of the Papuan people?.

3 REVIEW OF LITERATURE

State and law cannot be separated, as Hans Kelsen as-

serts that there is ”Identiﬁcation of State and Law”

(Kelsen, 2007), then Kelsen said that ”As a political

organization, the state is a legal order, but not all le-

gal orders are state.” (Kelsen, 2007) Indonesia stated

in its constitution that ”the State of Indonesia is a rule

of law.” (Article 1 paragraph (3) of the 1945 Consti-

tution of the Republic of Indonesia NRI amendments

3). In Indonesian literature there are several promi-

nent ﬁgures who write the notion of rule of law, They

are:

1. Mr. Muhammad Yamin deﬁnes the rule of law

as a state that carries out a government that is

not in accordance with the will of those who hold

power, but according to written rules made by the

people’s representative bodies which are legally

formed, in accordance with the principle “The

laws and not menshall govern” (Yamin, 1952).

2. Soediman Kartohadiprodjo, rule of law as a coun-

try where the fate and independence of the peo-

ple in it are guaranteed as well as possible by law

(Kartohadiprodjo, 1953).

3. Wirjono Prodjodikoro, the one who provides an

understanding of the rule of law as rulers and gov-

ernments as state administrators in carrying out

state duties bound to the applicable legal regula-

tions (Prodjodikoro, 1973).

4. Joeniarto, the rule of law as a country where the

actions of authorities must be limited by applica-

ble law (Joeniarto, 1981).

5. Sri Sumantri said that there were four elements of

the rule of law:

(a) The Government in carrying out its duties and

obligations must be based on law or legislation.

(b) There is a guarantee of human rights (citizens).

ICASESS 2019 - International Conference on Applied Science, Engineering and Social Science

242

(d) There is supervision from the judicial body

(rechter-lijke controle) (Soemantri, 1992).

3.1 Regional Autonomy and

Autonomous Regions

The 1945 Constitution of the Republic of Indonesia

stated that the Republic of Indonesia is a unitary state

(Rechstaat), not a state of power (Machstaat). This

means that the highest sovereignty or power in the

state is not based on the power alone but is based on

the law in the sense of the legal mind (Rechtsidee)

which contains the noble ideals of the Indonesian peo-

ple

The 1945 Constitution of the Republic of In-

donesia afﬁrms that regional government is organized

based on the principle of deliberation or democracy.

This means that administratively the implementation

of government is carried out by making a decen-

tralization policy which then creates autonomous re-

gional government units. This is labeled as regional

governments that regulate and manage their affairs

based on the aspirations and interests of the local

community (Sukriono, 2013).

Autonomy comes from Greek, auto which means

self and nomous which means law or regulation,

autonomy in the original sense is the legal self-

sufﬁciency of social body and its actual indepen-

dence. So, there are two essential characteristics

of autonomy, legal self sufﬁciency and actual inde-

pendence. In relation to politics or government, re-

gional autonomy means self-government or the con-

dition of living under one’s own laws. So regional

autonomy is an area that has a self-government le-

gal self-sufﬁciency that is regulated and managed by

own laws. Therefore, autonomy focuses more on as-

pirations than conditions. Autonomy contain several

meanings as follows:

1. Autonomy is a condition or characteristic for

”not” controlled by other parties or external

forces.

2. Autonomy is a form of ”self-government”, it has

the right to govern or self-determine

3. The government itself is respected, is recognized

and guaranteed, there is no control by other par-

ties towards regional functions (local or internal

affair) or against a minority of a nation.

4. The autonomous government has sufﬁcient in-

come to determine its own destiny and fulﬁll the

welfare of (Shiddiq, 2003). For the principle of

autonomy and the implementation of decentral-

ization in the relations between the central gov-

ernment and regional governments, M. Yamin

(Mahfud, 2012) wrote that“ a democratic consti-

tution arrangement requires solving power of gov-

ernment in its own central part and also requires

the division of power between main and regions

government. The principle of democracy and the

decentralization of government power is in oppo-

sition to the principle of wanting to gather every-

thing at the center of government.”

What is said by M. Yamin concludes that regional

autonomy and decentralization are part of countries

that embrace democracy. Long before Indonesia’s

independence, M. Hatta (Mahfud, 2012) also said

that “According to the basic of public sovereignty,

the right of the people to determine their fate is not

only at the top of the government, but also at each

place, city, village and region. With such circum-

stances, each section or class of people gets an au-

tonomy (making and carrying out its own regulations)

and zelbestuur (carrying out the regulations made by

the higher Council). Such conditions are very impor-

tant, because the needs of each place in one country

are not the same, but different.” Therefore, autonomy

must be one of the joints of a democratic government

structure. This means that in democracies, local gov-

ernments are required to obtain autonomous rights.

The existence of regional government also improves

the freedom of the regional as a characteristic of a

democratic state (Mahfud, 2012)).

The term autonomy means independence but not

as independent state, so the top government gives

freedom or independence to the autonomous region as

an accountability. The accountability itself has two el-

ements. First, is an assignment to be carried out. Sec-

ond, giving trust to the government in the region in the

form of authority to think and determine how to com-

plete the task. Thus, it is to encourage or stimulate

the region to try to develop their own abilities that can

generate auto-activities and enhance their self-esteem

at its best (Mahfud, 2012).

Autonomy is a given freedom for a government

to take care their own region without neglecting the

position of the regional government towards the cen-

tral government to carry out the functions assigned

to them. Therefore, efforts to build a balance must

be considered in the context of the power relations

between the central and the regions (Mahfud, 2012).

This means that regions must be viewed in two posi-

tions, as regional organs to implement autonomy and

as agents of the central government to conduct central

affairs in the regions. Regional autonomy is also de-

ﬁned as the authority of autonomous regions to reg-

ulate and manage the interests of local communities

according to their own initiative based on the aspira-

Special Autonomy Regulations in Papua Province for the Realization of CommunityWelfare

243

tions of the community in accordance with the legis-

lation (Widjaja, 2002).

Regional autonomy is an effort to realize democ-

ratization where people’s aspirations or interests from

each region can be accommodated properly. Regional

autonomy allows the local wisdom of each region

to walk in harmony with the initiatives and of the

people in the region. Framework of democratiza-

tion and limitation of power is known as the princi-

ple of separation of power. The most popular theory

about this problem is the idea of separation of state

power developed by a French scholar named Mon-

tesquieu. According to him, state power must be sepa-

rated into legislative, executive and judicial functions

(Busrizalti, 2013).

Linked to the Montesquieu theory, regional auton-

omy is a mechanism to regulate the state power that

is distributed vertically in a ”top-down” relationship.

As it is known that the separation of powers and the

division of power are both a concept of separation of

power. Academically, it can be distinguished into nar-

row and broad sense. In a broad sense, the concept

of separation of powers also includes the notion of

power division commonly referred as the ”division of

power”. Separation of power is the concept of hor-

izontal power relations, while the power sharing is

vertical. Horizontally, state power can be divided into

several branches of power that are linked to the func-

tions of certain state institutions, such as legislative,

executive and judicial branches. In the concept of

power distribution (distribution of power or division

of power) the power of the state is divided vertically

in a ”top-down” relationship” (Busrizalti, 2013). Re-

gional autonomy in the context of democracy aims to

create checks and balances in the political system.

3.2 Welfare State

Welfare State as an ideal model of development fo-

cused on improving welfare through giving a more

important role to the state in providing universal and

comprehensive social services to its citizens. So, the

focus of the welfare state system is to create a sys-

tem of social protection that is institutionalized for

every citizen as an illustration of the citizens’ rights

and state obligations (Suharto, 2007).

Welfare state can be described as the inﬂuence of

human desire of a security, peace, and prosperity. In

the 1945 Constitution of the Republic of Indonesia,

social welfare becomes a special title of CHAPTER

XIV which includes Article 33 on the economic sys-

tem and Article 34 concerning the state’s concern for

the weak groups (the poor and neglected children) and

the social security system. This means that Indone-

sia is a country that adheres to the welfare state with

a model of Participatory Welfare State which in the

social work literature is known as Welfare Pluralism.

This model emphasizes that the state must continue to

take part in handling social problems and the imple-

mentation of social security.

3.3 Theory of Legislation

Good legislation must have a foundation in its for-

mation, according to Bagir Manan (Manan, 1992) the

foundation in the preparation of legislation are: First,

the juridical foundation (juridische gelding); Second,

the sociological foundation (sosiologische gelding);

and Third, philosophical foundation. Jazim Hamidi

also said that, good legislation must meet the follow-

ing requirements: Philosophical foundation (ﬁlsoﬁs-

che grondslag); sociological foundation (sociologis-

che grandslag), juridical basis (rechtsground), politi-

cal basis, ecological, medical, economic, etc (Hamidi

and Sinaga, 2005).

Philosophical foundation here is that the law al-

ways contains ideal norms by a society for an ide-

als state of life. Sociological foundation means ev-

ery legal norm as outlined in the law must reﬂect the

demands of the community’s needs for legal norms

that are in accordance with the reality of public legal

awareness. Political foundation means that the con-

stitutional referral system must also be described ac-

cording to the ideals and basic norms contained in the

1945 Constitution of the Republic of Indonesia as a

source of basic policies or legal politics to establish

the relevant law. Juridical foundation, in the formula-

tion of each law, must be placed on the ”Considering”

consideration section.

4 DISCUSSION

The 1945 Constitution of the Republic of Indonesia

afﬁrms that regional government is held based on the

principle of deliberation or democracy. This means

that administratively the implementation of govern-

ment is carried out by making a decentralization pol-

icy. Therefore, an autonomous regional government

unit was born, it is the regional government that reg-

ulates and manages its affairs based on the aspira-

tions and interests of the local community (Sukriono,

2013).

The formulation of regional government was in

accordance with the mandate of Article 18 of the 1945

Constitution of the Republic of Indonesia, it has pro-

duced many other laws and regulations in regional

governance, including Law No. 1 of 1945, Law No.

ICASESS 2019 - International Conference on Applied Science, Engineering and Social Science

244

22 of 1948, Law No. 1 of 1957, Presidential Decree

Number 6 Year 1959, Law Number 18 of 1965, Law

Number 5 of 1974, Law Number 22 of 1999 and Law

Number 32 of 2004 (Sunarno, 2012).

In organizing regional autonomy, the regional

government has rights as stipulated in Article 21 of

Law Number 32 of 2004 on Regional Government,

those are:

a Arrange and manage their own government af-

fairs;

b Choosing regional leaders;

c Choosing regional apparatus;

d Managing regional wealth;

e Collecting local taxes and regional retribution;

f Get proﬁt sharing from the management of natural

resources and other resources in the area;

g Get other legitimate sources of income;

h Obtain other rights stipulated in the legislation.

The regional obligations in the implementation of

regional autonomy are regulated in Article 22 of Law

Number 32 of 2004 on Regional Government:

a Protect the community, maintain the unity, har-

mony and integrity of the Republic of Indonesia;

b Improve the quality of people’s lives;

c Develop a democratic life;

d Realize justice and equity;

e Improve basic education services;

f Provide health care facilities;

g Provide appropriate social facilities and public fa-

cilities;

h Develop a social security system;

i Develop regional planning;

j Develop productive resources in the area;

k Preserve the environment;

l Manage population administration;

m Preserve socio-cultural values;

n Establish and establish laws and regulations in ac-

cordance with their authority;

o Other obligations stipulated in the legislation.

The rights and obligations of the region are real-

ized in the form of regional government work plans.

They are translated into regional revenues, expendi-

tures and ﬁnances that are managed efﬁciently, effec-

tively, transparently, accountably in the regional ﬁ-

nancial management system.

Law Number 21 of 2001 Special Autonomy for

Papua Province is a rule or policy given by the Cen-

tral Government as an effort to improve its develop-

ment in various aspects such as economic, education,

health and infrastructure. Philosophically, the Special

Autonomy Law is made as a step to equalize Papua

with other regions in Indonesia It is a protection mea-

sure for the basic rights of indigenous Papuans whose

basic rights are neglected and marginalized since they

have joined Republic of Indonesia.

The result of this stipulation of Special Autonomy

is a different treatment given by the Government to

the Papua Province. This means that there are fun-

damental things that only apply in the Province of

Papua and do not apply in other provinces in Indone-

sia, along with that there are also things that apply in

other areas that are not enforced in Papua Province.

However, the implementation of Special Auton-

omy also faced some obstacles and disruptions such

as, the slow issuance of Government Regulations of

the Special Autonomy Law (PP No. 54 of 2004 on the

Establishment of the Papuan People’s Assembly; the

form of Perdasi and Perdasus: weak consistency over

protection and enforcement of Human Rights (HAM);

conﬂicts in the division of West Irian Jaya province,

Issuance of Presidential Instruction No. 1 of 2003. In

addition, there are limitations and weakness of human

resources (HR) of Papua in responding to the bigger

authority and responsibility as contained in the Spe-

cial Autonomy Law.

5 CLOSING

The making of regional autonomy policy in the form

of Special Autonomy is an effort to develop regional

autonomy in the framework of the constitution guar-

anteed by Article 18 paragraph (1) of the 1945 Con-

stitution of the Republic of Indonesia, mainly in gov-

ernment units that are special. Thus, if a synergy is

created between normative ideals as contained in the

substance of the Special Autonomy Law with the real

attitude and consistency of both the central govern-

ment and the Papuan government and all components

of the Papuan community, then undoubtedly Special

Autonomy can be a solution and the best alternative

policy in realizing all Papuan’s desires in Republic of

Indonesia.

Special Autonomy Regulations in Papua Province for the Realization of CommunityWelfare

245

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