Download Draft Perdasi on Law Commission

PAPUA LAW COMMISSION
Provisions of Otsus
Pasal 32
(1) Dalam rangka meningkatkan efektivitas pembentukan dan pelaksanaan hukum di Provinsi
Papua, dapat dibentuk Komisi Hukum Ad Hoc.
Penjelasan Pasal 32(1)
Pembentukan Komisi Hukum Ad Hoc dimaksudkan untuk membantu Gubernur, DPRP, dan
MRP dalam menyiapkan rancangan Perdasus dan Perdasi sebagai tindak lanjut pelaksanaan
Undang-undang ini.
(2) Komisi Hukum Ad Hoc sebagaimana dimaksud pada ayat (1) yang fungsi, tugas,
wewenang, bentuk dan susunan keanggotaannya diatur dengan Perdasi.
[Article 32
(1) In the context of increasing the effectiveness of the formation and implementation of law
in Papua Province, an Ad Hoc Law Commission may be established.
Explanation Article 32(1)
The establishment of the Ad Hoc Law Commission is intended to assist the Governor, the
DPRP and the MRP in preparing draft Perdasus and Perdasi as a further measure in the
implementation of this Statute.
(2) The functions, tasks, authorities, form and membership composition of the Ad Hoc Law
Commission referred to in clause (1) shall be stipulated with a Perdasi.]
Draft Perdasi on Law Commission
A draft Perdasi on the Law Commission has been prepared. Unless otherwise mentioned
references to Article numbers in the comments below are to the draft Perdasi.
Preamble and Definitions
The Preamble to the draft Perdasi says that the Law Commission has the task of membantu
Gubernur, DPRP, dan MRP dalam menyiapkan rancangan Perdasus dan Perdasi sebagai
tindak lanjut pelaksanaan UU No. 21/2001. This is the immediate task but the Law
Commission also has a more general task of meningkatkan efektivitas pembentukan dan
pelaksanaan hukum di Provinsi Papua as stipulated in Pasal 32(1) Otsus. This general
purpose should also be included in the Preamble in order to define the Law Commission’s
terms of reference more widely. This general purpose should also be included in the
definition of the Ad Hoc Law Commission in Article 1.
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Membership
Under Article 2 membership of the Law Commission shall come from academia, legal
practice and LSMs. All other membership requirements shall be stipulated with a Governor’s
Decree.
Suggestions:

Expand the possible range of members to include judges and Pegawai Negeri Sipil.
Transfer staff (i.e. secondment) from their existing employers to the Law Commission for
a certain period of time and then return them to their previous organisations.

Article 2 does not say who shall appoint members of the Law Commission. This should
be specified in the Perdasi. Presumably the Governor will be responsible for
appointments.

Appoint members for fixed terms (e.g. 3 or 4 years).
subsequent terms if their performance has been satisfactory.

Appoint one member as the Chairman of the Law Commission. The Chairman should
have responsibility for the day-to-day management of the Law Commission, including its
finances.

Members of the Law Commission should be prohibited from providing legal advice to
other bodies or individuals, in order to avoid conflicts of interest.
Allow re-appointment for
Status
Article 3 says that the position of the Ad Hoc Law Commission is as a supporting element
outside the Provincial Government. This is vague. Perhaps it should say that the Law
Commission “supports the Provincial Government but is independent of it.”
Powers and Functions
Articles 4 and 5 list the tasks and functions of the Ad Hoc Law Commission. These focus
largely on the immediate task of drafting Perdasus and Perdasi.
Suggestions:
Give the Law Commission the following additional powers and functions:

The Law Commission must keep the law of Papua Province under review in order to
ensure its systematic development and reform. Reform of the law itself must be
conducted by the Governor, the DPRP and the MRP. The Law Commission assists reform
by carrying out research and consultation and formulating proposals on law reform.

The preparation of Consolidation Regulations. Where the regulations in a particular
area, such as forestry, are scattered among a wide range of Undang-undang dan peraturan
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it may be appropriate to introduce a single ‘Consolidation’ Perdasus/Perdasi to bring
together and amalgamate into one Perdasus/Perdasi all the existing regulations on that
topic. Consolidation is very useful because it facilitates the understanding of regulations
and makes the law simpler and more accessible.

The preparation of Repeal Regulations. Where there are regulations whose purpose has
been completed or which are no longer relevant in practice, it may be appropriate to
introduce a ‘Repeal’ Perdasus/Perdasi to remove them from the Lembaran Negara RI atau
Lembaran Daerah Provinsi Papua. Repeal regulations could be made under the general
Perdasus/Perdasi making power in Article 4(3) of Otsus.

The preparation of Errors Regulations. The identification and elimination of legal
anomalies is a particularly important task. There are 2 types of statutory errors: errors
and conflicts in the regulation as enacted, and publication errors. For substantive
problems, in the regulation as enacted, a new ‘amending Perdasus/Perdasi’ will be
required to amend or replace the existing regulation. Non-substantive problems (e.g.
errors in publication such as spelling errors, repetition of clauses, inaccurate crossreferences, improper numbering or lettering) can be remedied through an ‘Errors
Regulation’ which could be made under the general Perdasus/Perdasi making power in
Article 4(3) of Otsus. An Errors Regulation is specifically intended to correct such
technical errors and could include corrections to a number of different Perdasus/Perdasi.

A law reform project can be initiated by the Law Commission itself or following
proposals from other organisations or individuals. The Governor, DPRP and MRP should
all be given a ‘reference power’ (exercisable separately) to instruct the Law Commission
to undertake research on a particular area of the law.

The Law Commission should have the power to employ consultants or outside experts on
particular subjects if the members of the Commission do not possess the necessary
expertise.

The Law Commission should collect information and conduct research into how other
countries deal with particular sectors of law. Internet resources should be used to achieve
this.

Authorise the Law Commission to establish links with other organisations that are
interested in law reform including central government departments, legal practitioners
associations, university law faculties, LSMs and Law Reform Commissions in overseas
States.
Adat Law
Otsus contains extensive provisions on adat rights, adat law, dan pengadilan adat (Pasal 43,
50 & 51). Given the importance of adat law in Papua the Law Commission should have an
obligation to consider and respect adat law when it is conducting all its other functions. The
Law Commission should also conduct specific research into adat law when necessary.
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Financial Accountability
Article 6 states that all required financing for the Law Commission should be budgeted for in
the APBD Papua Province.
Suggestion:
The Law Commission must submit an Annual Report to the Governor, DPRP and MRP. This
report should summarise:
 the Law Commission’s work over the previous year
 the proposed work program for the coming year
 a full financial statement with details of staffing costs and all other expenditure incurred.
Financing for the coming year should be conditional on the Law Commission having
provided good value for money in the previous year. The Chairman of the Law Commission
should be required to orally explain the Commission’s functions and work to the DPRP at
least once per year (as well as on request from the Governor or the DPRP). A reporting
mechanism such as this is essential to ensure accountability and transparency in the functions
of the Law Commission and to ensure the appropriate use of resources.
Laurence Sullivan
UNCEN
Jayapura
June 2003
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