The Constitutional Court Decision Regarding Disputes of Legislative Election; from a Progressive Law Enforcement to the Recognition of Customary Law Communities in Democracy

Abstract

Decision of the Constitutional Court Number: 47-18 / PHPU. A / VII / 2009 Concerning Disputes over Election Results of the Regional Representative Council Members, Electoral District of Yahukimo Regency, Papua is a breakthrough step in a progressive law enforcement effort. The research method used a normative juridical and descriptive analysis The Constitutional Court views that elections in Yahukimo Regency are indeed not held based on the prevailing laws and regulations, but the Constitutional Court can understand and respect the cultural values that live in the typical Papuan community in holding general elections by means of a system of citizen agreement or acclamation or Noken system. This is a form of progressive law enforcement and at the same time recognition of indigenous peoples in democracy. In addition, through this ruling the Constitutional Court has recognized the existence and rights of indigenous peoples, because so far the court has often been unable to be relied upon to develop a legal breakthrough for the recognition of the existence and rights of indigenous peoples because it is still very much dominated by the legal-positivistic paradigm. The Noken system is still very strong because it is still widely applied by various cultural communities of indigenous Papuans. Deliberation in the Noken system is a discursive and contestation practice to determine political decisions, such as candidates or political parties in elections. The core of the Noken system is community participation through consultation and discussion in determining political choices collectively and this is the local wisdom that is applied by the Papuan people