Tag Archives: Indonesian Criminal Code

YCW: Will Nekenem and his colleagues be given clemency?

From Yan Christian Warinussy, Executive-Director of LP3BH

12 July 2015

On May 20th this year, a group young people, students and activists from the National Committee of West Papua (KNPB) took part in a peaceful action during which several people delivered speeches. However, the group was dispersed by the local security forces, the Manokwari police.

Following this action, about one hundred activists were taken away by members of the police force and Brimob who had arrived there in several trucks and who drove them to the headquarters of Brimob.

Four days later, four of those who had taken part in the action
were arrested, Alexander Nekenem, Yoram Magai, Mikael Aso and Narko Murib, for allegedly committing a crime as well as being accused of incitement, as provided for in Articles 160 and 55 of the Criminal Code.

The article reads as follows: ‘Whosoever, in public or in writing
is involved in incitement, or is involved in an act of violence
against the authorities … shall be taken into custody and sentenced to up to six years or ordered to pay a fine of up to one thousand, five hundred rupiahs.’

It would appear that these four people had been taken into custody because of their involvement in a peaceful action on May 20th and for being connected with the United Liberation Movement for West Papua (ULMWP).

It should be noted that during the meeting of the MSG (Melanesian
Spearhead Group) which took place on 25th and 26th June, the ULMWP was accepted by the Melanesian Spearhead Group (MSG) as an observer.

Indonesia was also accepted as an observer. The Papuans were accepted as associate members from five provinces, Papua, West Papua, Maluku, North Maluku and East Nusa Tenggara.

From now on, the ULMWP will always be invited to attend meetings
convened by the MSG.

So surely we should ask, who is it who has acted in violation of
the law? Was it Alexander and his colleagues who responded to the move to recognise the ULMWP as an organisation which has unified the indigenous people of West Papua and will become a permanent member of the MSG?

As a lawyer and Defender of Basic Human Rights, I would like to point out that the ULMWP has been officially accepted as a member of the MSG, an organisation that was set up to unify the struggle of three initiating organisations, namely the National Parliament of West Papua, the Federal Republic of West Papua and the West Papua Coalition for Liberation in December 2014 in Vanuatu.

On 3 July 2015, Abnel Hegemur and his colleagues were organising a joint service at the Secretariat of the ULMWP to celebrate the fact that they had been accepted as observer members of the MSG at a meeting in Honiara, the Republic of the Solomon Island States held from 18-26 June 2015 in Honiara.

They were subsequently arrested and taken to the headquarters of
the police command in Fak Fak and questioned, after which they were accused of having committed an act of subversion as stipulated in Articles 108 and 110 of the Criminal Code. This was subsequently changed to Article 510, according to which anyone who organises an event to march together in a public area may be charged.

Does this mean that any Christian or Indigenous Papuan who wishes
to hold a service must first obtain a permit from the police? If so, what about the guarantee regarding joint ventures stipulated in the 1945 Constitution.

This would suggest that all judges in the Land of Papua should pay close attention to such matters as this, when anything is organised by Indigenous Papuan People. And what about the decision of the President of the Republic of Indonesia, Ir. H. Joko Widido who recently granted clemency to five political prisoners who were being held at the prison in Abepura-Jayapura. as well as the intention to free almost one hundred political prisoners being held in various prisons in the provinces of West Papua, Papua and Maluku?

Surely this would mean that Alexander Nekemen, Michael Aso, Yoram Magai and Narko Murib should also be granted clemency by President Jokowi.  Or they should be granted abolition in accordance with the commitment of President Jokowi, as a move to resolve once and for all the problems in the Land of Papua and turn it into a Land of Peace.

Peace!

Yan Christian Warrinusy is the Executive Director of the LP3BH – Institute for Research, Analysis and Development for Legal Aid, and recipient of the John Humphrey Freedom Award in Canada in 2005.

Translated by Carmel Budiardjo

Leading Indonesian NGO Condemns the continued use of Treason Charges against Papuans

by ALDP (Alliance  for Democracy in Papua)

Opinion/Statement

September  6, 2013

68 YEARS SINCE INDONESIA BECAME INDEPENDENT, TREASON [MAKAR] IS STILL BEING USED AGAINST PAPUANS.

The  Indonesian people recently celebrated the 68th anniversary of their independence on 17 August 2013.   What lessons can we draw from this anniversary in order to resolve problems faced by our people who experience so many problems in various parts of the country,  especially in regions where there is conflict such as Aceh and Papua?

Especially with regard to Papua, it is not acceptable for the articles about treason  to be used any more.   This is because for a country that is now based on democratic principles, it clearly violates these principles.  Furthermore, the law on treason which is still included in Indonesia’s Criminal Code is no longer used in the country where it originated [The Netherlands].  The continued use of these articles will only widen the gap between Papua and Indonesia and lead to acts of violence because of  feelings of revenge about history, or may cause friction between different groups of people.

These articles on treason are always held ready for use against activists or anyone who demands justice and the right to express their views in public, in accordance  with the right to freedom of expression.

The treason articles were first included in the Criminal Code in the 19th century. The Dutch Minister of Justice adamantly refused a move to include an article on treason which could be applicable to anyone.  He said:  ‘These articles should be enacted to meet the needs of a colonial territory and should not be applicable to  European countries.’

The articles on treason were adopted by the Dutch colonial government and were based on Article 124 of the British Indian Penal Code.  In 1915. The Indian Supreme Court and the East Punjab High Court declared that they were invalid because they contradicted the Indian Constitution which upheld the principle of freedom of expression.  In The Netherlands, these articles were regarded as being undemocratic.   However, the Dutch East Indies government made use of the articles in their colonial territories.

In this day and age, several decades after Indonesia declared its independence, these articles should no longer be applicable to citizens of the country, including Papuans, bearing in mind that Papua is not a colony of Indonesia. {Eds – This statement does not reflect WPM’s position}

In judicial terms, treason is a unilateral act against the authorities, for the purpose of ensuring that part of its territory falls into enemy hands or should be ceded in order to become part of another state.

The crime of treason  is regulated under Articles 104 to 129 of the Criminal Code – KUHP.  Treason is also classified as a crime against the president and vice-president [the head of state and/or the head of a rival state], against the legitimate government or against government agencies, being involved in espionage on behalf of the enemy, resistance to government officials, rebellion and other activities that are directed against state interests.  Treason is also committed against the government (the head of state and his/her deputy) for the main purpose being to render an individual incapable of governing, to annihilate the country’s independence, to overthrow the government, to change the system of governance by unlawful means, to undermine state sovereignty by  separating part of the country on behalf of another country, or to create an independent state.

The crimes of spreading hatred or incitement are dealt with in Articles  154, 155 and 156 of the Criminal Code. These articles state that ‘public statements which express feelings of hostility or are offensive to the government’ are regarded as crimes as well as public statements which support such sentiments. These articles are punishable for up seven years.

During the era of the late President Soeharto, these articles were frequently used to restrict freedom of expression. They were also used against political opponents, critics, students and human rights defenders in order to silence them. The people in power used these articles like rubber, something which can be pulled in any direction as a way of restricting the right to freedom of expression.

Nowadays, in {after} the era of ‘reformasi’, the articles are frequently used to bring charges against pro-democracy activists.  In Papua. They are used in every way possible against pro-democracy activists on occasions when it has not been possible to charge them for involvement in treasonous activities.

In a report published by Human Rights Watch (HRW) in 2007, ‘Protest and the Punishment of Political Prisoners in Papua’ , Indonesia was mentioned as one of the countries where exceptions and restrictions apply that are in conflict with the basic principle of freedom of opinion. HRW drew attention to the many cases of people being arrested and imprisoned simply because they took part in peaceful protest or for peacefully raising flags. This is in violation of international law on basic human rights.  Indonesian courts frequently apply the law on ‘spreading hatred’ or ‘incitement’  towards people who are exercising their right to freedom of expression. These clauses also violate the spirit of the Indonesian Constitution which was adopted when the country became independent in 1945.

There is a tendency in Papua for a court, having been unable to prove that treason was committed, to use the crime of incitement. The articles about treason  were used when Indonesia was a Dutch colony to charge individuals or groups of people with rebellion. But these days, ‘the articles on treason are used against the civilian population when they publicly express their aspirations,’ said Harry Maturbongs, the former co-ordinator of KontraS.

A lawyer in Papua, Gustaf Kawer, said that the tendency of courts and prosecutors to use the charge of incitement when they are unable to prove that treason has been committed, is a sign that the court is apprehensive and wants to avoid the possibility of people who have been charged making counter-charges against the state, where the case against them had not be proven.

It is often the case that pro-peace Papuan activists who are brought before the courts are charged on several counts for a variety of misdemeanours.  In the trial of Buchtar Tabuni in 2010, he was charged under five articles.  Article 106 and Article 110, as well as Article 160, Article 212 and Article 218, for treason, for incitement and for disobeying an order by an official.  Another group of people were sentenced and convicted for treason. Forkorus Yaboisembut and his colleagues were arrested by the police for organising the Third Papuan People’s Congress on 19 October, 2011.  [After formally declaring the establishment of an independent Federated State of Papua] ‘President’ Forkorus, along with his Prime Minister Edison G. Waromi, were arrested with others who were involved in organising the Congress, Dominikus Surabut, Agus M. Sananay Kraar and Selfius Bobii. They were charged by a team of prosecutors headed by Yulius D.

Even today In 2013, the treason article continues to be used. A group of men were recently charged. They are Klemens Kodimko (71 years old), Obeth Kamesrar (68 years old), Antonius Saruf (62 years old), Obaja Kamesrar (52 years old), Yordan Magablo (42 years old), Hengki Mangamis (39 years ) and Isak Klebin (52 years old) . They were charged at the first hearing of their trial in a court in Sorong on Monday, 19 August 2013.

A spokesman for the police in Papua, I Gede Sumerta Jaya, said that the men were charged with treason because they are leaders of the OPM (Organisasi Papua Merdeka) or of radical groups that are active planning or speaking out in favour of resistance to the legitimate government.

Earlier this year, on 30 April, hundreds of people gathered at a posko  [a small construction] which they had  just set up. They sang together as they gathered there on 30 April to make preparations to celebrate 1 May on the following day.  While they were singing, shooting was heard aimed in the direction of the posko. The shots came from some people aboard an avanza vehicle with darkened windows, accompanied by a police patrol vehicle.

[Translated by TAPOL]

Human Rights Workers: Those who shot Tabuni must be brought to justice

Mako Tabuni Shot Dead
Mako Tabuni Shot Dead (Photo credit: AK Rockefeller)

JUBI, 25 June 2012

According to the Network for Law Enforcement and Human Rights in the central highlands, JAPHPT, the Criminal Code requires that those who were responsible for shooting Mako Tabuni should be brought to justice.

If the police believed that Tabuni was the mastermind of all the shootings, they should have arrested him and produced evidence of this. The chairman of the JAPHPT,  Theo Hesegem, said that the way the police had handled the arrest, along with the shooting of Tabuni, had eliminated any evidence  they might have had about what Tabuni was carrying.

They have also, in the process, demonised the Papuan people and damaged Indonesia’s reputation in the international community.

Indonesia is a state that recognises the rule of law and should act in accordance with the Criminal Code regarding the person who shot Tabuni.

Meanwhile, the chief of police  of Jayapura City, AKB Alfred Papare now admits that its reputation has been damaged by the shooting of Tabuni. He went on to say however that the police  had acted in accordance with police procedures because of reports that the victim was in possession of a firearm.

Translated by TAPOL

KONTRAS: Torture Increased Drastically! A Report on the Practice of Torture in Indonesia

http://www.kontras.org/eng/index.php?hal=siaran_pers&id=160

PRESS RELEASE:

KONTRAS
Torture Increased Drastically!
A Report on the Practice of Torture in Indonesia
International Day in Support of Victims of Torture 2012

Commemorating the International Day in Support of Victims of Torture (June 26), the Commission for the Disappeared and Victims of Violence (KontraS) released its annual report entitled, “Torture Increased Drastically!” This report is excerpted from the various incidents of torture that have raised the public attention (both nationally and internationally) from July 2011 to June 2012, particularly the elaboration of numerous reports on complaints of torture that were directly handled by KontraS. This report is KontraS evaluation of the situation of torture that continues to use the assessment framework used by the Committee against Torture and the mechanisms under the UN Human Rights Council (either by the Special Rapporteur Against Torture as well as through the Second Cycle of Universal Periodic Review session on May 23 2012).

Contrast notes that there are numerous state policies that facilitate the practice of torture. Although in fact, the State should be able to accommodate the policies preventing or reducing the occurrence of torture. These issues include:

– The absence of criminalization of crimes of torture and punishment for the perpetrators because there is a revision of the Criminal Code and Criminal Procedure Code has been entered in the program even though the national legislation (Prolegnas) 2010-2014

– Continue maintenance of the death penalty policy. Abolition of the death penalty in Indonesia should be done with the goal of doing a moratorium on executions that had been imposed de facto in the last 4 years. However, in the last year there were six new death row decided by the court
– Policy caning in Aceh. Caning is a form of cruel punishment (corporal punishment) is not in accordance with the Convention against Torture and the International Covenant on Civil and Political Rights. In the period June 2011-June 2012 there were 47 people sentenced to caning in Aceh.

KontraS notes several state policies that facilitate the practice of torture. Although in fact, the State should also be able to accommodate the policies that should prevent or reduce the occurrence of torture. These issues include:

– The absence of criminalization of crimes of torture and punishment for the perpetrators due to the absence of a revision of the Criminal Code and Penal Code, despite both codes having been included within the national legislation program (Prolegnas) 2010-2014

– The maintenance of the death penalty policy. Abolition of the death penalty in Indonesia should be done with the goal of doing a moratorium on executions that had been imposed de facto in the last 4 years. However, within the last year there were six new death rows decided by the court.

– Policy caning in Aceh. Caning is a form of cruel punishment (corporal punishment) and is not in accordance with the Convention against Torture and the International Covenant on Civil and Political Rights. Within the period June 2011-June 2012 there were 47 people sentenced to caning in Aceh.

– Still relying on internal accountability mechanisms to prosecute acts of torture. The practice of torture is still an issue of impunity because the punishment mechanism is still very dependent on the internal mechanism, both within the Military and the Police that as a cause has negated the deterrent effect. It is therefore important to ensure the existence of various state institutions that have the authority to conduct an independent investigation (independent external oversight body) against the allegations of torture and begin to identify the names of the perpetrators held responsible.

– Ratification of the State Intelligence Law is deemed potential to open room for the use of torture, particulatly Law on National Intelligence No.17/2011. This Act directly authorizes a special form of extracting information to the intelligence apparatus. Extracting information will be applied to the targets associated with the interests and activities that threaten national security, especially terrorism and separatism, which is known widely growing in several regions in Indonesia.

Based on KontraS’s monitoring, for the period of July 2011 – June 2012, there has been a tremendous surge in allegations of torture. In the period July 2010 – June 2011, KontraS noted that there were 28 events alleged torture with a number of victims of 49 people, while during the period of July 2011 – June 2012 there were 86 allegations of torture with the number of cases of 243 victims. Meanwhile, for the categories of alleged perpetrators of this period a number of police officers were alleged for 14 cases, 60 cases by military officers and prison guards as much as 12 cases. For this period, there is a region where the alleged torture occurred relatively large that is the area of ​​Papua. For the past year, the security situation and the intensity of violence in Papua are very problematic.

Table of Torture
June 2010-July 2011 and June 2011-July 2012
Perpetrator
Year 2011
Year 2012
Victims
Cases
Victims
Cases
Police
31
21
118
60
Military
18
7
64
14
Warden
61
12
49
28
243
86

From the table above, several hypotheses that can be taken are: First, there has been a number of victims and the alleged use of torture that is so prominent in Papua when compared with other regions. There are 11 torture cases and 98 victims in Papua. The number of allegations of torture in Papua is strongly correlated with the warming of the political situation and the increasing intensity of violence in general in there for the past year. The victims generally are indigenous Papuans and consider them to be victims of false arrest and arbitrary detention by security forces. This reinforces the stigmatization and discrimination against people of Papua up to the criminalization of them.

Second, the practice of torture generally occurs in situations where the victims were so helpless against the perpetrators; common situation happens where the detention rooms are closed. The situation becomes worse when the victim is merely an ordinary citizen, who was suspected of a crime- representing the structure of the lower class. This also occurs in Indonesia where most of the alleged victims of torture are criminal suspects or convicts who came from the laity group (the enemy of public opinion such as terrorists, drug dealers, separatist, and others) and is often not accompanied by a legal representative. Until now, KontraS monitoring report has not found the alleged practice of torture against perpetrators of corruption that generally are state officials or wealthy businessmen.

This situation confirms the importance of the immediate need to stop the acts of torture as well as create rules that can prevent the occurrence of torture. Based on the above mentioned points, KontraS recommends that:

– The Government and the Parliament should speed up the discussion of the Penal Code and Criminal Procedure Amendment Bill, or prepare a separate bill against Torture. It is intended to answer the urgent need for regulation to efforts to criminalize acts of torture;
– Relevant state institutions such as the Military, Police, and Ministry of Justice and Human Rights (which oversees the prison system and prisoners in Indonesia) to ensure the maximum punishment to the offender to provide a deterrent effect and implement a mechanism for internally vetting for officials, officers, or officers who conduct, give commands, or fail to prevent the practice of torture;

– State institution which has a mandate to monitor or control functions that are independent (independent external oversight bodies), such as the National Human Rights Commission, Ombudsman, or Kompolnas should also apply a vetting mechanism to narrow the room of action for perpetrators of torture;

– The Government should be able to stop the practice of torture based on the pattern of stigmatization and discrimination that are occurring in Papua, given the sharp rise of torture in the region that is able to aggravate the problematic situation in Papua;

– The Government and Parliament to take immediate ratification of the Convention on the Protection of All Persons from Enforced Disappearance and the Optional Protocol to the Convention against Torture;

– Government and Parliament to review the various state policies that facilitate the practice of torture and other cruel, inhuman, or degrading treatment.

Jakarta, 22 June 2012
Working Committee,

Indria Fernida Papang Hidayat
Deputy Coordinator I Head of the Research Bureau
(+62816.146.6341) (+62812.959.8680)
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High Cort upholds three-year sentences for Forkorus and his colleagues

JUBI, 11 May 2012

The High Court in Papua has decided that Forkorus and his co-defendants should be sentenced to three years, in accordance with the verdict declared at the trial on 16 March.

The defence lawyer of the five men, Gustaf Kawer said that the High Court’s decision had simply affirmed the verdict of the district court which had given the men sentences of these years each.

He said that the High Court’s decision was conveyed to the five men today. Kawer also said that the articles in the Criminal Code which had been used to condemn the men had not been considered by the High Court. ‘They simply handled the case as a priority and in so doing confirmed the three-year sentence.’

He went on to say that this is the kind of political error that is commonplace in this country.

The five men have been given two weeks to decide whether they want to appeal to the Supreme Court, the highest court of appeal, following the counter-appeal made by the Prosecutor to the Jayapura district court.

The prosecution did not make any mention of the basis used for laying the charge of treason against the five men. Even so, the High Court judges simply expressed their agreement  with the demand for sentence that had been made by the prosecutor., nor did they say anything about the time the crime was perpetrated.

Dominikus Sorabut and Edison Waromi were hand-cuffed at the end of the Third Papuan People’s Congress on 19 October, 2011. They, along with the other two were jointly charged with treason and for having proclaimed the establishment of the Federal State of West Papua and appointing Forkorus Yaboisembut as its president.and Edison Waromi as its prime minister.