Tag Archives: Judicial review

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]

Charges against two Papuan defendants at variance with other court documents; also, statement by Warinussy

JUBI, 31 March 2011 

The formal indictment presented in court against Mecky Bleskadit and Dance Yenu who are facing the charge of unfurling the 14-star flag  in Manokwari last December is at variance with the verbatim report submitted to the court by the police.

A member of the legal team of the defendants, Simon Richard Banundi, said that the charge sheet  does not reflect the contents of the interrogation report which provides a chronological account of the police arrest and they intend to make a formal complaint about this when they submit their demurer (eksepsi) at the next hearing of the case on 5 April.

Banundi said that the two defendants were facing charges under Article 106  of the criminal code for makar and they are also accused of being separatists. The charge sheet also makes reference to Articles 107 and 110 for alleged provocation of a large number of people. After the indictment was read out, the hearing was adjourned and will continue on 5 April.

Yan Christian  Warinussy, co-ordinator of the defence team, later told the press that  when submitting their demurer, he would deal at length with the continuance in force of the makar article and the other articles used in the charge sheet. These articles are being used to silence Papuan activists whenever they give expression to their aspirations and can even result in their ending up behind bars.

The two defendants along with five others were involved in an incident when they unfurled the 14-star flag to commemorate the anniversary of the declaration of West Melanesian independence on 14 December 2010 in Manokwari, West Papua.

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In a statement issued on the following day, the co-ordinator the defence team, Yan Christian Warinussy said that even though articles 102, 106, 108 and 110 can be described as being ‘karet’ (highly flexible), they have been used since the days of President Sukarno and up to the present era of reformasi. to silence people holding  views contradictory to those in power and are still being used by elements within the judiciary and including the police, against people calling for democracy in the Land of Papua as well as in Maluku and Aceh.

He said that the activities that had been undertaken by the two defendants last December had led to charges of makar whereas what they had done should not be seen as makar or separatism. Makar should be seen as an act involving armed violence  or violence. Can the expression of people’s aspirations  such as unfurling the 14-star flag or the Morning Star flag (kejora), or singing the song, Hai Tanahku Papua be branded as makar or separatist?

The government should stop using these articles and there should be a judicial review and an end should be put to using these articles to silence democratic actions in the Land of Papua.

A movement must be launched to call for a judicial review of the makar article must secure the support of all components of society as well as the local governments of Papua and West Papua.

Call for judicial review of makar article

JUBI, 31March 2011 

‘Makar’ should be tested before Constitutional Court

Yan Christian Warinussy, the executive director of LP3BH, the Instituteof Research, Analysis and Development for Legal Aid, has called on the Dewan Adat Papua, the Papuan Customary Council, to submit the ‘makar‘ -subversion – article in the Indonesian Criminal Code/KUHP to the Constitutional Court for a judicial review.

‘I call on DAP together with the Papuan people to seek a judicial review of the makar article before the Constitutional Court because it  is no longer appropriate for such a law to remain in force in a democratic country like Indonesia. ‘Other democratic states around the world don’t have such a law,’ he said, ‘because it is so out-of-date.’

He said that this should be recognised by all components of Papuan society, including DAP and should be tested by a judicial review.’

If this article continues to remain in force, the police will be able to make use of it to arrest Papuan activists when they give expression to their political aspirations to the government. This includes rejecting the special autonomy law and calling for dialogue as the way to resolve the Papuan issue and various other problems in Papua.’

This article can also be used by prosecutors and judges to convict Papuan civilians and activists when raising problems that they confront. ‘In my opinion, this article will continue to be used  to round up and imprison indigenous Papuans whenever they give voice to their aspirations.

He said that the police continue to use articles 106 and 107 of the criminal code on subversion and incitement to detain Papuan activists whenever they raise any problems in Papua, he said.