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

September 6, 2013

Statement by ALDP, Alliance for Democracy in Papua

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.

Treason is an act committed by someone who takes action against the state authorities in order to ensure that part of the territory of that country is ceded to another country.

The articles on treason were adopted by the Dutch colonial government based on Article 124 of the British Penal Code in 1915. Although they were declared to be inapplicable by the Indian Supreme court and the East Punjab High Court because they were in violation of the Indian Constitution which guarantees the right to freedom of expression and to state one’s opinion. This is why the Dutch Colonial Government made use of the articles in their colonial territories. Decades after Indonesia declared its independence from The Netherlands, the articles should now be repealed because it is unacceptable to use them against citizens of Indonesia , and this applies also to Papua which is not a colony of Indonesia.

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), 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 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 with 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 demeanours. In the trial of Buchtar 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]

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