Criminalising politics in West Papua

6 Jul 2001

ELSHAM Papua & TAPOL

Murdjono Murib, Yafet Yelemaken, Amelia Yigibalom, Rev Yudas Meage, Rev. Obed Komba, Agus Sorabut, Hendrik Sieb, Edi Marian, Herry Kosay, Frans Huby, Isak Wenda, Atinus Wenda, Les Wenda, Timanus Kogoya, Yules Wenda, Teri Wenda, Elius Wenda, Yohakim Hubi, Jekson Itlay, Yoel Wenda, Pilius Wenda, Sudirman Pagawak
The 22 West Papuans named above have been in detention in Wamena, Jayawijaya district, since October and December 2000. All the 22 were arrested during and following a series of highly provocative operations by the Indonesian police in and around the town of Wamena, which began when police pulled down a number of West Papuan flags and brutally assaulted the flag-raisers. They were all brutally beaten and tortured during their arrests, under interrogation and in their prison cells. They were sentenced to various terms of imprisonment in blatantly unfair trials in January and February this year and held in Wamena Prison. Feelings among the people of Wamena about their continued detention are running high.
On 12 June, their defence team filed appeals with the Supreme Court in Jakarta for the convictions to be quashed after the West Papua High Court earlier upheld the district court's verdicts.
In Indonesia, supremacy of the law has for decades been overridden by the political interests of the state, particularly in places such as West Papua where the demand for self-determination is strong. This remains true three years after the fall of the dictator, Suharto, and the coming to power of a democratically-elected president twenty months ago.
The 22 Wamena prisoners include five Panel (local representative) members of the Papuan Presidium Council (PPC) and a group of 17 others. Thirteen of the 17 are members of the local Satgas Papua (Papuan Taskforce), one is a government employee and three are members of the public who were caught up purely by chance in the incidents for which the Satgas Papua members were arrested.
The Satgas Papua members and their colleagues were convicted in relation to their exercise of their right to freedom of expression and assembly on 6 October 2000 by unfurling the 'Morning Star' Papuan flag, while the five Panel members were convicted in relation to their membership of the PPC and for their actions in disseminating the decisions of two democratic gatherings in Jayapura, the Papuan Consultation meeting in February 2000, and the Second Papuan People's Congress in May-June 2000, which led to the founding of the PPC.
The 17 were sentenced to between one and three-and-a-half years imprisonment, and the five Panel members were sentenced to between four and four-and-a-half years. They were all found guilty of rebellion (makar).
The 22 prisoners were all tried and convicted for engaging in political activities and are therefore political prisoners whose continued detention is in violation of their fundamental right not to be arbitrarily deprived of their liberty.
The treatment of the 22 is in stark contrast to the failure of the authorities to act against members of the security forces and state officials responsible for serious human rights violations, whose unlawful acts led to the arrest and conviction of the 22. International action is urgently required to obtain the release of these political prisoners and to press for the human rights violators to be brought to justice.

The Wamena Incident, 6 October 2000

Early on 6 October 2000, members of the local police and the Police Mobile Brigade (Brimob) attacked a number of Satgas Papua posts (posko) where the Morning Star flag had been unfurled. Three days earlier, the PPC had reached agreement in Jayapura with the provincial military, police and civilian authorities that the flag could continue to be flown until 19 October by which time the PPC was hoping to meet President Abdurrahman Wahid to discuss the issue of flag-raising.
In contravention of this agreement, all the flagpoles in Wamena were destroyed, the flags ripped to pieces and the flag-raisers violently assaulted. As the police went from posko to posko pulling down flags, eighty people were taken into custody, including 52 Satgas Papua members who were picked up at six poskos. Thirteen Papuans were shot dead during the police operation. The local population responded angrily to the attacks on the flag-raisers and tensions mounted when the police operation spread to outlying villages where news of the operation had angered the inhabitants. In Woma village on the outskirts of Wamena, the police, confronted by angry crowds, beat a retreat towards the local market and, in a highly provocative move, took refuge in a shop owned by non-Papuan migrants. This ignited a frenzied response from the local people; they attacked the migrants who were seen as being in collusion with the police. Two dozen migrants were killed in the first ever attack by ordinary Papuans against neighbours with whom they had lived in harmony for decades. This became known as the Bloody Wamena Incident.

Treatment in detention

The scores of detainees taken into police custody on 6 October were severely beaten and tortured. They were forced to strip to their underwear and were kicked and beaten with rifle butts and canes. They were also forced to drink urine and had rifles pointed into their mouths. The next day, all were released with the exception of 16 men - Agus Sorabut, Hendrik Sieb, Edi Marian, Herry Kosay, Frans Huby, Isak Wenda, Atinus Wenda, Les Wenda, Timanus Kogoya, Yules Wenda, Teri Wenda, Elius Wenda, Yohakim Hubi, Jekson Itlay, Yoel Wenda, and Pilius Wenda. The police alleged that all 16 were members of Satgas Papua (which does not constitute a crime), but three of them - Atinus Wenda, Isak Wenda and Herry Kosay - were not in fact members. Later that day, a Papuan named Yohanis Udin who had been picked up by the police in the street died in the police station where the others were being held, having sustained serious injuries from beatings by the police. A seventeenth man, a civil servant named Sudirman Pagawak, was arrested on 9 October, and was subsequently lumped together with the 16 other detainees.
Throughout the period of their detention and during interrogations, the 17 men were regularly threatened with weapons and beaten. Various provisions of the Indonesian Criminal Procedure Code designed to protect persons in detention were violated, including Articles 21, 51, 58, 59 and 60. The men were not told of the reason for their arrest nor the nature of the charges against them until just before their trial. Their families were not kept informed. They were denied access to legal representation throughout their interrogation and not allowed visits or food and medical care from relatives, doctors and spiritual leaders.
The prisoners were made to sign interrogation reports (Berita Acara Pemeriksaan) containing confessions under duress and whilst in a state of confusion. The interrogator did not allow them to read the documents or explain the contents to ensure that the prisoners understood what they were signing. Some of the prisoners could not read or write and one could not speak Indonesian. No apparent effort was made to help them overcome these difficulties so that they could fully understand the charges and proceedings against them. It would appear that the confessions were not voluntary and should not have been admitted in evidence.
There were also irregularities in the length of the prisoners' pre-trial detention, which according to the Criminal Procedure Code should not have exceeded 60 days.
While the trials were in progress, six of the prisoners were attacked by Brimob troops in their cells on 4 February and suffered serious bodily injuries:
Herry Kosay was kicked in the face with jackboots, causing gashes in his cheeks. Both his knees were struck with iron objects. He was threatened by men who were holding their rifles at the ready, and warned that he would be forced to lick up his blood that had dripped onto the floor.
Jekson Itlay, Hendrik Siep, and Frans Huby were struck in the back with an iron rod and suffered bruises and swellings.
Elius Wenda was struck on the head where he sustained serious bruises and swellings.
Atinus Wenda sustained serious injuries after being kicked in the knees with a jackboot.
In addition, Murjono Murib, one of the five Panel members, was struck in the lower back with a rifle butt and told to confess that he had instigated the Bloody Wamena Incident. When he refused to do so, he was warned that if he denied these charges in court, they would pull his nails out and cut off his nose.

Five Panel members charged with rebellion

As fury raged on the streets of Wamena on 6 October, four Panel members – Murdjono Murib, Yafet Yelemaken, Amelia Yigibalom and the Rev Yudas Meage - tried to calm the people down and halt the unrest. Their efforts were unsuccessful because the police operation continued, culminating in the tragic incident in Woma.
Some days later, the police summoned the four Panel members and a fifth member, Rev. Obed Komba, who had been away from Wamena on the day of the incident. They were asked to sign an accord with the local police, military and government chiefs, promising to help find a solution to the disorder. They signed and were then told that if they failed to produce the persons who had carried out the Woma killings, they themselves would be held responsible for the tragedy. Hard as they tried to do that, their efforts failed. Then, two of the five were held briefly by the police and warned that they might be accused of having incited the Bloody Wamena Incident on the grounds that it had erupted as a result of their (perfectly legitimate) activities to inform the local population about the two gatherings in Jayapura in February and in May-June 2000, which led to the founding of the Presidium Council. All five Panel members underwent interrogation by the police for this alleged crime.
After the interrogations had been completed, the five Panel members were arrested on 13 December and told that would be charged with the crime of makar – rebellion.

The trials

The trials of the seventeen began in January 2001. Apart from Sudirman, they were all charged with the same offences but were dealt with in twelve separate trials held simultaneously. The five PPC members went on trial in February, facing the same charges as each other but in five separate trials. By splitting up the trials, the prosecutors were able to call some of the accused to testify against each other.
Heavily-armed police and military forces maintained an intimidatory presence outside and inside the courthouse despite complaints from defence counsel. This discouraged local people from attending the hearings and violated the accuseds' right to a public hearing. A request by the International Commission of Jurists’ Australian branch to send two observers to the trials was rejected by the authorities - the first time the ICJ had ever been denied entry to observe a trial in Indonesia. Foreign journalists were also excluded by a general ban on them entering West Papua.

Proceedings against the 17

The 17, apart from Sudirman, were charged with:
attempting, with intent, to separate part of the territory of the State (‘makar’ or rebellion) contrary to Article 106 of the Indonesian Criminal Code;
disobeying an order of a state official contrary to Articles 216 and 335 of the Criminal Code;
threatening or using force against a state official acting in the lawful performance of his duties contrary to Article 214 of the Criminal Code; and
unlawfully possessing sharp weapons contrary to Article 2 of Emergency Law No 12/1951.
Sudirman, the civil servant, was charged with rebellion under Article 106 and with blocking a public road, thereby endangering public safety contrary to Art 192 of the Criminal Code.
The accused denied all the charges against them.
After the indictments were read out in court, the defence lawyers filed objections to the proceedings (eksepsi). Their chief complaint was that the accused had been interrogated without legal representation in contravention of Art 56 (1) of the Indonesian Criminal Procedure Code which makes legal representation mandatory for persons facing charges punishable by more than 15 years, including charges under Article 106. They cited a Supreme Court decision of September 1993, which stipulated that an indictment is unlawful and should be dismissed if Article 56 (1) has been violated. The lawyers' complaint was rejected by the panel of judges on the grounds that it was in the public interest for the trials to proceed and the rights of the accused therefore took second place. The judges also ruled that the Supreme Court decision was not ‘permanent’ and could therefore be ignored.
Most of the testimony during the court hearings was by witnesses called by the prosecution and was often contradictory. As the lawyers stated in their appeal to the Supreme Court, the judges only took account of the police evidence, they ignored the denials of the accused and failed to take account of contradictory statements about whether some of the accused had been holding bows and arrows poised for use. Testimony was even contradictory as to whether the men defending the flags were holding weapons at all.
The defendants strongly denied that they had been holding weapons as alleged by police witnesses and that they had attacked the police. They said they had simply asked the officers on whose instructions the flags had to be pulled down, saying that permission to unfurl the flags had been given by the President of Indonesia. The police said their instructions ‘came from above’ without explaining what that meant, and then proceeded to pull down the flags, wielding rattan sticks, shields and rifle butts. One defence witness, Yason Yikwa, told the court that he entered one of the poskos together with the police chief without hindrance and when he started to untie the cord of the flag, he was struck on the brow by a police officer and blood started streaming down his face and onto his shirt.
The court ignored testimony by witnesses and the accused that torture and other forms of ill-treatment were used during the interrogations in order to obtain the confessions. In a serious breach of fair trial requirements, the court rejected a defence request for the court to summon the interrogator so that he could be confronted with these allegations. The prosecution case was based solely on testimony from the police officers who had arrested the accused and on the interrogation reports (BAP) which had been produced unlawfully.
The judges' conduct of the trials was clearly biased in favour of the prosecution, by rejecting the defence lawyers’ objections at the commencement of the trial and by refusing to allow the defence to cross-examine the interrogator whose evidence was critical to the case against the accused. Their conduct was a serious breach of the principle of the independence and impartiality of the judiciary.
At the conclusion of their questioning, the judges asked each of the 17 accused what they thought about the Woma tragedy when migrants were attacked and homes were destroyed by fire to which all replied that this was inhumane. The judges' purpose in asking this question is not clear. The Woma tragedy had no relevance to the trials over which they were presiding, having occurred after almost all of the accused had been arrested.

Verdicts and appeals

The 17 men were all found guilty of rebellion. All 17, apart from Sudirman, were found guilty of disobeying an order of a state official and of possessing sharp weapons. They were acquitted of threatening or using force against a state official. Sudirman was found guilty of blocking a public road. They were given sentences of between one and three-and-a-half years. Their appeal to the High Court in Wamena was dismissed.
With regard to the charge of rebellion, the district court stated that each accused had been found guilty of ‘intent’ and of taking ‘initial steps’ and it was not necessary to prove whether his purpose had been achieved or not. The lawyers argued in their appeal to the High Court that the accused had unfurled the flag in response to a call from the PPC, which had acted in agreement with the Indonesian government. If raising the flag was an act of rebellion, why, they asked, had so many of the flag-raisings since the Peoples' Congress in June 2000 not been stopped. They argued that membership of Satgas Papua was not proof that the accused had done anything to separate West Papua from the Indonesian State.
The appeal to the Supreme Court states that the district court failed to take account of the agreement reached on 3 October between the PPC and the local authorities allowing the Morning Star flag to be flown until 19 October. In calling for the Supreme Court to overturn the convictions and release the convicted men, the lawyers stated that such a decision: ‘would end society’s dissatisfaction with and loss of confidence in the law courts, it would end the perception that legalistic strategies are being used to conceal a state political strategy of restricting people’s freedom of expression and freedom to organise’. Moreover, the lawyers argued that if the judiciary implemented its powers consistently and in accordance with the law, ‘this would prevent intervention by the executive and those in power, and preserve the independence of the judiciary’. The lawyers argued that the trials were nothing more than a formality to convict people whose opinions and beliefs differ from those of the people in power

Proceedings against the five Panel PPC members

The trials of the five Panel members commenced on 12 February 2001, after the trials of the 17 had ended. Although they had been interrogated regarding their alleged involvement in the Woma tragedy, they were not charged in connection with that incident. The charge against them, conspiracy to commit rebellion under Articles 106 and 110 of the Criminal Code, related to their membership of the PPC as Panel representatives and their activities in informing local people of the results of the two meetings held in Jayapura in 2000.
Demurrers (eksepsi) by the defence lawyers - complaining that the indictments were imprecise as to the nature of the alleged crimes and as to whether the accused participated as principals, accessories or as the brains behind the alleged rebellion - were dismissed by the court. The lawyers also averred that their clients’ actions could hardly have been ‘rebellious’ since the conference at which the PPC was founded was substantially funded by the President of the Republic.
Testimony from the witnesses, who were themselves being tried separately, confirmed that the accused had taken part in efforts to disseminate information about the Papuan Peoples' Congress, often at events attended by local government officials and with their express permission. The five were all found guilty as charged. The prosecutor demanded sentences of seven years each. In the event, four of the accused were sentenced to four years imprisonment, while the fifth, Yafet Yaelemaken was given four-and-a-half years.

Violations of international rights and standards

The proceedings against the 22 Wamena prisoners involved flagrant breaches of Indonesian law (described above) and serious violations of international human rights and standards relating to detention and fair trial.
In particular, numerous breaches of the rights and standards set out in the International Covenant on Civil and Political Rights (which Indonesia has undertaken to ratify by 2002/03) and the UN Body of Principles for the Protection of all Persons under any form of Detention were committed by the police and judicial authorities. These included denying the prisoners legal representation during interrogation and detention, denying the prisoners access to relatives and advisers during detention, failing to notify the prisoners in detail of the charges against them, refusing to allow the defence to cross-examine a key witness and denying the prisoners a fair and public hearing.
Of greatest concern is the fact that state officials perpetrated egregious acts of torture and other forms of ill-treatment against the prisoners during their detention. Indonesia has ratified the Torture Convention and its courts are obliged under Article 15 to exclude any evidence obtained as a result of torture. The courts must also take into account in determining the admissibility of evidence any other form of treatment which falls short of torture. Far from complying with these obligations, the court did not even consider the evidence of torture and ill-treatment and refused the defence request to cross-examine the interrogator of the prisoners.
Indonesia is also obliged under the Torture Convention to investigate and prosecute those responsible for torture and other forms of cruel, inhuman or degrading treatment. Furthermore, it is an offence under Article 422 of the Indonesian Penal Code for a state official to obtain a confession by means of coercion. Despite this, the authorities have to date failed to investigate those responsible for the ill-treatment of the prisoners.
The unfair and brutal treatment of the prisoners during their detention and trial was of such gravity as to render their continued detention a violation of their right not to be arbitrarily deprived of their liberty.
The conduct and outcome of the proceedings also casts serious doubt on the independence and impartiality of the presiding judges.
It is evident that the primary reason for the prisoners' detention is their political beliefs. Although no evidence could be found of their involvement in or responsibility for the Bloody Wamena Incident, they were scapegoated for that tragedy because of their support for independence for West Papua. They are being detained for exercising their fundamental rights to freedom of expression, assembly and association. As such they are political prisoners and their continued detention, for this reason also, amounts to a violation of their right not to be arbitrarily deprived of their liberty.

Recommendations

We call upon the Indonesian authorities to:
1. Release all the 22 prisoners immediately and unconditionally.
2. Investigate and bring to justice the state officials responsible for the violence and killings which took place at Wamena on 6 October 2000.
3. Investigate and bring to justice the state officials responsible for the extra-judicial killing in police custody of Yohanis Udin and the acts of torture and other forms of ill-treatment against the prisoners during their detention.
4. Release all other political prisoners and persons subject to arbitrary detention in West Papua
5. Respect the rights of the people of West Papua to freedom of expression - including their right to peacefully express their independence aspirations by raising the 'Morning Star' flag - and to freedom of association and assembly, and to respond to their demands politically and not by force.
6. End the policy of criminalising political activities and to repeal Article 106 of the Penal Code and all other laws which make the peaceful expression of political opinions a criminal offence.
We further urge the international community to call upon the Indonesian Government to:
1. Lift all restrictions on journalists and international trial observers attending trials and to ensure that all trials are fully open to the public and are conducted in accordance with international fair trial standards.
2. Take further measures to speed up legal and judicial reforms and to implement the recommendations of the 1999 report of the Working Group on Arbitrary Detentions.
3. Invite the UN experts on extrajudicial executions, torture and the independence of judges and lawyers to Indonesia to carry out independent assessments of the human rights situation in West Papua.
4. Accede to the International Covenant on Civil and Political Rights in accordance with its commitment to do so in 2002/03.
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This report was issued by ELS-HAM, the Institute for Human Rights Study and Advocacy, West Papua, and TAPOL on 6 July 2001
See also press release, 6 July 2001
For latest developments see Update, 26 July 2001

Tagged: Freedom of Expression, Justice and Trials, West Papua, Political Prisoners