Advocates say calling for a referendum, flying Morning Star flag not treason

KBR – September 3, 2019
Morning Star flag flown at rally in front of State Palace – August 28, 2019 (Tribune)
Morning Star flag flown at rally in front of State Palace – August 28, 2019 (Tribune)

Valda Kustarini, Astri Septiani and Adi Ahdiat, Jakarta – The Institute for Criminal Justice Reform (ICJR) and the Institute for Human Rights Studies and Advocacy (ELSAM) have criticised the arrest of six Papuan students on charges of makar (treason, subversion, rebellion).

According to both the ICJR and ELSAM, the articles on makar can only be used for cases which are accompanied with violence.

“[The term] makar originates from the Dutch word aanslag which means ‘an attack’, showing that the measure of the start of the implementation must be an action which it is predicted is able to separate part or all of a country’s territory, and at the most basic the existence of the use of force”, explained the ICJR and ELSAM in an official press release on Monday September 2.

“In the case of actions in the form of discussions or expressions of opinion this (the makar articles) cannot be applied”, they continued.

“In discussing the makar articles, when the Dutch KUHP [Criminal Code] was drafted, this was also mentioned, that makar must be differentiated from political discussions. History notes that not one of the leaders of the Indonesian independence struggle were ever indicted under the makar articles during the Dutch East Indies administration”, they asserted.

Demanding referendum isn’t makar

The ICJR and ELSAM also explained that actions seeking change to the constitutional state also cannot be indicted under the makar articles, including calling for a referendum.

This is based on Article 110 Paragraph (4) of the Indonesian Criminal Code which reads, “Not punishable shall be persons from whom it is evident that their intent is merely aimed at the preparation or facilitation of political changes in the general sense”.

According to the ICJR and ELSAM, this article allows for actions seeking an act of self-determination or self-governance.

“The UUD 1945 [the Constitution] also lays out the stipulations on self determination (self-governance) which are regulated under Article 18B of the UU 1945”, they explained.

“The right to self-determination itself is not something that has never been done in Indonesia. An act of constitutional change occurred during the 1999 East Timor referendum. The East Timor referendum was acknowledged by the international community. Meaning that Indonesia has once allowed for an act of self-determination as a constitutional practice in the general sense”, they continued.

The ICJR and ELSAM explained that the right to self-determination is also acknowledged in several international human rights conventions which have been ratified by Indonesia.

“In broad terms, the right to self-determination itself as part of constitutional practice in general is acknowledged by the [Indonesian] state”, they explained.

No indications of makar

According to ICJR researcher Maidina Rahmawati, the police must free the Papuan student activists because there are is no legal basis for prosecuting them under criminal law.

“The police are still not able to understand the long history of the origins of our criminal laws. So in this context the makar [articles] were never created for legitimate endeavours, demonstrations and expressing [a view] are legitimate. The essence of the initial aim [of the articles] was to criminalise aanslag. Aanslag is an attack”, Rahmawati told KBR on Tuesday September 3.

Rahmawati continued saying that if you refer to the history of the word makar, which means an attack, then in order to be arrested or declared guilty, then the word makar must be attached to a criminal act, for example makar to overthrow the legitimate government, or makar to carry out an attack on the president.

Because of this therefore, the police’s application of the makar articles for flying the Morning Star flag in the case of the six Papuan student activists is inappropriate.

“The question is, was the flying of the flag an attack [intending] to overthrow the legitimate government? Now, it’s this which has been wrongly used in the implementation of the current criminal justice system”, explained Rahmawati.

Caution in applying makar

Meanwhile Civil Society Coalition for Democracy member Tigor Hutapea, who has also been providing legal assistance to the arrested Papuan students, is calling on law enforcement officials to be careful in applying the makar articles just for flying the Morning Star Flag.

Hutapea said that law enforcement officials must be able to prove that the actions were in fact makar. If it cannot be proven that there were elements of makar in this case, he is calling for the six activists to be released.

“Police must be careful in applying these articles because what was done by our friends was a peaceful action which did not cause damage or attack state symbols or symbols of state security. And after the actions were over, they returned to their respective homes in an orderly fashion. So there was no serious threat to security personnel or the state by the actions they carried out”, Hutapea told KBR.

Hutapea explained that there must be a threat to state sovereignty involving violence and disturbing security for the police to apply the makar articles and in reality, the Papuan students held a peaceful action, without violence.

Legal aid

Communication access to provide legal aid to the six Papuan activists has been restricted and blocked. The ICJR and ELSAM are demanding that the police allow the arrested students the fullest possible access to legal aid and to be accompanied by a lawyer.

“They must be released if there has been no actions which can indeed by indicted under the makar [articles]”, they asserted.

Earlier police arrested eight Papuan activists in Depok, West Java, and Jakarta, in relation to an August 28 peaceful protest action in front of the State Palace in which the Morning Star flag was flown.

In addition to the arrests, police have also been conducting sweeps of Papuan student dormitories without any clear legal grounds.

[Translated by James Balowski based on two articles by KBR on September 3. The original title of the lead article was “ICJR & ELSAM: Permintaan Referendum Tak Bisa Dijerat Pasal Makar”.]