2) Constitutional Court rejects legal challenge against 1969 Act of Free Choice
--------------------
1) Lawyers assert Jakarta Six criminalised for excursing their freedom of expression
Tempo – January 7, 2020
Court reprimands Papua defendant for wearing penis gourd – January 6, 2020 (Kompas)
M Julnis Firmansyah, Jakarta – One of the lawyers representing six Papua activists being tried for treason, Annisa Rizky, says that her clients are being criminalised for excursing their freedom of expression.
Because, according to Rizky, the six Papua activists were expressing an opinion in public with good intent, not committing makar (treason, subversion, rebellion).
“The team of lawyers has concluded that what has happened is the criminalisation of the defendants for peacefully expressing themselves which is guaranteed under the law”, said Rizky when reading out a demurrer at the Central Jakarta District Court on Monday January 6.
Rizky explained that the term makar in Article 106 of the Criminal Code (KUHP) is a translation of the Dutch term aanslag. According to legal experts, she continued, the meaning of aanslag is an attack.
The other article which regulates the issue of makar, according to the lawyers, is Article 87 of the KUHP. In this article it states that makar is an action which from the start is committed with the intent to attack the territorial state or the administration as referred to under Article 53 of the KUHP.
The contents of this article however are different from what the defendants did and the indictment against the six. The fact is, said Rizky, the defendants were simply expressing an opinion in public peacefully and with good intent.
“But in the indictment and case dossiers there is no reference to a violent attack or attempt at a violent attack against the government, state officials, civil society or other public facilities”, she explained.
Rizky continued saying that the defendants also followed regulations as embodies under Law Number 9/1998 on Freedom of Expressing an Opinion in Public. One element of this was that they submitted a written notification with the Metro Jaya regional police intelligence and security division on the planned demonstration.
Moreover, she continued, on the day that they conveyed their opinion, the police watching over the rally did not attempt to break up the demonstration.
She again asserted that the defendants did not damage any public facilities, commit violence or any other crime during the demonstration.
Earlier, the six Papuan activists were indicted on charges based on two alternative articles. First, Article 106 of the KUHP in conjunction with Article 55 Paragraph 1 of the KUHP which regulate the issue of makar. Second, Article 110 Paragraph 1 of the KUHP on criminal conspiracy.
The six Papuan activists are being tried in three different groups. The First group of defendants comprises Paulus Suryanta Ginting (Surya Anta), Charles Kossay, Ambrosius Mulait and Isay Wenda.
[Translated by James Balowski. The original title of the article was “Eksepsi 6 Aktivis Papua, Tudingan Makar Dinilai Kriminalisasi”.]
-------------
2) Constitutional Court rejects legal challenge against 1969 Act of Free Choice
CNN Indonesia – January 6, 2020
Jakarta – The Constitutional Court (MK) has rejected a judicial review of Law Number 12/1969 on the Formation of the West Irian (Papua) Autonomous Province and Autonomous Regencies in the Province of West Irian which was submitted based on the 1945 Constitution of the Republic of Indonesia.
“We hereby pronounce and declare that the appeal by the applicants cannot be accepted”, said the presiding judge in reading out the ruling at the Constitutional Court in Jakarta on Monday January 6.
The challenge was submitted by the Papuan People’s Advocacy Coalition for Truth and Justice on April 12 last year. The appeal was registered as Number 35/PUU-XVII/2019.
The object of the judicial review was Law Number 12/1969, specifically the considerations section along with Paragraphs 7 and 8 of the elucidation.
In the object being tested, namely the first section of the elucidation, it states that the majority of Papuan people with full awareness and feelings of unity elected to become part of Indonesia through the 1969 People’s Referendum (Pepera, the 1969 UN sponsored referendum on West Papua’s integration with Indonesia known as the Act of Free Choice).
The Coalition however felt that the implementation of the Pepera was ridden with human rights violations. The Papuan people also did not make their choice independently but rather, were coerced by rouge individuals into deciding to become part of Indonesia. This conflicts with Article 28E Paragraph (2) and Article 28G Paragraph (1) and Article 28I Paragraph (1) of the 1945 Constitution.
Because of this therefore, they felt that the Pepera was invalid and should not have been used as a basis for the formation of Papua province as mandated under Law Number 12/1969. Thus the formation of Papua province based on Law Number 12/1969 is invalid.
Despite this, in handing down their decision on the appeal the Constitutional Court panel of judges took a different view.
Constitutional Court Justice I Dewa Gede Palguna said that the Constitutional Court does not have the authority to assess the validity of the results of the 1969 Pepera. This is because the Pepera was endorsed by United Nations General Assembly Resolution Number 2504 (XXIV) dated November 19, 1969.
“Arguing constitutional damages arising out of the stipulations of Law Number 12/1960 means the same as ‘forcing’ the Court to assess the validity of the UN’s actions”, said Palguna.
In their ruling, the court also explained that the applicants did not have the right to submit a judicial review bearing in mind that Law Number 12/1969 is part of a policy on the formation of regions so only regional government have the legal standing to submit such an appeal.
“Bearing in mind that because the appeal is not related to constitutional issues and that the applicants do not have the legal standing to submit a judicial review, a quo (from which) the Court cannot give any further consideration to the basic appeal of the applicants”, said Palguna. (tst/bmw)
Notes
Known as the “Act of Free Choice”, in 1969 a referendum was held to decide whether West Papua, a former Dutch colony annexed by Indonesia in 1963, would be become independent or join Indonesia. The UN sanction plebiscite, in which 1,025 hand-picked tribal leaders allegedly expressed their desire for integration, has been widely dismissed as a sham. Critics claim that that the selected voters were coerced, threatened and closely scrutinized by the military to unanimously vote for integration.
[Translated by James Balowski. The original title of the article was “MK Tolak Gugatan Keabsahan UU Pembentukan Papua”.]
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.