HUMAN RIGHTS COUNCIL
Twentieth session, Agenda Item 3, Interactive Dialogue with the Special Rapporteur on freedom of expression
A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status
The Asian Legal Resource Centre (ALRC) wishes to alert the Human Rights Council (HRC) to the human rights situation in Indonesia’s Papuan provinces, notably concerning the freedoms of expression, opinion and assembly, as these are under consideration during the HRC’s 20th session. The ALRC warmly welcomes the work of both Special Rapporteurs working on these issues and hopes that the GoI will cooperate fully with their mandates, including by enabling country visits without delay and which include full access to Papua.
The freedoms of expression and assembly are a core battle-ground between State repression, exercised through abusive prosecutions, violence and heavy military deployment, and the legitimate aspirations of indigenous Papuans for peace, security, development and human rights. Human rights and political activists in Papua are being arrested and detained by the Indonesian authorities for expressing political views, while demonstrations are being met with excessive and disproportionate force, including beatings and even fatal shootings of participants.
The ALRC recalls that, in establishing the Special Procedures mandate on the freedom of association and assembly in October 2010, the Human Rights Council reaffirmed the rights to freedom of peaceful assembly and of association; recognizing these freedoms as essential components of democracy, providing individuals with invaluable opportunities to express their political opinions; and recognizing further that exercising the rights to freedom of peaceful assembly and of association free of restrictions is indispensable to the full enjoyment of these rights, particularly where individuals may espouse minority or dissenting religious or political beliefs.
According to London-based NGO TAPOL, which focusses on political prisoners in Papua, at least 77 Papuans have been detained and charged with treason or other related charges since 2008. Despite a number of persons deemed internationally to be political prisoners continuing to be detained in Papuan, Indonesia’s Minister of Law and Human Rights, Amir Syamsuddin, told to the media “there is no political prisoner in Papua,” after a visit to Abepura correctional facility last March. According to the Minister, those being detained are simply “unlucky citizens, as they have committed illegal activities.” A similar statement was delivered to the press in December 2011 by the Coordinating Minister for Political, Legal and Security Affairs, Djoko Suyanto.
The political prisoners whom Amir Syamsuddin and Djoko Suyanto labelled as ‘criminals’ were charged with treason (makar) and other treason-related crimes under Articles 106, and 110 paragraph (1) of the Indonesian Penal Code (KUHP). These articles are open to abusive use by the authorities, notably to punish persons engaging in exercising their rights to the freedoms of assembly and expression. Article 106 comprises vague terms enabling the authorities to sentence persons to life imprisonment – a maximum of twenty years imprisonment – for any attempts undertaken with the intent of bringing the territory of the state wholly or partially under foreign domination or to separate parts thereof. Article 110 (1) allows for a maximum of six years imprisonment for conspiracy to commit ‘crimes against the security of the state’ under articles 104 to 108. KUPH Article 160 concerning incitement to use violence against state officials carries a maximum punishment of six years imprisonment and is frequently being abused to prosecute human rights and independence protesters.
The ALRC has documented a number of cases that show a pattern of repression against persons participating in peaceful demonstrations or seeking to express their political views, as well as persons working in favour of human rights. For example, the ALRC condemns the arrests and shooting of persons participating in the Third Papuan People’s Congress, which began on October 17, 2011 and lasted for three days. The Congress was attended by more than 4000 indigenous Papuan participants at the Taboria oval (Zaccheus Field) in Abepura, Papua. On the final day of this peaceful assembly, a declaration concerning the right to self-determination of indigenous Papuans was read out, following which security personnel started violently dispersing Congress participants. They beat participants and arrested a number of them, including Forkorus Yaboisembut, Edison Waromi, August Kraar, Dominikus Sorabut and Selfius Bobii, who were charged under articles 110 paragraph (1), 106 and 160 of the KUHP. On March 16, 2012, the Jayapura District Court found them guilty of makar under article 106 and sentenced them to three years imprisonment.
The arrests, trials and convictions violate these persons’ human rights, including the freedom of expression, as they were based on overly vague provisions that unduly restrict this freedom. The Siracusa Principles on the Limitation and Derogation of Provisions in the ICCPR as well as the Human Rights Committee in its concluding observations on Belarus in 1997 have reaffirmed that laws restricting freedom of expression should be clear and any vague provisions which limit such a right represent violations of Article 19 paragraph (3) of the ICCPR. Moreover, their arrest and detention amount to the violation of the right to liberty which requires states to ensure that the deprivation of liberty is conducted in accordance with law that is precisely formulated and only when there are objective and reasonable justifications.
Furthermore, the ALRC has received credible information from KontraS and other local sources regarding the arrest of fourteen people in Sentani on May 2, 2012. On that day, a demonstration commemorating the 49 years of annexation of West Papua by Indonesia was held. Protesters marched to Sentani where the grave of Theys Hiyo Eluay, a former Papuan leader who was assassinated by the army in 2001 with impunity, is located. There they attempted to raise the Morning Star flag, which is a symbol of the Papuan identity permitted under the 2002 autonomy law, but they were stopped by the officers of Jayapura District Police, who arrested fourteen of them. Twelve of these were later released, but the two others were charged under KUHP Article 106 paragraph (1). In other instances where individuals have raised the Morning Star flag, armed soldiers and police officers have attacked their villages. On September 5, 2009, officers burnt 30 houses and killed livestock in Jugum Village, Bolakme District, local villagers raised the Morning Star Flag and refused to take it down.
Violations of the freedoms of assembly and expression in Papua are not restricted to the misuse of articles under the penal code, but also take place through a wider climate of fear that is created as a result of acts of violence, including killings. Alongside the arrests of fourteen people for attempting to raise the Morning Star flag, other protesters who had participated in the commemoration were shot while on their way home in the area between Koramil 1701 Jayapura and the Headquarters of the Indonesian National Military (TNI AD). One of them, Terjoli Weah, was shot in the stomach and was taken to the nearest hospital, but died as a result of his wounds. There has been no effective investigation or suspect named by the police to date.
Such killings of persons who have participated in peacefully demonstrations have been documented elsewhere. For example, workers of PT Freeport Indonesia in Timika conducted a strike which began on September 15, 2011, asking the company to adjust their wages. The management of the company, with the help of the police, intimidated the workers. PT Freeport Indonesia later fired the striking workers. On October 10, 2011, the fired workers came to the office of the company to protest the arbitrary termination of their employment. Over 1000 workers participated in the peaceful demonstration, but they were blocked by officers of the Timika District Police, who opening fire against the protesters, resulting in the death of Peter W. Ayamiseba and the injuring of nine other protesters.
Journalists are also under threat and attack in Papua. Ardiansyah Matra’is, a former journalist of Tabloid Jubi and a local TV station in Merauke, was found dead on July 30, 2010 in the Maro River, Merauke, after having received threats and intimidating messages for publishing videos and articles on illegal logging and land rights issues. Despite wounds indicating that Matra’is had been subjected to physical violence before his death, the police claimed he had committed suicide.
The GoI continues to restrict access by foreigners to the Papuan provinces; they require police travel permits in order to travel outside of the Papuan capital Jayapura. Special visas are required for foreign journalists seeking to report from Papua and mobile phone communication is reportedly monitored by the intelligence services. In 2010, two French journalists were detained after filming a public rally. During his visit to Indonesia in February 2009 the German Federal Commissioner for Human Rights was not able to visit Papua. Cordaid and the ICRC are also prevented from operating in Papua. German biologist Pieper was shot at on May 29, 2012 in Papua by unknown persons.
During Indonesia’s Universal Periodic Review on May 23, 2012, a number of states expressed concern and made recommendations with regard to the Papuan provinces. France urged the GoI to fully guarantee freedom of expression and ensure free access for civil society and national journalists to the Papuan provinces. The United Kingdom noted an increase in violence in the provinces. Australia recommended that the GoI uphold freedom of expression, including political expression…for all its citizens, including by ensuring effective state protection for minorities. Germany recommended that the GoI ensure that provisions of the Indonesian Criminal Code, such as articles 106 and 110, are not misused to restrict the freedom of speech.
While the government of Indonesia accepted the recommendations made above, the following did not enjoy its support. Japan called on the GoI to immediately halt reported human rights violations by military and police officers and address the general climate of impunity in Papua. The United States of America called for the GoI to end prosecutions under Articles 106 and 110 of the criminal code for exercising the internationally protected right of freedom of expression, and re-evaluate the convictions and sentences of individuals prosecuted for those actions. Canada called on the GoI to take steps, particularly in Papua, to increase protection for human rights defenders against stigmatization, intimidation and attacks and to ensure respect for freedom of expression and peaceful protest, including through a review of regulations that can be used to restrict political expression, in particular article 106 and 110 of the criminal code, and the release of those detained solely for peaceful political activities.
The fact that the Government chose not to accept recommendations that are amongst those that are most likely to directly and positively address these human rights violations, speaks to the government’s unwillingness to tackle these violations effectively.
Given the above, the ALRC requests the intervention of the Human Rights Council and its expert mechanisms in order to urge the government of Indonesia to:
- Fully cooperate with and invite the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, as well as the Special Rapporteur on freedom of association and assembly, to conduct country visits to Indonesia, with full access being granted to the Papuan provinces in particular. Both of these mandates have requested visits, and Indonesia’s credibility concerning its assertions made during the UPR, in which it “reaffirmed its absolute and total commitment to…respect and promote freedom of expression,” will be measured by its willingness to take such actions;
- Revise articles 106, 110 paragraph (1) and 160 of the Penal Code in accordance with international human rights laws and standards, and prevent any further abusive use of the law as a tool to target and punish human rights, the media and independence activists in the Papuan provinces;
- Take credible steps to tackle impunity, notably by impartially and effectively investigating all allegations of human rights violations, including the excessive use of force by security personnel that has resulted in the death and injury of protesters as well as activists in Papua, and by punishing those responsible in civilian courts, in a transparent manner.
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
