JAKARTA, Public Relations of the Constitutional Court—The preliminary examination hearing of the Criminal Code (KUHP) for Case No. 76/PUU-XVII/2019 was held by the Constitutional Court on Monday (2/12/2019). The Petitioner is Forkorus Yaboisembutformer chairman of the Papua Customary Council of 2007-2015, with attorney Jimmy Monim.

The Petitioner objected to Article 104, Article 106, Article 107, Article 108 in conjunction with Article 87 and Article 88 of the Criminal Code on the Papuan Indigenous Peoples in West Papua. The Petitioner also filed an objection to a maklumat (announcement) of the Chief of the Indonesian Republic of Papua Regional Police on the Security and Public Order, which consists of 6 attachment points, especially the third point that reads, "Everyone is prohibited from carrying out activities that can separate part and territory of the Unitary Republic of Indonesia and those who commit conspiracy" as regulated in Article 104, Article 106, Article 107, Article 108 in conjunction with Article 87, Article 88 of the Criminal Code in the context of Papua\'s history. 

The Petitioner believes that these articles indicate a remaining dispute on the annexation of the of the country\'s sovereign territory. The continuation of annexation through the New York agreement and its follow-up (Pepera or Act of Free Choice and the UN Resolution of 2504) as the basis of treaties for Indonesia until today. "These articles stipulate treason, as the legacy of the Dutch colonials, are the root causes of human rights violations in various types and forms suffered by the people of West Papua until today. Therefore, this petition was submitted against the articles of the Criminal Code to be clarified and confirmed by Law of the Republic of Indonesia Number 24 of 2000 concerning Treaties through the judicial review mechanism of the Constitutional Court of the Republic of Indonesia," said Jimmy Monim.

The Petitioner argues that the first through fourth amendments to the 1945 Constitution Article 28G paragraph (1) reads, “Each person is entitled to protection of self, his family, honor, dignity, the property he owns, and has the right to feel secure and to be protected against threats from fear to do or not to do something that is part of basic rights.”

The judicial review petition of Article 104, Article 106, Article 107, Article 108 in conjunction with Article 87 and Article 88 of the Criminal Code represents the Papuan Indigenous Peoples’ objection to those norms because they contradict Article 28G paragraph (1) of the 1945 Constitution in the first through fourth amendments in one document from October 17-19, 2011.

"The Papuan Indigenous Peoples have organized the Third Congress of the people of West Papua in Jayapura with the declaration of every Papuan nation in West Papua. There is a letter of approval from the Government of Indonesia, whose copy is attached, and [it] has fulfilled the general requirements of a treaty in the one-sided declaration and must be protected by the Indonesian Government in accordance with Article 28G paragraph (1) of the 1945 Constitution," Jimmy explained. 

Panel chairman Justice Manahan M. P. Sitompul observed the petition’s format and advised that it includes the Court’s judicial review authority. In addition, he believed that the petition had not include the Petitioner’s legal standing. “The legal standing must be elaborated. [It is laid out] in Article 51 of the Constitutional Court Law. After the reasons (for the petition) are elaborated, then the petitum is. [You] may observe the format of the previous petitum in petitions or decisions of the Constitutional Court,” he said.

Constitutional Justice Enny Nurbaningsih observed the title. "The title should be able to explain the petition. The title made by the Petitioner is the indigenous Papuans’ objection to the Criminal Code. However, Mr. Jimmy as an advocate knows that the Criminal Code does not only apply in indigenous Papuan communities, but to the entire Indonesia, the Unitary State of the Republic of Indonesia including Papua. So, everything applies. Because of that, the title should also be revised if you want to examine the articles," she suggested.

"Mr. Jimmy also has to see if there are Constitutional Court decisions related to Articles 104, 106, and so on so that later it will not turn out that someone has already reviewed them and they have been decided by the Court. The goal is so that Mr. Jimmy can see what is different between the current review and the previous one. Observe it later, if there are any Constitutional Court decisions [related to that]," she said. 

Constitutional Justice Arief Hidayat observed the Petitioner’s identity. "The Petitioner’s identity should be directly stated as an Indonesian national as there is no Papuan nationality. Then, in relation to legal standing, is this Petitioner an individual citizen or an indigenous people’s leader?" he asked. (Nano Tresna Arfana/LA)

Translated by: Yuniar Widiastuti