Conviction History of Boven Digoel Regent Candidate Resurfaced

Expert for the Respondent, Feri Amsari testifying at the evidentiary hearing for Case No. 260/PHPU.BUP-XXIII/2025 on the 2024 Boven Digoel regent election results dispute, Thursday (2/13/2025). Photo by MKRI/Teguh

JAKARTA (MKRI) — The Constitutional Court (MK) held the evidentiary hearing for Case No. 260/PHPU.BUP-XXIII/2025 on the 2024 Boven Digoel regent election results dispute on Thursday, February 13, 2025. The hearing for the case was presided over by Deputy Chief Justice Saldi Isra and Constitutional Justices Arsul Sani and Ridwan Mansyur on panel 2. Controversy surrounding the conviction history of Boven Digoel Regent Candidate 3 Petrus Ricolombus Omba during his time in the military reemerged at the hearing.

Regent Candidate Pair 4 Hengki Yaluwo and Melkior Okaibob (Petitioners) presented Mompang Lycurgus Panggabean as an expert to deliver a statement on Petrus's conviction status from the perspective of criminal law. Panggabean stated that there are three elements of the principle existing in Article 7 paragraph (2) letter g of Law No. 10 of 2016 in relation to criminal law. The three elements are (i) having never been a convict based on a court decision that has obtained permanent legal force due to a criminal act that is given a penalty with imprisonment of 5 (five) years or more, except for those convicted of committing criminal negligence and political criminal offenses in the sense of an act declared as a criminal offense in positive law only because the executant have political views that are different from the regime in power; (ii) for ex-convicts, having passed a period of 5 (five) years after the former convicted has finished serving a prison sentence based on a court decision that has permanent legal force and has honestly or publicly announced his background as a former convict; and (iii) not being a criminal of recurrent crimes.

Panggabean also noted that the Relevant Party should be responsible if the police clearance certificate (SKCK) or statement of never being a convict issued by a district court turned out to be false. He argued that an ex-convict whose sentence is less than 5 years still has to make a written statement of never committing moral misconduct in order to apply for an SKCK.

"Essentially, there has been a criminal act of document falsification, as I cited earlier in Articles 263 and 266 of the Criminal Code, [which is] entering a false statement in an official legal document," he argued.

Panggabean brought up several Dutch Supreme Court Decisions (Arrest Hoge Raad) to comment on the yearslong use of a certificate containing false information. Using a falsified or forged certificate in a manner implying the certificate to be original and authentic is deemed as an act of document falsification according to Dutch Supreme Court Decision dated February 9, 1914. Moreover, the Dutch Supreme Court Decision dated January 14, 1914 decreed that the abuse of such certificates to intentionally manipulate others also falls under the category of document falsification.

Distinction between Civilian and Military Criminal Law

The Boven Digoel Elections Commission (KPU) as the Respondent presented Feri Amsari to testify regarding the Petitioners' argument on Petrus's conviction history. Feri asserted that military crimes differ from civilian crimes, as the former do not necessarily translate to the latter.

"Nevertheless, the military and the civilian are different, hence what takes place in a military criminal [proceeding] differs fundamentally. Since the legal objects are different, the legal subject must also be treated differently, especially in another domain, such as politics," he argued.

He added that the military criminal law has a role in upholding discipline, security, and ethics in the armed forces. A military criminal sentence may be ruled to a person in order to instill the value of discipline in the forces. However, such crime does not automatically mean a crime in the civilian world.

"So, that is a matter of a domain different to that of the civilian," Feri stated.

Feri referred to Constitutional Court Decision No. 27/PUU-V/2007 which in essence prioritizes the principle of "what is the same shall not be discriminated against, and what is different shall not be treated equally." He affirmed that the punishments in the civilian world are not affected by those in the military one, especially in military disciplinary matters.

"The political right of a former military officer who has been convicted by the military criminal law should not be a benchmark to punish or impede someone in their political career as a civilian," he added.

Furthermore, Feri mentioned the tale of Chabiras and Leodamas as recounted by Demosthenes 2400 years ago. Chabrias, a former military officer who was loved by the people but discharged for negligence during his service, ran for public office. He was elected due to his fame, much to the dismay of an oligarch-backed politician called Leodamas. Leodamas dug up Chabrias' history and aired his political enemy's moral value violation to the public. As a result, Chabrias was then retired from his public administration position.

"The tale of Chabrias has repeated in various political events, in which certain errors become grounds to eliminate the rights of certain parties," Feri concluded.

Confinement, Not Imprisonment

The Relevant Party, Regent Candidate Pair 3 Petrus Ricolombus Omba–Marlinus presented an expert named Aswanto to explain about Petrus's conviction status. Aswanto stated that it is irrelevant to question the originality of the statement letter of never being imprisoned as alleged by the Petitioners. He argued that Petrus had been merely confined, not imprisoned.

"In the requirement form filled out by the Relevant Party, we can see the form. The form asks, 'have you ever been imprisoned?' When he [Petrus] did not check [the box] for having been imprisoned, it was not wrong, since he was never imprisoned. He was merely confined," Aswanto explained.

Previously, Aswanto described the difference between imprisonment and confinement; someone sentenced to 1 year or more is said to be imprisoned, while another detained for less than 1 year is categorized to be confined. The distinction exists in relation to the matter of human rights and the completion of administrative forms. In practice, the policy in general excludes those receiving imprisonment, not confinement sentences.

"Someone sentenced to under one year [of prison] is not required to fill out the form declaring whether he was a detainee or not, unless the form specifies 'imprisonment or confinement'" Aswanto argued.

Aswanto furthermore asserted that the case had nothing to argue since Article 7 paragraph (2) of Regional Election Law only invalidates those convicted of acts carrying a sentence of 5 years or longer. He explained that the Relevant Party had merely committed an act of desertion in the civil context.

"We cannot tolerate if he [Petrus] deserted in a time of war, since that pertains to national security. However, if the desertion is in a time of peace, in my opinion, [that] should be commended because it can reduce the state expense," he added.

He reiterated that Petrus was confined and not imprisoned, as dictated by Article 7 paragraph (2) of the Regional Election Law which could also be examined in one of the Constitutional Court decisions. In other words, from the criminal law perspective, it is unnecessary to debate or even allege the submission of a forged document.

"There is no forged document used, instead, the documents complied with the regulation. It would rather be false if he stated to have been imprisoned for a criminal act punishable by [a sentence of] 5 years or more. The criminal act of desertion committed by him is punishable by [a sentence of] 2 years and 8 months." he insisted.

Thus, Aswanto asserted that moral violation stipulated in Article 7 paragraph (2) letters g and i of the law did not merit further discussion, as the fundamental principle "criminal sentence of 5 years or more" contained in the article was not fulfilled.

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Conviction History of Boven Digoel Regent Candidate Resurfaced