WHY PAPUAN INDEPENDENCE POLITICAL PRISONERS HAVE REJECTED THE GIVING OF CLEMENCY
By: Selpius Bobii
Abepura Prison, 1 June 2013
“ We don’t need to be freed from jail, but rather we need and demand the freedom of the nation of Papua from the colonizing of the colonial state of the Republic of Indonesia” stated the Papuan political independence prisoners from the colonial state prison of Indonesia on 24 May 2013.
This statement was made by 26 Papuan Independence political prisoners incarcerated at the State prison in Abepura, Papua following their reading in the Cenderawasih Post and Papuan Star local newspapers on
23 May 2013 that the President of the Republic of Indonesia (RI) would be releasing all political prisoners in Papua through the giving of clemency. This news was conveyed by the Vice Chairperson of the Papuan People’s Representative Council (DPRP) Yunus Wonda. According to Wonda in a meeting between the Indonesian President Susilo Bambang Yudhoyono and members of DPRP, the Papuan People’s Assembly (MRP), the Papuan Governor and the Indonesian Minister for Internal Affairs on 29 April 2013, President SBY had promised to release all Papuan political prisoners at the time he visits Papua in August 2013. In response to that news 26 Papuan Independence Political Prisoners stated that they rejected the giving of clemency by the Indonesian President. This article looks at why they rejected the offer of clemency in this way.
WHAT ACTUALLY IS ‘CLEMENCY’, ‘AMNESTY’, ABOLITION’, ‘REHABILITATION’ AND ‘REMISSION’?
‘Clemency’ means to pardon and it is the right and prerogative of Indonesian President to give clemency. It may be a reduction in a sentence, a pardon, or even absolute freedom from being sentenced altogether. Clemency is not a legal action such as a result of an appeal to the Supreme Court or by Judicial Review. Rather clemency is a non-legal action and is decided subjectively by the President. The giving of clemency does not mean the wrong for which the person was imprisoned is done away with (i.e. a wiping of their criminal record) and neither does it mean there is a rehabilitation towards the person convicted. (The reader is referred to the RI national law number 22, year 2002 for further information regarding clemency.) With the giving of clemency the President does not interfere with the law enforcing parties, but rather it is a presidential prerogative right according to the 1945 RI National Constitution.
The submission of a request for clemency may be made by the convicted person, by their legal counsel, by the person’s family based on agreement with the convicted person, and with the exception of prisoners with a death sentence alternatively by families without the agreement of the convicted person (refer Section 6 in the RI National Law No 22, year 2002). A request for clemency may be made for convicted persons on a death sentence, those with life sentences or those with prison sentences no less than 2 years.
‘Amnesty’ also refers to a pardoning or commuting of a sentence, however amnesty is in the form of a statement made regarding a large number of persons involved in a certain criminal action. Amnesty can be given to persons involved in such actions that have either had or not yet had a sentence imposed as well as to those for whom an investigation or interrogation has or has not yet been held. (Details of amnesty under Indonesian law are found at the RI National Law No. 11 year 1954.) The granting of amnesty in the past has occurred in cases involving offenses such as rebellious uprisings or laborers strikes that involved consequences effecting state interests.
Whilst ‘abolition’ means to bring an end to something, that is to abolish. Abolition does not amount to a pardon but rather is an action that puts a halt to the interrogation process and to any criminal claims made against the accused.
‘Rehabilitation’ as a legal term refers to a restoration of the person’s capacities/ abilities, their status and their dignity. It is a restoration of their credibility and their good name. Rehabilitation is a matter for the president to decide upon and occurs within the framework of giving back a person’s rights which they had previously lost due to a legal decision. It occurs following a legal decision if it is later proven that the action for which the suspect was accused was not as was initially thought or even it eventuates that the person was not in the wrong at all. The focus of rehabilitation is in the value of the return of respect to the individual and this is not so much about the application of a certain law but rather depends on the perception of the community in that location.
The final term referred to of ‘remission’ refers to a reduction in a sentence. It might be a total cancellation of their sentence or alternatively cancelling of a part only of their sentence. The person is still considered to have committed a wrong at law. In other words the period of their detention is reduced.
The giving of clemency, amnesty, abolition and rehabilitation are the prerogative and right of the Indonesian President. With the giving of clemency and rehabilitation, the President gives consideration to the deliberation of the Supreme Court (refer to Amendment to the RI 1945 National Constitution section 14 subsection 1). Whereas in the granting of both amnesty and abolition the President gives consideration to the deliberations of the DPR (refer to Amendment to the RI 1945 National Constitution section 14 subsection 2)
WHY DID THE PAPUAN INDEPENDENCE POLITICAL PRISONERS REJECT THE OFFER OF CLEMENCY?
The basis for the rejection of the plan to give clemency is summarized in the statement of the prisoners concerned that:
“ Papuan Independence Political Prisoners have never and will never submit a request for pardon in the form of clemency to the Head of State of the colonial Republic of Indonesia as WE ARE NOT AT FAULT. Precisely the opposite. We demand that the colonial State of the Republic of Indonesia:
1) Apologize to the Nation (people) of Papua for the annexation of the Nation of Papua into the Republic of Indonesia, the consequences of which have given rise to discrimination, marginalization, making of indigenous Papuans a minority and the annihilation of ethnic Papuans and
2) Acknowledge the sovereign freedom of the Nation of Papua.”
Background to the rejection of the plan to give clemency involves what can be summarized in eight points as follows.
Firstly that self-determination is the right of every people/nation as is reflected in the General Declaration of the United Nations (U.N) and within international covenants including the international covenants on civilians and political rights; International covenants regarding economic, social and cultural rights ; the declaration of indigenous peoples rights; and similarly the mandate as stated in the Preamble to the 1945 Republic of Indonesian Constitution.
Secondly, the nation of Papua also has the same right to full sovereignty. Such that on 19 October 1961 at the I Papuan National Congress, the Papuan National Committee declared the ‘Manifesto of the Independence Politics of the Nation of Papua’ as the basis for achieving the status of full sovereignty. That was then celebrated on 1 December 1961 in Hollandia (now called Jayapura) and in all cities throughout the land of Papua.
Thirdly, despite the above declaration, the nation of Papua was annexed onto the Republic of Indonesia through the declaration of the Operation TRIKORA (‘Tri Komando Rakyat’) by the then Indonesian President Sukarno on 19 December 1961; This being followed by a political and military invasion in 1962.
The fourth aspect of background to the decision to reject the offer of clemency, is that the political invasion by RI was realized through an agreement between the Dutch and RI as mediated by the U.N and as orchestrated by the U.S.A on 15 August 1962. This was called ‘ The New York Agreement and was a unilateral agreement made without any involvement of indigenous Papuans.
Fifthly the 1969 ‘Act of Free Choice’ was not carried out in accordance with the International legal stipulations as to how the vote was required to be carried out. With the result that what was supposed to be an ‘Act of Free Choice’ became an ‘Act of No Choice’. Rather than being the determination of the opinion of the Papuan community it was rather a handful of ‘forced votes’ . As a result the ‘Act of Free Choice’ was flawed legally and morally.
The sixth background point to the decision to reject clemency is that the Nation of Papua was never involved in the long struggle to establish the Republic of Indonesia in the first instance, as Papua had its own history.. Furthermore, the Nation of Papua never freely agreed to unite with RI and accordingly the occupation by RI in the land of Papua is both illegal at law and morally flawed; the final background point is that the nation of Papua in terms of culture and its geographical location is so very different to the Malay race. Indigenous Papuans are rather Melanesian peoples of the Negroid race.
CAN THE MABRUK IDEOLOGY OF INDIGENOUS PAPUANS BE PAWNED WITH THE GIVING OF CLEMENCY?
From the Writer’s perspective, clemency cannot be used to pawn the struggle for the liberation of the nation of Papua. Indigenous peoples Mabruk ideology is permanent and will survive no matter what may be. The Mabruk ideology gives motivation to the national freedom movement of Papua and flows within the veins of every Papuan who longs for total freedom. The Independence of Papua is life’s very worth so it cannot be pawned in an offer of any kind from RI. The independence of Papua is the fire of life and the fire of the revolution will never go out. It will live on and will never be extinguished by anyone, by any means or by any power.
The resolve of the Papuan Independence political prisoners is that “We will struggle until the last drop of blood that remains and we will never give up to the regime of the Indonesian Colonizer.” To submit a request for clemency means to ask for a pardon from the President. However the question must be asked ‘Who is in the wrong here?’ such that President SBY would give a pardon. The Papuan Independence political prisoners have done no wrong so we do not need to ask for forgiveness from the Head of State of the colonial Indonesia. We have never submitted a request for clemency to the President of RI and neither have we asked our families or our legal Counsel to submit a request for clemency on our behalf. We would and do emphatically object any move by any party that may wish to make a submission for clemency on our behalf to the RI President.
We are well aware of the process to submit a request for clemency and the conditions that must be fulfilled in such a letter. To prepare such an application would mean we would have to acknowledge that we were wrong, to regret our actions, to acknowledge that Papua is part of RI and to ask for forgiveness/ pardon from the RI President. To receive clemency is to surrender to the regime of the colonizer the Republic of Indonesia and that will never occur from any one of us! To request clemency from our viewpoint is a sign of giving up and in fact a sign of immorality to us. To give up is to be a traitor!
Based on experience with a particular fellow Papuan political prisoner who submitted a request for clemency in 2009, we know the precise wording required of a request to the President for clemency. Particularly for someone with a conviction under treason laws they must firstly include a statement of acknowledgement that they were wrong for what they did; secondly a statement of regret for their actions; thirdly a statement that they will not repeat such actions again; fourthly they must formally acknowledge that Papua is a part of the Republic of Indonesia; Finally to state that because of the above they request a granting of clemency from the President. That individual paid a mere Rp 6000 postage (less than $1) and with the help of the prison staff the application was forwarded to the President through the State court system. The very same system that had judged him and made a decision on his case in the first instance! The President is able to grant the request or reject it after consideration of the deliberations of Supreme Court. In that particular case a year and 4 months later the request for clemency was granted.
Throughout the entire history of the Struggle of the Nation of Papua, only one person presumed guilty under treason laws has ever submitted a request for clemency. For the rest of us,, the granting of clemency from the Indonesian President is a matter of insult towards the Papuan Nation’s Struggle. Again we repeat that the Papuan Independence Political Prisoners do not need clemency; we need and demand the return of the right of liberty of the Nation of Papua that was annexed through a political and military invasion by RI.
WHAT WOULD BE THE POSITION OF THE PAPUAN INDEPENDENCE POLITICAL PRISONERS IF THERE WAS AN OFFER OF AMNESTY?
Amnesty is given by the President RI without the requirement of an application by the concerned prisoners or their families or legal counsel to the President. It is given by the President on consideration of deliberations by DPR and not in response to a request from the prisoner , their legal counsel or family. Amnesty is given not because of some willingness to do good from the Head of State but rather it is in the interests of the State in order to avoid the spotlight of other parties whether domestic or international.
In 1999 the people of Papua experienced the release of political prisoners by the Indonesian President through the giving of amnesty. That occurred as a result of pressure from the international community together from within a number of circles from within Indonesia. For those at the time that were still having their cases processed, the President granted abolition. Amnesty is the giving of pardon without conditions whereas clemency is a form of release with conditions and it was therefore supposedly without conditions that the Papuan political prisoners were released in 1999.
If the Indonesian President at a later time offers to give amnesty to the Papuan Independence Political prisoners, then we will consider at that time whether that will be accepted or not. In 1999 following the release of Papuan political prisoners the government of Indonesia showed they had no true intention of bringing an end to the problems in Papua. Rather the Special Autonomy regulations were forced upon the Papuan community by RI unilaterally with Indonesia deciding that Special Autonomy was the ‘final solution’ for Papua. However now 12 years on the community of Papua has experienced no real and significant changes. Those changes that have occurred with the implementation of Special Autonomy have been rather the heightened levels of discrimination, marginalization, acceleration of Papuans becoming a minority in their own native lands and the annihilation of the ethnic Papuan race.
At the same time as hearing of the President’s decision to give clemency to Papuan political prisoners, we also from behind bars have been following through the printed media that Jakarta is now once again going to force onto the community of Papua a reconstruction of Special Autonomy called ‘ Papuan Special Autonomy Plus’ (otherwise referred to as the ‘Papuan Governance Regulations’). We are well aware that the move to give clemency to Papuan Independence Political prisoners is part of the ‘legitimizing’ of these Papuan Governance Regulations. The Regulations are presently under discussion in Jakarta with a view to soon being applied in Papua.
Let me stress that the Papuan Independence political prisoners will not act in such a way as to see a repeat of the fate of those political prisoners who were released before us in 1999. When their release was ‘welcomed; with the forced application of the 21st Regulations regarding Special Autonomy in Papua.
WHAT WOULD BE THE PREREQUISITES FOR THE PAPUAN INDEPENDENCE POLITICAL PRISONERS TO ACCEPT AN OFFER OF AMNESTY?
We emphatically reject Special Autonomy Plus (or the ‘Papuan Governance Regulations’) and demand that the State of Indonesia immediately cease the unilateral application of these regulations in Papua. As this will not bring an end to the problems in Papua. We as Papuan Independence political prisoners will accept an offer of amnesty only if there are real steps taken towards the restoration of the Nation of Papua through either of two options. The first option being that the State of Indonesia acknowledges and returns Papua’s sovereign independence that was previously annexed into RI. The second option being the commencement of consultations / dialogue between the 2 Nations of Indonesia and Papua to discuss the future as two equal Nation States, 2 countries and for these consultations to be mediated by the U.N or some other neutral state.
The acting of RI on these options is the prerequisite of Papuan Independence political prisoners accepting any offer of amnesty from the Head of State of the colonial Republic of Indonesia at some future date. If this prerequisite is not met by RI as a very real step towards restoring and rehabilitating the Nation of Papua, then any offer of amnesty that may occur towards the Papuan Independence political prisoners will be in vain. As it is difficult for us to receive an offer of amnesty without a true commitment from RI to bringing an end to the problems in Papua. Without bringing an end to the primary problem being the political history of the Nation of Papua. A problems which at this time is having the consequence of annihilating ethnic Papuans in a slow but certain creeping genocide.
The release of Papuan Independence political prisoners from jail alone will not see an end to this problem. Yes we can be released from prison but if RI does not bring an end to the primary problem in Papua as noted above, then such a release of political prisoners will have no meaning for the Struggle of the Nation of Papua. It is better that we endure behind iron bars than we accept such an offer of amnesty in that case. We will rather wait for Indonesia to choose an option that is between either acknowledging the sovereign independence of the nation of Papua; and alternatively commencing dignified dialogue between Indonesia and Papua as equal states mediated by UN or a neutral third party to bring about a solution where there are two states, two countries. Such that in so doing we may all see an end to this period of colonization of the land of Papua by the Republic of Indonesia.
A MESSAGE TO ALL THAT HAVE CONCERN FOR THE PAPUAN INDEPENDENCE POLITICAL PRISONERS
The rejection of the Indonesian President’s plan to give clemency to Papuan Independence political prisoners is not done to weaken the struggle of all those parties who care about the Papuan political prisoners’ situation. We truly appreciate all your efforts in advocacy and campaigning for our non-conditional release. Our statement of position is rather based on principle and gives meaning to the very advocacy and campaigning efforts of yourselves who care about the situation of Papua. Such that in the end we the Papuan Independence political prisoners might indeed walk out through the prison door , but rather heading towards the liberation of the Nation of Papua from the colonization of RI.
Through our statement of position we want to convey that the Struggle of each and every one of you is not about the release of political prisoners from some tiny jail. Rather the primary struggle of us all is the Struggle for the liberation of the Nation of Papua from that prison that holds in detention all the people of Papua. The prison of colonization by the State of Indonesia.
The release of Papuan Independence political prisoners from jail will never bring an end to the primary problem in Papua which is the political history of our Nation. The primary source of the conflict from the beginning has been the annexation of Papua into RI through the political and military invasion. So let us unite our ranks such that we can get close enough to make a difference to this problem. By undertaking real steps to bring an end to this covert and horrifying humanitarian emergency faced by the people of Papua. All those who care about Papua can play a part in helping us to save the Nation of Papua from marginalization, discrimination, being made a minority and the slow-moving but certain genocide occurring against the Papuan ethnic race.
By Selpius A. Bobii
General Chairperson
Front Persatuan Perjuangan Rakyat Papua Barat
And Papuan Independence Political Prisoner in Abepura Prison, Papua
