Accuracy in Legal and Policy Orientation in Papua
Regarding Papua’s demand for freedom, leaders of state institutions should make a distinction between peaceful demands for freedom and armed demands.
Didie SW
Policymakers in Jakarta have not yet fully heeded the principle of accuracy in determining the legal and security policy orientation for Papua.
As a result, it has not only caused confusion among public officials but also sacrificed the public and security personnel in the field. Just take a look at the policy and legal orientation related to armed criminal groups (KKBs) allegedly carrying out acts of violence against the public and security forces. A recent example is the April 2021 fatal shooting of the head of the Papua State Intelligence Agency (Kabinda), Brig. Gen. I Gusti Dany Nugraha.
Responding to the incident, People’s Consultative Assembly Speaker Bambang Soesatyo asked security forces to deploy fully and crush the KKBs in Papua. “Totally crush it first. We discuss the issue of rights later,” he said.
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Coordinating Political, Legal and Security Minister Mahfud M.D. said KKBs were terrorist groups. “Based on the definition of Law No. 5/2018, the activities done by KKBs, their organizations and affiliates constitute a crime of terror,” he said.
Meanwhile, Indonesian Army Chief of Staff Gen. Dudung Abdurachman recently said that the Army task force assigned to Papua should not consider KKBs as the enemy. “Invite them to join in developing Papua, because they are fellow citizens,” he said.
A unified stance and accurate choice of nomenclature is very important for high-ranking public officials in determining legal and policy orientation.
Origin of terrorist status
It was the Indonesian Embassy (KBRI) in Germany that first proposed the designation and inclusion of the Free Papua Organization (OPM) on the list of suspected terrorists and terrorist organizations (DTTOT). This was conveyed through the Classified News of the KBRI in Berlin on 7 Feb. 2021, long before the fatal shooting of the Papua Kabinda. This suggestion stemmed from the view that acts of terrorism in the European Union (EU) and the Republic of Indonesia shared similar elements.
The activities of the OPM were seen to have some semblance with the activities of terrorist groups in the EU. They wanted to cut off international support, including external funding for the OPM, by attempting to get the group included on the terror groups lists of the EU as well as the United Nations. Several ministries and state institutions discussed the proposal internally.
However, on its official announcement, the government used the term “KKB” instead of the OPM. In fact, the embassy’s proposal clearly indicated that the intended target was the OPM: “The OPM is designated as a separatist group (not a KKB) and is included on the List of Suspected Terrorists and Terrorist Organizations,” it stated.
Supriyanto
The question is, which one is correct? The OPM or KKB? The two terms have different meanings and implications in terms of law enforcement and policy implementation. The OPM is the name of an organization that is pushing for an independent Papua. The armed wing of this organization is the West Papua National Liberation Army (TPNPB), which claimed responsibility for the fatal shooting of the Papua Kabinda.
KKB is the abbreviation of a term the government uses to designate an unidentified group that uses weapons in committing crimes.
Other institutions like the State Intelligence Agency (BIN) uses the term armed separatist group (KSB). Several top military officials in Papua even use the term armed separatist criminal group (KKSB), which combines both terms.
Importance of accuracy
The government seems to lack careful consideration in determining its policy orientation, as reflected in the discrepancy in these terms. The OPM and the TPNPB aim to break away from the country, whereas terrorism as defined by Law No. 5/2018 refers to a criminal action for the purpose of causing terror or widespread fear in society.
When the government gave the group “terrorist organization” status, whether as KKB, KSB or KKSB, this was actually the equivalent of labeling a nonexistent organization, because there is indeed no organization in Papua using these names.
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These abbreviated names are more like the term riot movements (GPK) that was once applied under the New Order to anyone who opposed the state in Aceh, Papua and East Timor, without considering the scale of the threat they posed.
The naming convention has a specific policy implication. Bambang Soesatyo’s statement on “totally crushing”, which does not refer to a specific law, can be interpreted as the state’s policy orientation to take harsh action by eliminating the target, the KKB. This approach describes the KKB as an “enemy of the state” that threatens sovereignty, territorial integrity and national security.
The policy derived from this statement is military deployment. As indicated by Bambang, “The time has come for the state to take stern action by deploying all forces at its disposal.”
Didie SW
Deploying the military must be based on a state policy and decision (Article 7, Paragraph 3 of the Indonesian Military Law), and may not be executed by only one institution, the executive or the legislature alone. State policy and decisions are made under laws, including international humanitarian law, also called the rules of war.
During a war, soldiers in the field face with the choice of “kill or be killed”. When a non-international armed conflict occurs, the problem that frequently arises is civil war, with casualties among civilians who are not directly involved in the hostilities.
It is this accuracy that was ignored in Bambang Soesatyo’s statement. Mahfud M.D. was more in line with the policy and legal domain of the criminal justice system for using KKB to refer to groups considered “terrorist”, their actions deemed as “terrorism” as per Law No. 5/2018 on eradicating the crime of terrorism.
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As terrorism is classed as a “criminal action”, the appropriate method is to enforce the law by mobilizing the police, the prosecutor’s office and judicial institutions, instead of waging a war against “national liberation”. In choosing this, state apparatuses may not think and act as though this was a war by completely crushing the target as if it were the enemy, but rather, they should embrace the target as citizens. On this point, Dudung’s statement was more accurate.
As for those alleged or suspected of committing the crime of terrorism, the state has a duty to prosecute them as defendants through a court trial. Whatever action is taken, the state has to follow due process, including giving them the opportunity defend themselves in court based on the presumption of innocence.
The offense committed by one or two individuals can be blamed only on them based on the principal of individual criminal responsibility, rather than on the responsibility of a group, organization or institution, unless they are legally proven guilty of committing a corporate or organizational crime. With this explanation and in view of the initial designation of terrorist status, inaccurate selection of the terminology will only confuse the relevant ministers and institutions. This can have a negative impact on the safety of security personnel as well as the public.
Future path
In the future, policymakers should be more serious in responding to the security situation in Papua. Statements that are not based on results of coordination and institutional studies should be avoided. The political elite should exercise emotional restraint to avoid prompting excessive use of force that claims lives.
Before making official statements, they should reaffirm the conceptual framework and maintain harmonious inter-elite standpoint among state institutions so the resulting policy conforms to the good governance principles of accuracy and impartiality to avoid any misuse and deviation in the field.
If the elite consistently uphold the 1945 Constitution, they should always remember the three principles stipulated in Article 1. The “republic” mentioned in the first principle has three meanings: equal citizenship, rule of law and human dignity.
The path of war will only end in calamity.
“Sovereignty [is] in the hands of the people” in the second principle means that the state is administered on the basis of the people’s rights. The principle of “constitutional state” in the third principle refers to the doctrine of limiting the use of arbitrary power.
Whatever the legal and policy orientation to respond to the security situation in Papua, state leaders should observe these three principles because they are contained in the entirety of the judicial system that was changed during the reform period. Equally important are changes in mindset and behavior. Changing laws will be of no use if the ways of thinking and acting remain the same.
Regarding Papua’s demand for freedom, leaders of state institutions should make a distinction between peaceful demands for freedom and armed demands. This distinction is vital to prevent rights violations by the state or rights abuses by non-state actors.
The coercive approach should be the last resort to prevent a large number of casualties, if this is really necessary in democratic society, and it should be proportional and legally accountable.
Usman Hamid
It must not be forgotten that leaders of nations and states in the world, including Indonesia, that initially chose the path of war have, in the end, opted to take the peaceful path through granting special autonomy, self-government, referendums, and peace agreements that have saved a lot of lives, both civilian and military. The path of war will only end in calamity.
Usman Hamid, Lecturer, Jentera Indonesia Law School; expert council, Indonesian Advocates Association (Peradi) RBA
This article was translated by Aris Prawira.
