THE CONCEPT OF COMPLICITY (DEELNEMING) IN THE CRIMINAL ACT OF TREASON ACCORDING TOINDONESIAN CRIMINAL LAW (A Case Study about Ammunition Selling Act Committed By Indonesian National Army and Police Officer to the Separatist Group in Papua)
National Army and Police Officer to the Separatist Group in Papua) UNDERGRADUATE THESIS
This undergraduate thesis is submitted as one of the requirements to obtain the Bachelor degree of Law at Faculty of Law
Universitas Muhammadiyah Yogyakarta
FACULTY OF LAW
UNIVERSITAS MUHAMMADIYAH YOGYAKARTA 2017
Name : Muhammad Safrullah Duwila
Student Number : 20110610096
Faculty : Law
Major : International Program for Law and Shariah Field of Study : Criminal Law
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I hereby declare that the thesis under title “THE CONCEPT OF COMPLICITY (DEELNEMING) IN THE CRIMINAL ACT OF TREASON ACCORDING TO INDONESIAN CRIMINAL LAW”, its content is truly my own work and I did not do plagiarism or quotation in ways that are inconsistent with the prevailing ethic in the scientific community. On this statement, I am ready to face the risk with any sanctions imposed to me in accordance with prevailing regulation, if in the future found a violation of scientific ethics, I am willing to accept the sanctions.
Yogyakarta, January 5th, 2017
Written by
Name : Muhammad Safrullah Duwila
Student Number : 20110610096
Faculty : Law
Major : International Program for Law and Shariah University : Universitas Muhammadiyah Yogyakarta
Yogyakarta, January 5th, 2017
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The best revenge is by improving yourself.
(Ali bin AbiThalib RA)
Keep yourShalat, when you lose it, then you will lose the other.
(Umar bin Khattab)
I will find the knowledge just because of Allah, and I will not find it if
besides for Allah.
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supports me with everything they had. My beloved mother, Hairiah D. Hanafi, who always patiently remind me to finished my thesis immediately. Also my greatest father, M. Muchlis Duwila, who always tried to fulfill all the needs that I need during my college processed until this thesis completed.
Also I dedicate this thesis for my three beloved sisters, Balqis Safa Chairunnisa Duwila, Jasmine Dara Safitri Duwila, and the littlest sister, Qory Shadiqa Qhaisarah Duwila. They are my motivation, and their smiles are my best spirit to complete this thesis. Therefore, it will be dedicated for them (my family).
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the world and everything in it. As the God who bless and gave His mercy to the
author to complete this thesis by the title “The Concept of Complicity
(Deelneming) in The Criminal Act of Treason according to Indonesian Criminal Law”. This thesis is completed and submitted to fulfill one of the requirements to achieve the academic degree of Faculty of Law, International Program for Law and Syariah, Universitas Muhammadiyah Yogyakarta.
In the finishing process of this thesis, I sincerely give my regards and big thanks for everyone who has given the advice, guidance, aid, and also support. Firstly, I give my biggest regards to my parents, M. Muchlis Duwila and Hairiah D. Hanafi, who always supports me in any conditions, and never stop to pray for my college, especially in motivate me to finish this thesis.
I also give my biggest regards and big thanks to my both great advisor, Mr. Dr. TrisnoRaharjo, S.H., M.Hum, and Mr.M. EndrioSusila, S.H., MCL, who has given their best advices and guidance to help me in order to accomplish this thesis.
And also I do not forget to give the biggest thanks for IPOLS family, the Director of IPOLS, Mr. Nasrullah, H., S.H., S.Ag., MCL., Mr. EndrioSusila, S.H., MCL., Mr. Iwan Satriawan, S.H., MCL., Ph.D., Mr. Yordan Gunawan, S.H., Int.MBA., and the other IPOLS lecturer, also big thanks to IPOLS student, especially for batch 2011, I say thank you for our brotherhood until today.
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Finally, the author recognized that in the process of finishing this thesis, certainly there are contents which are not perfect, and enable some errors occurred. Therefore, the author hopes the readers can give suggestions or advices to improve its content in order to make this thesis as one of good thesis example.
Yogyakarta, January 5th, 2017
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APPROVAL PAGE... ii
VALIDATION PAGE... iii
DECLARATION OF AUTHENTICITY... v
MOTTO... vi
DEDICATION PAGE... vii
PREFACE... ABSTRACT... ix xi CHAPTER I INTRODUCTION... 1
A.Background... 1
B. Problem Statement... 5
C.Objective of Research... 6
D.Benefit of Research... 6
CHAPTER II LITERATURE REVIEW... 8
A.Overview of Deelneming... 8 1. Deelneming Terminology... 8
2. Definition of Deelneming... 10 3. Forms of Deelneming... 13
B. Overview about the Crime of Treason (Makar)... 34
1. Definition of Treason... 34
2. Forms of Treason in Indonesian Penal Code... 36
CHAPTER III RESEARCH METHOD... 41
A.Type of Research………. 41
B.Sources of Data……… 41
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Organisasi Papua Merdeka... 44
B. Separatist Movement of OPM as the form of Treason Act that threaten The State integrity... 1. OPM as the Separatist Group... 2. Separatist movement as a form of Criminal Act of Treason………. 46 46 50 C.The relation between “Ammunition selling act by TNI-POLRI personal officer to the separatist group (Organisasi Papua Merdeka)” with “The concept of complicity in a criminal offense” according to Indonesian Penal Code………. 52
D.The suspect's position as the State Apparatus with “The threat of Aggravating Sentence”according to Indonesian Criminal Law……... 57
CHAPTER V CLOSING... 59
A.Conclusion……….. 59
B. Suggestion... 60
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them (OPM) in case of orginized their actions to be out from NKRI, especially to
Indonesian Army and Police, also to “non-Papuan” who living in Papua. The main problem in this case is how their (OPM) ammunition needs was always completed. It was proven that one of main problem why their ammunitions were completed is because there are some personal officers of Indonesian Army and Police who were sell the ammunition. At the end of year 2014, Indonesian Police doing arresting towards some personal officers of Indonesian Army and Police who were doing the transaction of ammunition selling directly to the separatist group. Those facts creates some questions about the legal position of ammunition selling act to the separatist group according to Indonesian Criminal Law, and the legal consequences toward the suspects who also as the State Apparatus. The methodology used in this research is normative research and using conceptual approach for legal research analysis.This research aims to give more understanding about the legal concequencesupon the act of ammunition selling to the separatist group. Also to be a lesson and special concern for Indonesian State Apparatus including Indonesian Army and Police officer to donot using state’s facilities arbitrarily. The result of this reseach is has two conclusions were conclude that, firstly,the act of ammunition selling committed by personal officer of Indonesian Army and Police is qualified as a form of “Complicity in a Criminal
Act”, and secondly, the suspects whose are also state apparatus can be imposed additional sentence; that is Aggravating Sentence. From this case, thegovernmentshould investigate deeply about the practice of ammunition trading committed by personal officers of Indonesian Army and Police,and processing the law enforcement immediately and completely in accordance with the Criminal Law that applicable in Indonesia.
KEYWORD: Ammunition Selling Act, Ammunition Trading, Concept of
Deelneming, The Concept of Complicity in A Criminal Act, Aggravating Sentence.
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CHAPTER I INTRODUCTION A. Background
Today, the situation in Papua is getting scary for everyone living there, especially for the outsiders who reside and work in Papua. In the period of last eight years the shootings often occurred in the areas which are rich in natural resources, especially in the mountainous areas such as at the district of Lanny Jaya and Puncak Jaya.
The actions of armed separatist group have occurred since August 2008. As we know that those cases included flag rising, armed attack on the police post and ambushed a police patrol. Since the beginning of January 2009, there have been seven cases of attacks allegedly committed by the papua separatist group known as Organisasi Papua Merdeka (OPM)1 in Tingginambut region, Puncak Jaya, against the police station, as well as the military post. The last incident is a blocking action against the head of Brimob2 corps group when they were supervises that area. In that incident, two officers of Brimob corps were dead. Then, in July 2009, for example, the media reported that there were activities that allegedly as OPM attacked the area of PT. Freeport in Tembagapura, Mimika.3
The Police failed to stop armed action that occurred more than three weeks, so that the incident attracted national attention. In the action, three
1
OPM is the name of separatist group in Papua.
2
Brimob is the name of special corps in Indonesian Police.
3Fathoni Hakim, “Perjanjian keamanan”,
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people were killed consisting of two employees of PT. Freeport and a Police officer. Indonesian National Army (TNI) Commander and the Head of Indonesian Police (POLRI) strongly suspected that there was OPM involvement in that action. Furthermore, the incident in Kampung Wembi, Keerom, on July 25, 2009. Lamberth Meukiki who was claimed as a Commander of OPM in Keerom region raising Bintang Kejora flag, and escorted by their armed groups. They questioned the legality of Papua becoming the part of Indonesia. Lambert action was successful, until he was pulling down the flag and runaway into the forest.4
The movement of armed groups that was suspected as OPM also extended to Serui areas, and also Yapen Waropen, the areas which were considered as the basis of NKRI supporters. Today it is estimated that there are armed groups that take action in Serui region with enough weapons. They have mortars and grenades. OPM in Serui area has power equal to Serui Police Patrol. In a moment, the police confiscate several evidences from this group, like four long barreled weapons, one pistol, eight rounds of SS1 weapon ammunition, three rounds of LE ammunition, three rounds of moser ammunition, and two rounds of revolver ammunition.5
Also the shooting on January 28th, 2011, that killed Sukarno, an officer of Brimob corps of Papua Local Police (Kepolisian Daerah Papua), and the offender robbed the arsenal weapon from the victim. And then, the shooting on October 24th, 2011 which killed two Brimob corps officers of POLRI and a
4
Ibid
5
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Brimob corps officer of Papua Local Police, and then an attack to the Police Station in Pirime District on January 28th 2012 which killed three officers of Pirime Police Sector, also confiscation of guns on March 8th 2012 which killed Laode Alwi as a personnel of TNI 753/Avt Pos Ilu.6
In 2014, several attacks occurred including an attack against patrol police in Nugume Village at Pirime District on July 28th 2014 which caused eight police officers were shot and two of them died and also eight guns seized. Then on August 1st 2014, there was an attack to an officer of Battalion 756, Rois, at the corner of airport in Pirime district, and also other cases such as an attack against the group of Lanny Jaya Regency Secretary, Christian Sohilait, in Wuringgame village, Jiwili district, which resulted an officer
Brimob Corps who are doing escort, Sukardi got a bullet splinters.7
Almost every month, there are shooting cases which are committed by this Papua separatist group, or Indonesian Police called as Armed Criminal Group (Kelompok Kriminal Bersenjata), and often people die because of them.
The latest case which hit the security forces occurred on January 1st 2015 at Utikini village at Mimika District, Papua Province. Armed Criminal Group (KKB) led by Ayub Waker killed two Brimob Corps officers, namely Riyan Hariansyah (22) and M Adpriadi (22). They were killed and died after
6Liputan6, “Duo Rambo Penembak Polisi di Papua ditangkap”,
http://news.liputan6.com/read/2124824/duo-rambo-penembak-polisi-di-papua-ditangkap, accessed on 4th April, 2015 at 8.25 pm.
7Regional Kompas, “Polda Papua Tangkap 2 Pelaku Penembak Aparat di Lanny Jaya”,
http://regional.kompas.com/read/2015/01/28/01533771/Polda.Papua.Tangkap.2.Pelaku.Penembak. Aparat.di.Lanny.Jaya, accessed on April 8th, 2015 at 9.12 pm.
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being shot. At that time, a security official of PT. Freeport Indonesia, Suko Miartono (34) also died horribly because of gunshot and jab wounds on his body.8
Shooting cases until the victim were killed was not disappear yet from the people memories, now more shootings committed by armed criminal groups (KKB) appear. The offender shot two civilians in Popome District, Lanny Jaya regency, Papua Province, Thursday (29/1) at around 07.30 am, until they had to get the intensive treatment at Tiom Hospital, and they were referred to the Hospital in Wamena, Papua. The head of Papua Police Region spokesman, Patrige Renwarin said, besides shooting the two civilians, that armed group also burned the excavator. The second victim of shooting is Gurik Murip (25). He suffered a gunshot in the right arm. Other victim is Markus (26), an employee of PT. Nirvana.9
It has widely been recognized that OPM is responsible for all attacks. Free Papua Organization was established in 1965 aiming of help and carrying out the overthrow of the current government stands in the provinces of Papua and West Papua, formerly called Irian Jaya, to be free and removed from Indonesia, and rejecting economic development and modernity.10
8
Antara News, “Oknum TNI Jual Amunisi”, https://antaranews.com/2015/01/29/oknum-tni-jual-amunisi-nyawa-semakin-mudah-melayang, accessed on April 10th, 2015 10.10 pm.
9 Ibid.
10
Gunawan, “OPM Sebuah Pemberontakan”, published on July 3rd, 2014,
https://cutatangungun.wordpress.com/2014/07/03/organisasi-papua-merdeka-opm-sebuah-pemberontakan, accessed on April 4th, 2015 at 8.30 pm.
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The Free Papua Organization group often made attacks to the security forces (Indonesian Army and Police) and civil societies who support Indonesia Government.
Regardless of any reasons that underlying their actions, the OPM’s actions are openly against the government and also disrupt the government in the regencies/cities in Papua. Therefore, the acts which committed by that group can be categorized as a form of separatism or rebellion that exactly violates the Indonesian Penal Code. But, there are some things that should be questioned about the existence of that group (OPM) who until today always create discomfort situations in the community with the attacks that they were committed to the security forces, government officials, and civil society. The shootings that occurred every month makes us wonder, where they get the weapon and ammunition they use in running their attacks from, and why the availability of their ammunition is abundant during armed conflict with Indonesian Army or Police.
B. Problem Statement
From the explanations above, the problem has been formulated as follows:
1. What is the legal position of ammunition selling act to the separatist group according to Indonesian Criminal Law?
2. Can the punishment be aggravated upon the ammunition selling act committed by Indonesian Army and Police?
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C. Objective of Research
The intents and purposes of this research are:
1. To clarify the legal position and legal consequences upon the act of ammunition selling to the separatist group.
2. To be a lesson and special concern for Indonesian State Apparatus including Indonesian Army and Police officer to do not using state’s facility arbitrarily.
D. Benefit of Research
1. Theoretically
This research will give at least a clear description and also be a reference to everyone especially for the law students who want to know the legal position and the legal consequences upon the similar cases with the ammunition selling case toward the separatist group. 2. Practically
This research will give an insight/understanding to the officer of Indonesian National Army and Police in order to know clearly about the sentence consequences if they abused the equipment/facility belonging to the state, which of course Indonesian National Army and Police officer may use weapons facilities provided by the state to carry out its duties and functions as well as possible in accordance with what has mandated by the 1945 Indonesian Constitution, and the other benefit of this research is as well as providing education to the society
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so that society can also indirectly play a role in overseeing or supervise the works of Indonesian Army and Police officer who served in the field.
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CHAPTER II LITERATURE REVIEW
A. OVERVIEW OF DEELNEMING
1. Deelneming Terminology
Translation of the term "deelneming" according to scholars’ views
shows that there is no conformity in using deelneming terminology. Satochid Kertanegara for example, uses the term deelneming as "participating", Schravendijk as "complicity", Tresna: "involving", Karni: "taking part", Utrecht "participate", Wirjono Prodjodikoro: "participant", while Moeljatno: "complicity". The absence of similar view to the use of the term "deelneming" is a consequence of the absence of official translation by the maker of Indonesian Penal Code. Similarly, Indonesian Penal Code does not formulate a definition of "deelneming or
complicity”.11
In this deelneming studies, it is determined about the conditions set forth in the Indonesian Penal Code, which must be fulfilled so that the accomplice of the criminal or the participants of the criminal can be imprisoned. If in a criminal case, few people are considered to be involved, the responsibility of each criminal participant will not be the same, but will vary, depending on the relation of the criminal case. For example, there is a criminal act committed by several people together, so that the relationship between them and the events are the same, but there
11
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are also cases where a person committed a crime, while others only help, or there is someone who plan to commit a criminal act simply by asking someone else to do it, or etc. Thus it is understandable that every relationship in criminal act is not always the same. Therefore, the criminal liability of each participant of criminal act is not always the same in determining the liability of each person who is a participant in a criminal act committed. In other words, the rules on deelneming will only be used if there is more than one person who committing the crime.12
In doctrine, deelneming can be divided into two groups, namely:13 a. Stand independently (zelfstandige deelneming) in which each
participant was asked to be responsible for their own action
b. Those who does not stand independently (onzelfstandig deelneming or accessoire deelneming), where the responsibility of the participants are depend on the other participants.
In the past, the deelneming studies was not so important, because criminal law at the time did not question who should be convicted, what is important for the society is the "compensation" or "punishment" itself. Roman penal law was the first to pay attention. It can be seen from the term "minister" besides "actor", each of which can be imprisoned.14
12
Ibid
13
Ibid, page. 119
14
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Furthermore, deelneming studies originally an idea of Von Veurbach. He divides the "participants" in two parts:15
a. Those who immediately tried to commit crime which is referred as "Auctores" or "Urheber".
b. Those who only help the act of crime mentioned in point (1) above and referred as "Gehilfe".
2. Definition of Deelneming
Incident or criminal act, or better known a criminal offence in certain things can be done by everyone and at the same time or other times can also be done by several people simultaneously. In other words, a criminal action can be done by several persons involved in the commission of that act of crime. Some people who commit this criminal act, commonly known as complicity or deelneming.16
Deelneming is an important issue in criminal law, particularly regarding to the severity of the criminal liability of each person against a criminal act. The position of each person involved in a criminal offense is not always the same, so that the severity of criminal liability is not the same either. In deelneming case, maybe there is only one or more persons who shall be burdened full criminal liability, while other people are only partially burdened by the criminal liability.17
15
Ibid
16
Rasyid Ariman, Fahmi Raghib, 2015, Op.Cit., page. 117.
17
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This deelneming issue is essentially to determine the criminal liability of each person against a criminal act, so it must be able to prove the relationship of each person involved in the criminal act in, as follows:18
a. Some people jointly commit a criminal offence;
b. Perhaps only one man who has the will and plan the criminal offence, but the action is not done alone, yet he uses other people to carry out such crime;
c. It can also occur when there is only one person who committed the crime, while the others assist the person in carrying out the crime.
Deelneming by its nature, the science of criminal law or doctrine distinguishes kinds of deelneming which are divided into two groups, as follows:19
a. Deelneming which stand independently, namely the responsibility of each participant valued separately;
b. Deelneming that does not stand independently (acceeoire deelneming), namely the liability of participants those are hung on the actions of other participants. It means, if other participants performed a deed that punishable, the other participants can also be punished.
18
Ibid
19
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To get an idea of what is meant by deelneming and its relationship to the Indonesian Penal Code today, it is necessary to look at the provisions set out in Section 55 and 56 of the Indonesian Penal Code as follows:20 a. Section 55 of the Indonesian Penal Code state:
1) Sentenced as the offender of criminal offence:
a) Those who perpetrate, cause others to perpetrate, or take a direct part in the execution of the act.
b) Those who intentionally provoke the execution of the act by gifts, promises, abuse of power or of respect, force, threat or deception or by providing an opportunity, means or information.
2) In respect to the provoker only those acts which have been deliberately provoked and their consequences shall be considered.
b. Section 56 of the Indonesian Penal Code state: 1) As an accomplices to a crime shall be punished:
a) Those who intentionally gave assistance at the time the crime was committed;
b) Those who intentionally provide the opportunity, means or information to commit a crime.
Under the provisions outlined in Section 55 and Section 56 of the Indonesian Penal Code, what is called criminal liability in Section 56 of
20
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the Indonesian Penal Code, what is known as the person who is liable for the act of crime is detailed into five types, as follows:21
a. People who commit (pleger or dader); b. People who told to commit (doenpleger); c. People who participate to commit (medepleger); d. People who advise others to commit (uitlokker); e. The people who assist to commit (medeplichters).
Thus, the provisions elaborated in section 55 and section 56 of the Indonesian Penal Code does not differentiate deelneming according to its nature, but only holds details on two things, as follows:22
a. Offenders (dader or pleger);
b. Participations or complicity (deelneming), which consists of four types of offender, namely: doenpleger, medepleger, and uitlokker.
3. Forms of Deelneming
The forms of deelneming or participation (complicity) existing under the criminal provisions of Section 55 and 56 of the Indonesian Penal Code are:
a. Doen Plegen (Telling to Commit)
Doenplegen is a form of deelneming the first under section 55 of the Indonesian Penal Code, the person who orders others to commit criminal acts. In this case, it is required that there are minimum two
21
Ibid, page. 250.
22
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persons, namely those who ordered (manusi domina) and others who are told to commit (manusi ministra). So, doenpleger is criminally liable of a crime, but the person does not commit the criminal act himself but rather use the mediation of others.23
In the criminal jurisprudence, the issue of doenpleger is called as middelijke daderschap doctrine, which is a criminal act that uses the mediation or indirect criminal acts. In this case pleger or dader,
who has the will but not the main perpetrator, because he himself does not commit a crime, but tell others to commit criminal act. However, doenpleger is the person who must take the criminal liability, meaning that the position doenpleger is not the main perpetrator but he is equated as an actor, which is why he can be sentenced.
However, to determine a person as doenpleger, it must meet the conditions so that he can be sentenced, that is, those who are told to commit a criminal act should be people who could not be criminally liable, therefore could not be sentenced. If the person who is told to commit may have the ability to take liability, that person is not
doenpleger but more as uitlokker or someone who is persuaded by others to commit a crime.24
Before, it should be noted that the Indonesian Penal Code has been formulated for someone who committed a crime because of
23
Ibid, page. 253.
24
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some circumstances so that he is considered to be unable to criminally liable, it can be explained as follows:25
1) A person who is asked to commit a crime has a state of the soul as determined in section 44 of the Indonesian Penal Code, namely the growth of mental disability or impaired due to illness.
2) A person who is asked to commit a crime does not mean to commit or it is caused by a force, and the person has no power to avoid (overmatch), as it is referred in section 48 of the Indonesian Penal Code, namely a person who acts under the influence of forced power, and it is not convicted.
3) A person who is asked to commit a crime has no place or quality (hoedeningheid en qualitet) as required in section 50 of the Indonesian Penal Code.
4) A person who runs an invalid state command, position, or task (onbevoegd gegeven ambtelijk bevel) as required in section 51 paragraph (2) of the Indonesian Penal Code, as follows:
a) The order is executed in good faith (ter goeder trouw) and assumes that the order was a lawful command that must be implemented;
b) Unauthorized commands must be implemented within the working or power circles.
25
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5) A person who is asked to commit a criminal act that could not be blamed for misunderstandings or errors of one of the elements of the crime.
6) A person who is asked to commit a criminal act could not be blamed for not having the element of intent (oogmerk)..
It is noteworthy, for the existence of doenpleger, it does not have that a dader send or give orders directly to the people who are told to commit a criminal action or materiel dader (main perpetrator), but the order can also be granted through the intercession of others.26
Departing from the above description, it should be reiterated that when a crime is doenplegen within the meaning of Section 55 paragraph (1) of the Indonesian Penal Code where several things are required, as follows:27
1) The person who commands (manus domina) or middelijke dader, namely someone who has the will to a criminal act, but to carry out his will he ordered others to commit the crime (manus ministra). In other words, a person who committed the crime does not have to commit the crime himself, but he can use the mediation of others (manus ministra) or other means of
26
Ibid, page. 257.
27
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mediation. Therefore, he is as the one who take the criminal liability of a crime which is committed.
2) Manus ministra or people who are told to commit a criminal act are required to be a person who could not be criminally accountable; therefore he is not sentenced or could not be criminally liable.
b. Medeplegen (Participating)
Medeplegen, a form of deelneming, where there is someone or more people who participate to commit a criminal act committed by the perpetrator. If someone wants a criminal act and to manifest his will, he sent someone else to commit it, then the people who tell others to commit a criminal act is referred as doenpleger. While a criminal offense in a state of medeplegen, each person is directly involved as participants of criminal act, so that each person is seen as
mededader of other participants or those who participate commit a crime.28
This medeplegen form is to show that each participant has the same position or the same degree. According to Van Hattum, it means looking the action and degree as the same. According to Van Hattum looking at the deeds in section 55 of the Indonesian Penal Code should be interpreted as an opzettelijk medeplegen or intentional action for participating in a criminal offense committed
28
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by another person. It means that intentionality to deliberately participating in a culpoos delict can be punished, and the other way around, unintentionally for participating in a culpoos delict can’t be
punished.29
If it is observed, the formulation of section 55 of the Indonesian Penal Code is not clear what is actually called medepleger. Even in practice, the element of intent is not enough to call that in a criminal offense is medeplegen. Therefore, in the science of criminal law determines the conditions in which a criminal offense is medeplegen
or not.
The terms in which a criminal offense is medeplegen as determined by the science of criminal law, as follows:30
1) The existence of a few or more people who jointly committed a criminal act with the power of his own body;
2) The presence of consciousness to cooperate among the participants to commit a crime.
What is meant by consciousness in medepleger is usually when some of the participants before committing a crime in advance previously discuss the agreement to commit a crime. The words "in general" above does not mean as an absolute requirement, meaning that before the participants committed a crime, they must first conduct an agreement among them, but it is enough when they are
29
Ibid
30
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quite aware or "realized to work together" when committing a crime.31
c. Uitlokking
A deelneming is called uitlokking if a criminal action committed by perpetrators who deliberately driven or persuaded by others. People who deliberately drive the others in case of deelneming called
uitlokker, and the perpetrators are required to be someone who could be accounted for. Someone uitlokker in case deelneming includes people who can be criminally liable on persuasion or advise others to commit a crime.32
The involvement of other people as the perpetrators in the case of uitlokking have in common with other people involvement in the case of doenplegen (tell others to commit a crime). So, between
uitlokking with doenplegen equally involving other people as perpetrators or serve as the mediation to achieve an act of crime, while the uitlokker and the doenpleger does not commit itself to an act of crime that is desired. Another similarity, both the uitlokker and the doenpleger can be equally burdened criminal liability of a crime committed by the perpetrators.33
The difference, others who were persuaded to commit a criminal action in uitlokking should be someone who can be held as liable for
31
Ibid
32
Ibid, page. 260.
33
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his actions (toerekenbaar). While others who committed a crime in
doenplegen should be someone who can’t be accounted for his action (niettorekenbaar). In addition, methods used between
uitlokking and doenplegen are also different, which means that case used in uitlokking has been determined in a limited way, specified in the legislation, while in the case of doenplegen is not determined by law.34
In practice, there are many terms used to describe people who persuade others to commit an act of crime of which, namely: an agent provocateur, de uitlokker, auctor intelectualis or int-uitlokking, it is necessary to distinguish between persuading and agitating to commiting a crime.35
Where a criminal offense is the uitlokking (persuading) as defined in Section 55 paragraph (1) point 2 must meet the following requirements:36
1) There must be a person who deliberately persuades (motivates) another person to commit a crime;
2) Intentionality to motivate others has to be done with the efforts that have been determined in a limited manner in section 55 paragraph (1) 2nd Indonesian Penal Code;
3) The efforts of persuading must consist of other people who are persuaded to commit a crime;
34
Ibid
35
Ibid
36
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4) People who are persuaded must have committed a crime as desired by the persuader.
The terms described above in accordance with Section 55 paragraph (1) 2, which explains that:
"Those who give or promise anything to the abuse of power or dignity, by force, threat, or deception, or by providing the opportunity, means, or information, intentionally counts the opportunity, means or information, intentionally encourages
others to do the deed”.37
Ways to persuade are determined in a limitatief way. According to the Dutch Minister of Justice, Moldderman, the nature of limitatief
is for legal certainty. Thus it can be avoided if there is a person who is easily claimed to be persuaded by other people. But the other way around, it brings loss, namely several cunning ways which do not exist in the list of Section 55 to persuade as mocking or pretending to give advice, and so on, are not valid.38
The kinds of efforts are:39
1) Gift (giften)
This is not only money, but goods, or facilities as well. 2) Promise (beloften)
37
Indonesian Penal Code, section 55 article (1).
38
Rasyid Ariman, Fahmi Raghib, Op.Cit., page. 134.
39
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Promise encompasses all things that generate confidence in those who are induced and will benefit him, even if the belief was not based on strong reasons and convincing. Promise can be in a form of money, goods, work, rank, and so on.
3) Misuse of authority (misbruik van gezag)
Power (gezag) must have someone towards another person.
Gezag includes: power of parents toward their children, employers toward their workers, or teachers toward students. Misuse of power means the use of power in the wrong way or exceeded the limit.
4) Misuse of glory, dignity, or honor (misbruik van aanzien), in German: (Misbrauch des Assehens).
This kind of effort is not included in the Dutch Penal Code. This is specifically feudalistic Indonesia. Examples: Kyai-kyai (chaplain), chiefs of the tribes, chiefs of the village, and so on, is very influential in Indonesian because they are considered noble. 5) Violence (geweld)
Violence can be done by using human power or with tools. Only violence should not be so severe that cause overmacht.
6) Intimidation (bedreiging)
If power is a form of physical coercion, threat can be said as spiritual or psychological coercion. It can be in a form of words
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that can raise dangerous feelings above someone. Concerning the terms, it is the same with the terms of powers (gewel) above. 7) Deception (misleiding)
Giving wrong description of a situation that raises the person is who persuaded the motive for committing crime.
8) Provide opportunities (gelegenheid), tools (middelen) or information (inlichtingen), for example:
a) Provide opportunities, for example, a maid who did not lock the door of the master's house at night, so that other people can get into the house;
b) Provide mediation, for example, lending a gun to someone else who wants to kill his friend;
c) Provide information, for example, a bank employee provides the secret code to open the safe-deposit box to a thief.
Those are 8 ways to persuade. Those ways are called limitatief
in the Indonesian Penal Code, which means can’t be added.
d. Medeplichtigheid
The latest form of deelneming as the provisions set forth in Section 56 of the Indonesian Penal Code is medeplichtigheid or help to commit a crime. This form of deelneming is also often interpreted
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as medeschuldig or liable, while the people who help or who serve as aide of a criminal offense are called as medeplichters.40
What is a medeplichtigheid? To know the sense
medeplichtigheid, note Simons opinion, as follows:41
"Medeplichtigheid is a onzelfstandige deelneming (a participation) that does not stand alone, that is to say whether or not medeplictig is sentenced depends on the fact whether the dader has committed a criminal act or not."
According to the definition of medeplichtigheid which Simons has given above, it means that in medeplichtigheid one can be blamed and punished who do not stand independently but rather depends on the fact to the act of crime committed by the perpetrator. Thus, whether a person can be blamed and punished or not, will depend on the fact whether the main perpetrator committed a criminal act or not. Basically, the role of the medeplichters in
medeplichtigheid is to facilitate the realization of a criminal offense committed by the perpetrator either before or at the time the criminal act was committed.42
When observed, the formulation of section 56 of the Indonesian Penal Code, what is called as accomplice of criminal acts can be divided into two types, it can be seen as follows:43
40
Roni Wiyanto, Op.Cit., page. 271.
41
Ibid
42
Ibid
43
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1) Someone who intentionally provide assistance when the criminal act are committed;
2) Someone who intentionally provide the opportunity, means or information to commit a crime.
The requirements that must be met if a person can be considered to give assistance or help at the time the act of crime are committed, is elaborated as follows:44
1) Someone must have the element of intent (opzet), which means the person help the act of crime intentionally.
2) The assistance which is given must be done at the time the criminal act is committed by another person;
3) Forms of assistance can be given in any condition that is both material and morality.
The requirements that must be met if a person can be considered to give opportunity, means or information at the time the act of crime are committed, is elaborated as follows:45
1) Someone must have the element of intent (opzet), which means the person help the act of crime intentionally.
2) The assistance which is given must be done before the criminal act is committed by another person;
3) Forms of assistance provided in the form of: opportunity (gelegenheid), means (middelen) or information (inlichtingen).
44
Ibid, page. 272.
45
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From the requirement that must be met by each type of the accomplice of criminal acts mentioned above, it can be seen also differences, as follows:46
1) The criminal accomplice at the time the crime is committed, as follows;
a) Assistance is provided at the time the crime was committed; b) Forms of assistance provided are not determined in limited manner prescribed by the Indonesian Penal Code and the assistance which is provided can be anything, both material and moral assistance.
2) A person who intentionally provides the opportunity, means or information to commit a crime.
a) Assistance which is provided before the crime is committed;
b) Forms of assistance provided in a limited manner prescribed by the Indonesian Penal Code in the form: opportunity (gelegenheid), means (middelen) or information (inlictingen).
It should be noted, that a criminal act in a state of
medeplichtigheid intended section 56 of the Indonesian Penal Code required the element opzettelijk. However, there is another view which states that a medeplichtigheid criminal act is not covered by
46
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opzettelijk element. To get an idea of whether or not there is
opzettelijk element, the following provisions of section 86 of the Indonesian Penal Code is cited below, as it stated:47
"If a crime, both in terms of crime in general and in terms of a particular crime, include assistance and attempt, unless being specified otherwise by the rule."
According to the provisions of section 86 of the Indonesian Penal Code mentioned above, it seems that the provision of what is meant by crime is including assistance (medeplichtigheid) and attempt (poging), unless being specified otherwise by the rule. Therefore, it is necessary to know in advance what is intended in the formulation of Section 86 of the Indonesian Penal Code. According to Satochid Kartanegara, that what is meant by section 86 of the Indonesian Penal Code are all of the conditions which is prescribed by the Indonesian Penal Code for the crime, also are applied to "assistance" and "poging/attempt" for evil deeds. However, it is not the intention of the Indonesian Penal Code to consider
medeplichtigheid and poging as similar matter in case of crime
(misdrijf), but only the conditions prescribed for the types of certain act of crime; it shall also apply to both forms.48
As how uitlokking is, then medeplichtigheid is also a form of
deelneming that does not stand independently, it means that the
47
Ibid, page. 273.
48
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medeplichetrs act can’t be separated from the main perpetrator acts
or dader. So, according to section 56 of the Indonesian Penal Code and is connected with the provisions of section 86 of the Indonesian Penal Code, then the medeplichters with its dader, it is required to have the element of opzettelijk.49
What is meant by the conditions to the existence of the
opzettelijk element for medeplichters and its dader, can be elaborated as follows:50
1) The element of opzet for the criminal accomplice (medeplichters), is an intentionality which is done by someone to provide assistance to others who committed a crime, whether the aid was given at the time of a criminal act is committed or before a criminal act is committed. If the aid was merely a coincidence and the fact that the accomplice did not know that he has given an aid, means, or information to others to commit a crime, then he is not punishable. Forms of assistance should be done at the time of a criminal act was committed, or before a criminal act is committed, because if assistance was granted after the completion of a criminal act, it will have the different meaning and purpose, for example, that person is called to abet (Section 221 of the Indonesian Penal Code) or as buyer (Section 489 of the Indonesian Penal Code).
49
Ibid
50
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2) The element of opzet for a person, who committed a crime, means that the opzettelijk elements which are required must come from a dader or a person who committed a crime. If
opzettelijk element comes from a medeplichters, then that person is not as medepplicters, but as uitlokker or persuader towards others to commit a crime. As it has been explained above, that element of opzettelijk for medeplichters is intented to assist the existence of a criminal act committed by the dader.
The burden of a criminal threat that should be charged to
medeplichters has been outlined in section 57 of the Indonesian Penal Code, which stated:51
1) In terms of assistance, the maximum of principal punishment of the crime will be reduced one-third.
2) If a crime is punishable by death or lifetime imprisonment, it is imposed a maximum imprisonment of fifteen years.
3) Additional penalty for the assistance is the same as the crime itself.
4) In determining the punishment for the accomplice, who accounted for the acts which is intentionally made easy by it, along with its consequences.
As it is well known that medeplichtigheid is a form of
deelneming that does not stand independently. It means the action of
51
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a medeplichters is associated with deeds committed by the culprit. The definition of medeplichtigheid is meant as the act of a person who gives assistance or help with the effort defined in section 56 of the Indonesian Penal Code, so the person who helped (medeplichters) has contributed to be criminally liable. This criminal threats is not heavy as the criminal penalty that imposed to the main perpetrators (dader), as it has been outlined in section 57 of the Indonesian Penal Code mentioned above.52
The criminal responsibility by a medeplichters basically the same as the criminal responsibility by a uitlokker, which is not only limited to his actions, but also the consequences of the acts committed by the culprit. The difference lies in the magnitude of criminal threats between medeplichters with uitlokker. So in medeplichtigheid, there are provisions that restrict and expand criminal liability as defined in section 57 paragraph (4) of the Indonesian Penal Code.53
As what is meant as the criminal liability is restricted and expanded as it is explained in the following elaboration:54
1) The criminal liability for medeplichters which is limitative is that medeplichters only liable for his actions which help against the criminal act. The act of assistance was required to contain the elements of opzettelijk, which is assistance in the form of
52
Ibid, page. 276.
53
Ibid
54
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endeavor as determined in a limited manner in section 56 of the Indonesian Penal Code. The initiative has been accepted by the culprit and used to commit a crime.
2) The criminal liability for medeplichters is not only in the action to provide assistance to perpetrators of criminal acts, but
medeplichters is also accountable for the consequences arising due to such assistance.
e. The Relation of Deelneming to Section 58 of the Indonesian Penal Code.
Some people involved in the case of deelnemingcan’t always be subject to criminal liability due to personal circumstances (persoonilijk omstamdigheden), both personal circumstances inside a
medeplichters and personal circumstances of a culprit (dader). Personal circumstances meant here are the circumstances within a
medeplichters and a dader as a reason that can remove, reduce, or aggravate the criminal punishment.55 The issue about personal circumstances that may remove, reduce, or burdensome penalty as outlined in section 58 of the Indonesian Penal Code, which stated:56
"In using the criminal rules, one's personal circumstances, which eliminate, reduce or burdensome imposition of criminal, are only assessed against the criminal perpetrator or the accomplice concerned themselves."
55
Ibid, page. 277.
56
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Under the provisions outlined in section 58 of the Indonesian Penal Code mentioned above, in deelneming three types of personal circumstances are known, it is elaborated as follows:57
1) Personal Circumstances which Deleting A Sentence
General provisions in the Indonesian Penal Code Chapter I provide several reasons why a person who is accused of being a perpetrator of a crime, can’t be imposed the sentence as follows:58
a) Insanity/incapability (Section 44 of the Indonesian Penal Code);
b) Minority (Section 45 of the Indonesian Penal Code); c) Overmatch (Section 48 of the Indonesian Penal Code); d) Noodweer excess (Section 49 of the Indonesian Penal
Code);
e) Law Commands (Section 50 of the Indonesian Penal Code); and
f) Authority Commands (Section 51 of the Indonesian Penal Code).
2) Personal Circumstances which Decreasing A Sentence
57
Ibid
58
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Personal circumstances that allow criminal punishment threats to be reduced, such as criminal act which is outlined in Section 308 of the Penal Code, which stated:59
"If a mother because of fearing the birth of her baby to be known about, shortly after giving birth, she places her child to be discovered or leave the baby with the intention to break away from the baby, then the maximum punishment under section 305 and 306 cut in a half."
Personal circumstances as stipulated in Section 308 of the Indonesian Penal Code above are reasons that can reduce the threat of criminal punishment, where the maximum punishment that threatened to Section 305 and 306 of the Penal Code is reduced in a half.60
3) Personal Circumstances that Aggravating Sentence
Personal circumstances which became the reason for the judge to convict the perpetrators or criminal accomplice by weighting them as follows:61
a) Recidivate or repetition of criminal acts (Section 486 of the Indonesian Penal Code);
b) State Employee who uses his position (Section 52 of the Indonesian Penal Code);
59
Ibid, page. 280.
60
Ibid, page. 281.
61
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c) Persecution towards father or mother, husband or wife, or children (Section 356 of the Penal Code).
B. OVERVIEW ABOUT THE CRIME OF TREASON (MAKAR)
1. Definition of Treason (Makar)
Treason is derived from the word "aanslag" (Dutch), which means an attack or "aanval" meaning an attack with the bad intention
(Misdadige Aanranding). According to Indonesian Dictionary (KBBI) and Andi Hamzah Law Dictionary, treason is: deception, deceit, actions (effort) with the intention to attack/kill people, or act/effort to overthrow the legitimate government.62
The act of treason is regulated in Section 104 to Section 129 of Indonesian Penal Code. In other definition, it can also be classified as crime against the president and vice president, against the legitimate government or government agencies, to spy for the enemy, resistance to government employees, rebellion, and other acts that harm the interests of the state. The act of treason is also often interpreted as an attack directed at the government (head of state and his deputy). The main motive is to make the subject is not competent to rule, deprive independency, overthrow the government, change the system of government in a way that is not legitimate, undermine the country's
62
Velanti Anggunsuri, “Pemerintahan yang Sah”,
http://www.komisikepolisianindonesia.com/umum/read/10935/bedanya-kudeta-makar-html, accessed on October 2nd, 2015 at 11 pm.
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sovereignty to conquer or to separate some of the countries to be submitted to other government or used as a liberate state.63 So it can be concluded that the rebellion under the Indonesian Penal Code means
"Crimes against State Security”.
What is called as “the act of treason" absolutely needs a beginning of
the action implementation, as referred to Section 53 of Indonesian Penal Code. In the act of treason, the penal itself is an act of execution as it was intended in Section 53 paragraph (1) of the Indonesian Penal Code, it is unlikely that there is an attempt to commit an assault. Required necessity about the beginning of the implementation of the criminal act of treason, as it is not enough of an offender, it is not only the preparatory acts thus it must be embodied in an onset of an execution action.64
The emergence of the act of treason in Indonesia can’t be separated from any contradictions or social upheavals, law, and even politics in the country. The reason why someone would do the act of treason could be caused of many factors, but generally there is a sense of dissatisfaction with the ongoing power.65
63
Aldp Papua, “68 Tahun Indonesia Merdeka”, http://www.aldp-papua.com/68-tahun-indonesia-merdeka-makar-masih-ada-di-papua, accessed on October 2nd, 2015 at 8.10 pm.
64Law Community, “Delik
-delik Khusus”, https://wonkdermayu.wordpress.com/kuliah-hukum/delik-delik-khusus, accessed on October 1st, 2015 at 9.40 pm.
65
Abdurisfa Adzan Trahjurendra, “Politik Hukum Pengaturan Tindak Pidana Makar di Indonesia”, http://hukum.studentjournal.ub.ac.id/index.php/hukum/article/view/583/573, accessed on October 4th, 2015 at 11 pm.
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2. Forms of Treason in the Indonesian Penal Code.
The kinds of treason in the Indonesian Penal Code can be grouped into 3 forms, namely:
a. Treason against the Head of State (Section 104 Indonesian Penal Code).
Section 104 Book II Indonesian Penal Code contains criminal acts such as treason committed with a view to taking the life or liberty of the President or Vice President of the Republic of Indonesia, or with a view to making them unable to run the government in appropriate way. The punishment is maximum twenty years imprisonment. The penalty was increased to the death penalty or imprisonment for life or for twenty years, referred to the president determination No. 5 of 1959.66
Section 104 Indonesian Penal Code has the following elements:67 1) Subjective elements: met het oogmerk or with intention 2) Objective elements:
a) Aanslag or treason
b) Ondernemen or which is done
c) Om van het leven te beroven or to take the life
d) Om te van de vrijheid beroven or for seizing independence e) Om te maken ongeschikt regeren tot or not able to rule
66
Wirjono Prodjodikoro. 2003, “Tindak-tindak Pidana Tertentu di Indonesia”, Bandung, PT. Refika Aditama.
67
P.A.F. Lamintang, Theo Lamintang, 2010, “Kejahatan Terhadap Kepentingan Hukum Negara”, Jakarta, Sinar Grafika, page. 6.
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f) Den President or President
g) Den Vice President or Vice President.
b. Treason against Territory of State (Section 106 Indonesian Penal Code).
Criminal acts of treason committed with intent to bring the part or the whole country under foreign rules or to separate parts of the country, by the legislators, have been set in section 106 Indonesian Penal Code.68 The criminal threat is lifetime imprisonment or temporary imprisonment for the maximum of twenty years.
In this case (the article), what will be protected is the territorial integrity of the country. No qualification (name) for this criminal case. But it can be called "rebellion carried out with the intention of all or part of the country falling into the hands of the enemy or to
separate regions of the country.”69
From the formulation of Section 106 in Indonesian Penal Code, people can know that the elements of the crime of treason regulated in Section 106 Indonesian Penal Code are as follows:70
1) Subjective Elements: met het oogmerk or with intention 2) Objective Elements:
a) Aanslag or treason
b) Onder Omen or which is done
68
Ibid, page. 40.
69
Andi Hamzah, 2015, “Delik-Delik Tertentu Di Dalam KUHP”, Jakarta, Sinar Grafika, page. 218.
70
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c) Onder vreemde heerschappij brengen or bring down foreign rule
d) Grondgebied Het staat van den or territory e) Geheel of gedeeltelijk wholly or partly f) Afscheiden or separate
g) Een deel daarvan or part of the country.
The word "treason" or aanslag does not always have to be interpreted as an act of violence, because what is meant by the word treason in the formulation of criminal action under Section 106 Indonesian Penal Code actually is action taken to harm the interests of the law of the country in the form of the territorial integrity of the country.71
c. Treason to Overthrow Government (Section 107 Indonesian Penal Code).
Criminal acts of treason committed with the intention to bring down the government by the legislators have been set in section 107 Indonesian Penal Code, and it was formulated as follows:72
1) Treason conducted with the intention to knock down the government, shall be punished with imprisonment for at least fifteen years.
71
Ibid, page. 42.
72
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2) Leaders and planners of treason as referred to in paragraph (1) shall be punished with imprisonment for life or with temporary imprisonment for at least twenty years.
Section 107 Indonesian Penal Code has the following elements:73 1) Subjective element: met het oogmerk or with intention 2) Objective element:
a) Aanslag or treason
b) Onder Omen or conducted
c) Omwenteling teweg brengen or to knock down the government
If the criminal provisions set out in Section107 Indonesian Penal Code we associate with the authentic interpretation of the legislators about the word omwenteling in Section 88 in Indonesian Penal Code above, it can be known or understood that which is prohibited under Section 107 paragraph (1) Indonesian Penal Code actually is treason conducted with intent to cause:74
1) Destruction or alteration of the form of government under the Constitution in a way that is unauthorized by law;
2) The destruction or changes in the procedures for the replacement of the throne according to the Constitution in a way that is unauthorized by law; and
73
Ibid
74
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3) Undermined or transformed the procedures in the form of the Indonesian government under the Constitution in a way that is unauthorized by law.
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CHAPTER III RESEARCH METHOD
A. Type of Research
This type of research is a normative legal research, it means that this research stems from look at the fact of problem occurred in the field, and then connect it with criminal laws that are applied, that is by doing literature study.
B. Sources of Data
Data sources that were used by writer were secondary data. Secondary data were obtained from the literature study. Secondary data include:
1. Primary legal material
The rules of law relating to the concept of complicity in a criminal offence, such as the Indonesian Penal Code, the Indonesian Constitution 1945, and Law Number 34 years 2004 about "Indonesian National Army".
2. Secondary legal material
Legal materials studied were primary legal materials, such as books of literature, mass media or newspaper, online media or online news sites, and Papers.
3. Tertiary legal material
The legal materials include scientific materials that support or give the instructions and explanations to the primary legal materials and
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secondary legal materials, such as Laws Dictionary, English Dictionary, and Indonesian Language Dictionary.
C. Technique of Collecting Data
The method of collecting data in this research was done through library research and literature learning upon the legal materials such as primary legal materials, secondary legal material, tertiary legal material, or non-legal material. The searching of those legal materials would be done by reading, analysing, listening, and trying to make conclusion from related documents such as the legislation, books, literatures, papers, mass media, internet, and others which related to the main problem as the object of this research.
D. Data Analysis
Data analysis was conducted in descriptive analyze, it means that the researcher gave a description or elaboration upon the subject and object of the research as like as the result of this research.75 This research also used Conceptual Approach that means a concept in jurisprudence (legal science) was used as an approach for legal research analysis. This conceptual approach begins from opinions and doctrines in jurisprudence. By learning these doctrines, the researcher found the ideas that create legal definitions, legal concepts, and legal principles that were relevant with the problems
75
Mukti Fajar, Yulianto Ahmad, Dualisme Penelitian Hukum Normatif dan Empiris, Yogyakarta, Pustaka Pelajar, 2010, page.183.
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researched, and with this conceptual approach, the researcher also made legal argumentation to answer the legal issues raised.76
76
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CHAPTER IV
FINDINGS AND ANALYSIS
A. Ammunition selling by personal officer of TNI and POLRI to Organisasi Papua Merdeka (OPM).
In the last five years, an issue of ammunition and gun selling has been spread in the society, especially in Papua society. The issue that spread is ammunition and gun selling was committed by personal officer of Indonesian Army and Police in Papua.
Benny Giai, as the Papua Activist, stated that it was correct that ammunition and gun selling were committed by Indonesian Army and Police officer. Benny added that it has been occurred around August to November. In last year, the personal officer of Indonesian Army and Police sell the ammunitions and guns out almost every week.77
Ex-chief of Papua Police, Tito Karnavian allegedly justifies that the cases are correct. Tito states that the suspects sell the ammunitions and guns on behalf of personal officer, not an institution. He definitely states that some personal of police officer have been arrested and even imprisoned. Tito says, the case has been processed. Those personal officer consist of some TNI officers and some POLRI officers. The Major of Indonesian Army, Fuad Basya, states that TNI personal officers neither sell the ammunitions and
77
CNN Indonesia, “Konflik di Papua Tak Selalu Berbau Politik”,
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firearm gun in Papua. However, he states that there may be a possibility of the sale activities committed by personal officer. Moreover, he defines that ammunition and gun sales are based on demand or appliance. “There are groups who need ammunitions, beside there are groups of people who need
money” as he adds.78
Indonesia people curiosities toward the issue and news of TNI and POLRI involvements of the ammunition and gun sales for OPM in Papua have been allegedly established as one of causes of gun conflict in Papua.
At the end of year 2014, the society was shocked on the arrest of Tanggam Jikwa, a police officer. He was arrested while in transaction of bullet selling to the members of OPM in a hotel in Wamena regency in October 26, 2014. He was suspected as an ammunition supplier who sells the bullets to OPM.79 He was arrested when he wanted to sell 29 ammunitions, a series of 7,62 mm caliber priced by 3 million rupiahs and there were found 231 bullets with 5,56mm caliber and 12 items of 38mm caliber believed to be ready-stocks to be sold in his house.80
From the investigation process, the involvements of him and a retired of Indonesian Army and two officers of Military District Command (Kodim)
1702 of Wamena have been processed upon the ammunition selling.
78
Ibid
79Liputan6, “Diduga Pasok Amunisi Kelompok Bersenjata Papua”,
http://m.liputan6.com/news/read/2125403/diduga-pasok-amunisi-kelompok-bersenjata-papua, accessed on April 8th, 2015 at 9.50 pm.
80
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Ammunition selling by TNI personal officer did not only happen in the remote areas, but also happened in the whole regencies and cities in Papua.81
It was proved by the arrest of six officers of Indonesian Police by the Special Team of Papua Local Police. They are firearm and ammunition selling networks in Manokwari region, West Papua. Moreover, five of TNI officers have been arrested after selling 500 ammunitions to Kelompok Kriminal Bersenjata (KKB). The arrest of five TNI officers are ensued based on the information from three member of KKB who sold 500 ammunitions in a car before. The three member of KKB clarified that they bought the ammunitions from five TNI personnels initialed as NHS (24), S (27), RA (29), S (39), and MM (46).82
B. Separatist Movement of OPM as the form of Treason Act that threaten The State integrity.
1. OPM as The Separatist Group
OPM is a separatist movement founded in 1965 aiming to constitute authority of Papua liberation, especially west territory of Papua from Indonesian Government. Before the reformation era, the provinces consist of Papua and West Papua which is now called Irian Jaya.83
81Liputan6, “5 TNI di Papua Jual Amunisi ke Kelompok Bersenjata”,
http://m.liputan6.com/news/read/2168408/5-tni-di-papua-jual-amunisi-ke-kelompok-bersenjata, accessed on March 28th, 2015 at 10.15 pm.
82
Ibid
83Komnas TPNPB, “Sejarah OPM”,
http://www.komnas-tpnpb.net, accessed on October 2nd, 2015 at 2 am.
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The name of Free Papua Organization or OPM is assigned by Indonesian Government for every organization or every faction either in Papua or foreign country led by Papuan who actively moves on subversively under political system to construct their force to fight against Indonesian Government, political or armed movements to liberate Papua from Negara Kesatuan Republik Indonesia (NKRI).84
OPM claims that they have no history relation with Indonesia countries or other Asian countries. Unification of this territory into NKRI since year 1969 is the result of the agreement between Netherland and Indonesia, and Netherland gave that territory (Papua) to Indonesia. In
OPM’s perspective, the agreement is another resignation from old
colonizer to new colonizer.85
In July 1st, 1971, Nicholas Jouwe and two commanders of OPM, Seth Jafeth Raemkorem and Jacob Hendrik Prai rose Bintang Fajar flag up and proclaimed the revolt of West Papua Republic. However, this republic had no longer survived because they were crushed by Indonesian military under regime of Soeharto (new orde regime). In 1982, A Revolutionist Council of OPM was founded which aimed to sustain international advocacy for supporting the region, West Papua. They intensified their alliances to United Nations, Non-Aligned Movement, South Pacific Forum and ASEAN supports.86
84Fathoni Hakim, “Perjanjian Keamanan”,
http://lib.ui.ac.id, accessed on August 1st, 2015 at 10 pm.
85Komnas TPNPB, “Sejarah OPM”,
http://www.komnas-tpnpb.net, Loc. Cit.
86
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In their development, OPM develop to be an organization that wants separation from NKRI. OPM changes into a separatist movement that is more organized, even though in the fact, OPM tends to be more sporadic in their movement, and it has been a characteristic in their movement. To achieve their goals (the Papua’s liberation), OPM’s activities are divided into political and military activity.
Political activities are done in Indonesia and also abroad, but compared to another separatist movements, the OPM’s political activity in Indonesia was not as effective as those in abroad. It is caused by the intelligence and military continuous supervisions which render OPM’s activity in Indonesia. In military activities, OPM works in the commands of Tentara Pembebasan Nasional Papua Barat (TPNPB) assisted by Papua Intelligence Service (PIS), which supervise the immigrants, Indonesian Army activity and local apparatus.87
Social discrepancy between migrants and local society and also
Papua’s land exploitation allegedly flushes out their reasons for their
movement. Indonesian government must handle this problem seriously, not only by deploying military approach, but also attending to social prosperity and welfare of Papuan for progressive development in Papua. In the other side, we can see their daily activities in the forest and Papua
87Fathoni Hakim, “Perjanjian Keamanan”,
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remote areas in order to guerilla to achieve their wants to build their own state separated from Indonesia.88
The ways of OPM’s insurgence are divided into two; armed and non-armed insurgences. Armed insurgence is the revolt of gun-firearm uses to fight against Indonesian Government, beside non-armed insurgence is like declaring the statements.89
OPM’s insurgent movements transparently commit the armed
resistance or military act sporadically, committing hostages or abduction, mass demonstration, spreading pamphlets, flapping their flag, arranging political conferences and forming local defense organization, trespassing the border operation to Papua New Guinea, and conducting violence and vandalism.90
Furthermore, there are numbers of pressures of OPM to indicate them as separatist movement. Nowadays, one of them was spreading terrors for TNI and POLRI and Non-Papua groups. The leader of Puron Wenda and Enden Wanimbo had bravely organized open wars to TNI and POLRI and Non-Papua groups in the last May. The open-war
intimidated their firmness to death cohesively to withdraw Papua’s
authority. They resisted every dialog which relates to their propaganda. In urging the open war, according to Enden Wanimbo, his group now collects more guns and ammunitions. He urged the Indonesian
88Komnas TPNPB, “Sejarah OPM”,
http://www.komnas-tpnpb.net, Loc. Cit.
89Sebelas Maret Institutional Repository, “Organisasi Papua Merdeka”,
http://core.ac.uk, accessed on Oktober 2nd, 2015 at 8 pm.
90Fathoni Hakim, “Perjanjian Keamanan”,
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government to go out from Papua’s region because they would never
have surrendered for regional authority of Papua liberation. Puron
claimed that the conductions are political arms for Papua’s authority. He
and his group refused explicitly for being called as criminal group, intruder group, small group, or any identical name related to those terms.91
2. Separatist movement as a form of Criminal Act of Treason.
State is a huge organization and has a duty for implementing nation’s
purposes nationally in order to defend and develop preservation of nation and state lives. Maintaining and preserving the existence of state in keeping everlasting (survive) is not the easy thing to commit. State everlastingly deals with any terrors and intimidations of endangering its existence, whether it comes from internal and external of its state. One of terror and intimidation forms is an assault. The punitive measure of assault policy is formulated and ruled in Indonesian Penal Code.92
In separatist movement context, an assault law is ruled in Indonesian Penal Code, section 106 which states that:93
“A Treason (aanslag) acted by conquering a state area overalls or partials undercover of foreign government or separating regional area of the state, will be sentenced or punished to life permanently in
91
Viva News, “OPM Tebar Ancaman Perang Terbuka dengan TNI dan Polri”, http://nasional.news.viva.co.id, accessed on October 3rd, 2015 at 10.36 pm.
92Naga Samudra, “Kejahatan Separatis”,
http://patriotgaruda.com, accessed on October 2nd, 2015 at 11.10 pm.
93
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prison or long-term punishment temporarily twenty years in the
prison”
If we see accurately the content of Indonesian Penal Code, section 106, the object of this aggression is the independence of state areas. The independence of a state can be destructed by two ways. First thing is conquering and overalls or partials extraditing of the state to foreign states. The second is destructing the partials of the state to constitute its own territory and its own authorities to constitute liberate region and nation.94
In this case, separatist movement as it is said on point two above is the motivation to separate the partial territories of state to find a liberal
state or region’s authority. Referring to Indonesian Penal Code, section 106, the separatist movement transparently can be categorized as an assault act because the elements of punitive measure of assault have been transparently appointed based on its purpose and its motivation.95
OPM is generally well-known as separatist movement because their separatist movement aims to separate the partial regions of states of Indonesian Republic, liberate nation separated from Indonesia. OPM intensifies their movement to reach out their purposes by forming structural organization into cabinet ministers or president and armed-forces so that the risks urge physical battle which ensue many victims such as the agencies of government ranks and their separatist ranks. They
94
Ibid
95
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have risked civilians for they fight for the authority withdraw and judge it as their region to defend.96
C. The relation between “Ammunition selling Act by TNI-POLRI personal officer to the separatist group (Organisasi Papua Merdeka)” with “The
concept of complicity in a criminal offense” according to Indonesian Penal
Code.
It is a violation if the weapons equipment owned by the state was trading illegally, especially if it is done by the state apparatus that were given a mandate to carry out the duty in order to maintain the sovereignty, security, and integrity of the state. Moreover, if those state’s equipment was sold to the parties who are clearly opposed NKRI. But finally it has been proven that there is an act of ammunition selling to the separatist group (OPM) done by some personal officers of TNI and POLRI. It is proven by the arrest of those agencies who did transactions directly with the separatist group (OPM), even there is also transactions done in the urban areas. That ammunition selling act was even caught in a few months only, since October 2014 up to early 2015.
If we look at this case, there are two points that can be concluded, there is an element of violation done by personal officer of TNI-POLRI, because they sell the ammunition (bullets) as a part of the tool or facility which was given by the state for TNI-POLRI to run their function and duties such as maintaining, securing, and also protecting the security, sovereignty, and
96
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NKRI. But, on the other hand there are some Indonesian army and police officers who sell the guns and ammunitions. It means that, indirectly, they support the action of security disturbance movement in the mountains or the remote areas of Papua, regardless from motivation of the offender who want to reap financial gain only.
The act of ammunition selling committed by personal officer of TNI and POLRI, made us as the society understood that these problems (shootings) will always happen as long as the guns and ammunitions owned by TNI-POLRI were still be traded by persons who think about their interest only.
Therefore, ammunition selling acts by personal officer of TNI-POLRI can’t be underrated anymore by the law enforcers, because those actions being main cause of the separatist group (OPM) to organize their action such us attacks and shootings to everyone who allegedly stands for NKRI.
B. Suggestion
State should be firm to take actions in order to go against the separatist group, especially to OPM. Repression and law enforcement quickly and firmly should be executed in order to protecting the citizen from any threaten, because the state has a duty to give the comfort and safe feel to the citizen in order to create a peaceful in the society.
We as Indonesia citizens, and also as the people who lived in Papua expect the Indonesian government to take an act decisively for the sovereignty of the State, and also for the pleasure, harmony and safety of the local society. The
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Government is also expected to investigate the practice of ammunition trading committed by personal officer of TNI-POLRI and processing the law enforcement immediately and completely in accordance with the Criminal Law that applicable in Indonesia.
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REFERENCES
Books
Adami Chazawi, 2014, Pelajaran Hukum Pidana, Jakarta, PT. RajaGrafindo Persada.
Andi Hamzah, 2015, Delik-Delik Tertentu Di Dalam KUHP, Jakarta, Sinar Grafika.
Barda Nawawi, 2014, Bunga Rampai Kebijakan Hukum Pidana, Jakarta, Kencana Prenada Media Group.
Mukti Fajar, Yulianto Ahmad, 2010, Dualisme Penelitian Hukum Normatif dan Empiris, Yogyakarta, Pustaka Pelajar.
P.A.F. Lamintang, Theo Lamintang, 2010, Kejahatan Terhadap Kepentingan Hukum Negara, Jakarta, Sinar Grafika.
Rasyid Ariman, Fahmi Raghib, 2015, Hukum Pidana, Malang, Setara Press.
Roni Wiyanto, 2012, Asas-asas Hukum Pidana Indonesia, Bandung, Mandar Maju.
Wirjono Prodjodikoro. 2003, Tindak-tindak Pidana Tertentu di Indonesia, Bandung, PT. Refika Aditama.
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Legislation
Kitab Undang-undang Hukum Pidana Indonesia
Undang-Undang Dasar Republik Indonesia Tahun 1945
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Undang-Undang Republik Indonesia Nomor 43 Tahun 1999 tentang Perubahan Atas Undang-Undang Nomor 8 Tahun 1974 tentang Pokok-pokok
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