On Friday (23/02/2018) Tim Kerja Advokasi Gerakan Rakyat Untuk Daulat Agraria (TeKAD GARUDA) – Advocacy Working Team for Peoples’ Movement for Agrarian Sovereign is submitting the appeal submission on Heri Budiawan, or known as Budi Pego, citizen of Sumber Agung village who was charged as disseminating and developing Communism and Marxism in the protest against Tumpang Pitu gold mine on 4 April 2017. The criminal charge is a clear form of criminalization against the citizens’ struggle in rejecting the existence of gold mine by PT. Bumi Suksesindo (PT. BSI) and PT. Damai Suksesindo (PT. DSI) at Tumpang Pitu, Banyuwangi.
Criminalization against environment and human rights activists has been repeatedly found. In Tumpang Pitu only, investigation done found that criminalisation has been done against fifteen individuals within five cases related to advocacy against mining. Besides Budi Pego there are three other citizens who have been processed as suspects of disseminating communism. Across East Java in 2017 at least 25 citizens were criminalized due to their activities in defending their rights and living space.
Below are the proves of criminalisation that we found:
First, the evidences and witnesses brought before the court show that banners made by the citizens did not display or include any logo of hammer and sickle resembling the logo of communism. When the citizens produced all eleven banners, the police were present. If at that time the banners already contained any image resembling hammer and sickle logo the police would had stopped the production and arrested those involved. This fact had been raised during the trial examination.
Second, the whole eleven banners made by the citizens were displayed on specific places starting from Pulau Merah to the office of Pesanggaran sub-district. None of the banners produced include any picture resembling hammer and sickle logo. The contentious banner that included hammer and sickle logo was existed in the middle of rally, while none of the participants aware of it. Some citizens said that during the protest someone unknown asked them to display a banner which contained writings on rejection against mining activity of PT. BSI. The banner was not produced by the citizens. They only made aware of the hammer and sickle logo when the police showed them pictures of it. The citizens already stated and declared that the contentious banner was not one of those that produced jointly among them since they would remember each of the eleven banners. This fact was confirmed through testimonies made by the witnesses during trial.
Third, the existence of the banner that contains hammer and sickle logo is no longer known. Both the Police and the prosecutor did not manage to present the banner during trial examination but the video documentation of the protest rally. Under Indonesian Criminal Code a video recording is not eligible as evidence without any support of other evidence. Moreover, the trials did not found any evidence that the banner contained hammer and sickle logo was produced at Budi Pego’s house or produced by the participants of protest rally;
Fourth, the allegation of disseminating Communism, Marxism, Leninism teachings against Budi Pego was confirmed by the Court following two reasons: (a) by his role as the coordinator/leader of the protest rally in which a banner containing hammer and sickle logo was seen by the Police; (b) the protest rally was not informed to the Police in writings in accordance to Law on Freedom to Express Opinion in Public. These two reasons do not have any correlation whatsoever with the article on the prohibition to disseminate Communism, Marxism, Leninism teachings. Moreover, based on the testimonies from witnesses and other evidences it is not founded that Budi Pego was the protest coordinator, since his role was the same as other participants who equally reject the mining. Concluding that Budi Pego was the coordinator is merely and assumption or unfounded illusion.
We believe that 10 months imprisonment sentence given by the Assembly of Judges to Budi Pego out of 7 years indictment from the Prosecutor was still something forced. The Judges applied the verdict only based on assumption that Budi Pego strongly assumed as knowing the existence of an image resembling hammer and sickle and did not try to stop the protest. This is in contrary to the fact found during trials that the Police were also present and guarded the rally and therefore should be assumed as knowing the contentious banner and did not do their legal responsibility to secure and disperse the rally after knowing such banner. Given the omission, one then could conclude that the criminal charge against Budi Pego and four other suspects are criminalisation against environment activists who rejects the gold mines at Tumpang Pitu.
In their consideration, the Assembly of Judges of Banyuwangi District Court has wrongly applied the law by using one offence to prove another. They used a violation of the Laws on Freedom to Express Opinion in Public to prove violation of Laws on the Amendment of Criminal Code. This practice is a misuse of the law to silence peoples’ struggle against the gold mines at Tumpang Pitu.
Criminalization against citizens who fight for the sustainability of their environment is a tool that often used to repress human rights. This is in contrary to Article 66 of Law No. 32/2009 on Protetion and Management of Environment which provides that "Everyone who fights for the right to the well and healthy environment can not be charged criminally or civically." However, this article means nothing before the greed of investment that threatens the safety of the environment and living space of the people.
Therefore TeKAD GARUDA has the following positions:
1. Urges the Assembly of Judges of East Java High Court to examine this case with the aim to make right the judgment of Budi Pego and release him;
2. Urges the State and relevant institutions to stop the mining activity at Tumpang Pitu for the safety of living space for the people of Banyuwangi, and Java.
3. Strongly condemns all forms of criminalization against peoples' movement who fight for the manifestation of agrarian justice and sustainability of living space, and stop the criminal process of the other three individuals of Sumberagung who have been declared as suspects beside Budi Pego/Heri Budiawan.
Contact Persons:
Jane Aileen, Indonesia Legal Aid Foundation (YLBHI) – jane@ylbhi.or.id
Wachid Habibullah, Surabaya Legal Aid Institute (LBH Surabaya) wachideagle@gmail.com : 087853952524
Wahyu Eka Setyawan, Walhi Jatim
: 082145835417
TeKAD GARUDA :
1. YLBHI
2. YLBHI-LBH Surabaya
3. National Executive of WALHI
4. WALHI East Jawa
5. JATAM
6. For Banyuwangi
7. KontraS Surabaya
8. FNKSDA
9. LAMRI
