House of Regional Representatives
DPD’s Initiative to Propose Bill of Persons with Disabilities
On 18 November 2014, the House of Regional Representatives (Dewan Perwakilan Daerah/DPD) held a focus group discussion entitled “Urgency of National Lawmaking about People with Disabilities”. During the FGD, the DPD presented their research report about the urgency of People with Disabilities Bill. The Bill will be proposed by the DPD to be included in the National Legislation Program for 2014-2019 (Program Legislasi Nasional/Prolegnas). The DPD’s research will become an academic draft, which underlies the substance of the Bill.
The DPD invited four reviewers to provide criticism on their research report. One of the reviewers was Fajri Nursyamsi, a researcher from the Indonesian Center of Law and Policies Studies (Pusat Studi Hukum dan Kebijakan Indonesia/PSHK). Other reviewers were Hestu Cipto Handoyo and Imma Indra Dewi as academics from Atmajaya University Yogyakarta, and also the Chairman of the Indonesian Blind Union (Perhimpunan Tuna Netra Indonesia/Pertuni), Aria Indrawati.
Fajri said that the research report is clear enough in explaining about the legal angles, but the perspective should be widened by adding philosophical, political and sociological views. This is important because any law or regulation is not merely a legal document, but will also operate in society, which requires it to comprehend deeper on what the society understands and needs.
Other significant matters that we all have to be aware of is after Indonesia ratified the Convention on the Rights of People with Disabilities (CRPD), the Indonesian people now have to change their paradigm on viewing people with disabilities. Such a new paradigm is to view disabilities as a multi-sector issue, not limited to just social, especially in the case of to respect, protect and fulfill the rights of people with disabilities, which is an obligation for the state to realize all humans and citizens as the same.
Moreover, Fajri explained that the DPD has a strategic position as a part of parliament in Indonesia in discussing until the ratification the Bill of People with Disabilities. During that process, the DPD can show their concern about to respect, to protect, and to fulfill the rights of people with disabilities. (FN)
Legal Policy
HM Prasetyo’s Heavy Burden as Attorney General
After more or less one month, President Joko Widodo has finally appointed HM Prasetyo as Attorney General on 20 November 2014. President Joko Widodo in his Presidential Decision dismissed HM Prasetyo as a member of the House of Representatives, as regulated in Article 239 and 240 of Law No. 17 Year 2014 on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives and Regional House of Representatives (UU MD3/MD3 Law), has just been handed over and accepted by the House leadership in the morning of the inauguration. It should be noted while selecting the attorney general, the President did not involve the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK) and the Center for Financial Transaction Reporting and Analysis (Pusat Pelaporan dan Analisis Transaksi Keuangan/PPATK). It should be considered as a different treatment since the President involved both the KPK and PPATK while selecting his ministers. It should be considered as a positive gesture to involve both institutions in order to build a better public office system.
HM Prasetyo reached his position as Deputy Attorney General for General Crimes in 2005. Several cases which caught the public’s attention during his tenure was the prosecution of Schapelle Corby, Bali Nine bombers, the execution of Tibo, and the transfer of the Bali Bombing II inmates to Nusakambangan Prison. His integrity was put into the spotlight since from Hariono Agus Tjahjono, a suspect in a drug case, aimed to alleviate the demands of his sentence in 2005. The Attorney General ruled the case to be clear. HM Prasetyo’s background as a politician in the Nasdem Party (Partai Nasional Demokrat) adds suspicion about his independence, keeping in mind that there are cases which involve Surya Paloh (Chairman of the Party) regarding Bank Mandiri’s Rp 150 billion credit jam which is still unresolved and still hangs at the Attorney General’s Office.
Joko Widodo’s choice of Attorney General is a figure that has unquestionable independence and integrity, a clear vision of reform, and is ready to take breakthrough actions. Three important activities that are waiting to be resolved are the quality and optimal prosecution of cases, especially cases of corruption at both central and local levels. The 2013 stated that the Attorney General’s Office has examined 1,696 corruption cases on the investigation level and 1,964 on the prosecution level, consecutively. It is expected by the public that both numbers should be pushed and also the completion of gross human rights violations cases; a number of seven cases are still unprocessed the Attorney General’s Office.
Last but not least is the reform agenda for the attorney general office. The reform should be imposed on the attorney general office since the reform program has hardly shown any significant and meaningful change. It could start from a point of a transparent and accountable recruitment system to aim for improvement in minimizing subjectivity and nepotism.
Other topics to be considered in the attorney general reform agendas are the prosecutors disciplining procedures (in 2013, as many as 168 prosecutors were ethically punished), to strengthen the synergy with the Police, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK), Indonesian Financial Transaction Reports and Analysis Centre (Pusat Pelaporan dan Transaksi Keuangan/PPATK), and to build an IT-based case-managing system in order to make the handling of cases more transparent (MSG)
Legal Policy
Homework for the Minister of Law and Human Rights Regarding Rehabilitation for Drug Addicts
The Minister of Law and Human Rights, Yasonna H. Laoly, conducted a meeting with the Chairman of the Supreme Court, M. Hatta Ali, at the Supreme Court Building on 19 November 2014. One of the topics was regarding the regulations on drug addicts. The Director General of Corrections’ 2013 report stated that as many as 56.099 convicts of specific criminal offenses, 52.023 of them are drug cases, with 24.100 of them being drug addicts, not dealers. The minister plans on issuing a regulation to rehabilitate the drug addicts on the basis of the condition of correctional facilities are over-capacity at the moment.
Regulations on rehabilitation for drug addicts are not a new according to Indonesian Law; it is stated in Article 127 of Law No. 35 Year 2009 on Narcotics. While deciding drug addicts’ cases, the judge can decide to order the person to undergo treatment and/or care through rehabilitation. The Supreme Court has followed up that provision by issuing Circular No. 4 Year 2010 on the Placement of Victims of Narcotics Abuse and Addicts to Medical and Social Rehabilitation Services. However, that regulation was never optimally implemented since there are still different point of views in sentencing amongst judges that decide on narcotics cases.
Justice Agung Suhadi once stated that drug addicts will never quit abusing narcotics if they are only given light sentences, especially when only sent to rehabilitation. Such a view could be inaccurate if we base the purpose of punishment in to punish the perpetrators. Currently, the theory of punishment has developed, from its initial purpose to give a deterrent effect to reforming perpetrators to become better citizens of society. Law No. 35 Year 2009 that accommodates rehabilitation is one regulation that describes the shift of the punishment system, from retributive to restorative. Rehabilitation is a form of punishment that has purpose in “healing” addicts, medically, psychologically, and even socially.
In addition to Law No. 35 Year 2009 and Supreme Court Circular No. 4 Year 2010, there are many other regulations that regulate on the issue of rehabilitation for narcotics addicts, from Government Regulation No. 25 Year 2011 on the Obliged Implementation of Reporting Narcotics Addicts to the Joint Regulations produced by the Minister of Law and Human Rights along with several other ministers and leaderships of law enforcement agencies in early 2014. Therefore, the Minister should monitor the implementation of existing policies, not just issue new ones that are no different in substance from the previous ones. (ED)
House of Representatives
The Public Hearing Session Regarding the National Legislation Program Establishment
On 21 November 2014, the House of Representatives held a Public Hearing Session regarding the National Legislation Program (Program Legislasi Nasional/Prolegnas) and also invited three other institutions; The National Law Commission (Komisi Hukum Nasional/KHN), The National Commission on Human Rights (Komisi Nasional Hak Asasi Manusia/KOMNAS HAM) and the Indonesian Center of Law and Policies Studies (Pusat Studi Hukum dan Kebijakan Indonesia/PSHK). The Prolegnas is a law-planning program designed to be discussed by the Legislative Body from the House of Representatives and the Government, according to Article 103 of Law No 12 Year 2011 on the Establishment of Laws and Regulations, which mandates the House of Representatives and Government to be coordinated by the Legislative Board in compiling the Prolegnas. While preparing it, the Legislative Body should also consider proposals and input from the public.
During the public hearing session on 21 November 2014, the National Law Commission, The National Commission of Human Rights, and PSHK gave a presentation on what bill each institution recommends to be prioritized by the House of Representatives in the next period’s Prolegnas. Some of these proposed bills are the Law on Persons with Disabilities, the Law on the Criminal Procedure Code, and the Law on the Criminal Code. The last two bills have already been discussed throughout the House’s session, despite having no conclusion yet.
During the event, PSHK added the importance of monitoring and evaluation on laws. Since the legislation process does not end once a bill becomes a law, a system and integrated method to monitor and assess how law is implemented should be seriously considered as part of law policy making. The House of Representatives actually has a Bureau for Legal and Monitoring Implementations of the Law who practices monitoring and evaluation, however, it seems the House does not find it significant. Therefore, there needs to be a paradigm shift and a breakthrough action in the legislative field. The House should optimize the role of the bureau and determine that the legislative achievements are not only seen when the House successfully produce laws, but also when they successfully evaluate laws according to public interests. This breakthrough action must be started from the establishment of the Prolegnas. (MS)
House of Representatives
MD3 Law Revisions Not on the People’s Side
After the reconciliation of the Red and White Coalition (Koalisi Merah Putih/KMP) and the Outstanding Indonesia Coalition (Koalisi Indonesia Hebat/KIH) on Saturday, 15 November 2014, one of the agreements which will be followed up is the revision of Law No. 17 Year 2014 on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives and Regional House of Representatives (UU MD3 / MD3 Law). Both sides agreed to revise these following matters:
Adding one leader position in every parliamentary fitting to accommodate representatives of KIH.
Revision of Article 74 on the obligations of state officials, government officials, legal entities, citizens or residents to conduct the Houses’ recommendations. Otherwise, for the state and government officials, the House of Representatives can use the rights of interpellation, inquiry, expression, and the right to ask questions. Moreover, the House can ask the President or the competent authority to impose sanctions for them.
According to Article 98, the government should implement the commission’s meeting results or joint parliamentary committees with the government, and if they don’t, the Parliament can exercise their rights and give sanctions.
According to KIH, the revisions of Article 74 and 98 need to be done because it could obstruct the work of the government and weaken the presidential system. The parliament has done targeted the revision of the MD3 Law to be accomplished before entering the recess period on December 5 and will be discussed outside the National Legislation Program (Prolegnas). They argued it is the right procedure regarding Article 23 paragraph (2) b of Law No. 12 Year 2011 on the Establishment of Laws and Regulations, which requires the ‘particular circumstances that ensure the existence of national urgency’.
The revision issues of the MD3 Law have to be broader, for instance, regarding the absence of accountability mechanisms towards the public that reduces accountability and transparency commitments of the Parliament. On the other hand, the mandate of Constitutional Court Decision No. 82 / PUU-XII/2014 should bring back the matter of women’s representation that was removed from the previous MD3 Law (Law No. 27 of 2009).
To set the discussion process outside the Prolegnas is not a correct decision. Disputes between KMP and KIH cannot be interpreted as ‘particular circumstances that ensure the existence of national urgency’. The House should revise the MD3 Law in accordance to the correct procedure; based on strong and comprehensive study, involving the DPD and listen to the aspirations of the people through the public hearing sessions. With a target of completion before 5 December 2014, the whole process reflects the pursuit of political interests of the House itself and will result in the new MD3 Law, which already went through inadequate discussions throughout the whole process. (SMR)