House of Representatives
Revoking House Approval on the Selection of Judicial Commission Commissioner
On December 23th 2014, the Constitutional Court revoked the House of Representatives’ authority in selecting the Judicial Commission commissioner. The Constitutional Court Decision No. 16/PUU-XII/2014 interprets that Article 28 paragraph 3 letter c, paragraph 6, and Article 37 of Law 18 Year 2011 on the Judicial Commission relate to the election mechanism of the Judicial Commission commissioner. The Constitutional Court stated the House is only entitled to make public their approval or disapproval of the Judicial Commission commissioner candidacy, which are proposed by President. The article that stipulated that the President is obliged to propose three times the number of Commissioners was annulled.
In consideration, the Constitutional Court affirmed paragraph 3 of Article 24B of the 1945 Constitution clearly mentions that the Judicial Commission commissioners are appointed and terminated by the President with the approval of the House. Therefore, according to the Constitutional Court, it is obvious that The House is obliged to give an approval, not to select. The rationale of the decision is similar with Constitutional Court Decision No. 27/PUU-XI/2013 on the Supreme Court Justice Selection Mechanism. The main argument of the decision is to guarantee the institutional independence and to minimize the option of the House in not selecting the best candidate for the job.
Aside from the Judicial Commission Commissioner selection mechanism, the applicants, Edy Suandi Hamid and Sri Hastuti Puspitasari, both professors in the Islamic Indonesia University I Yogyakarta, also propose that the Constitutional Court test paragraph (1), (10) and (11) of Article 30 of Law 30 Year 2002 on the Corruption Eradication Commission in relation to the commissioner selection mechanism. The Court decided to refuse it since the Corruption Eradication Commission was not formed and regulated by the constitution. (MS)
Law Policy
The Problems of Capital Punishment
The debate on the death penalties or capital punishment has developed along with rejections of granting clemency by President Joko Widodo to a number of convicted persons in drug-related cases. Furthermore, such debates have occured since the existing regulations do not have a firm ground on the death penalty. Starting from the Constitution (Undang-Undang Dasar 1945/UUD 1945) that has a contradictory stance, while on one hand admitting that the right to live is a right that cannot be restricted under any circumstances (Article 28 A and 28 I), but on the other hand it compromises restrictions as long as they are regulated by the law (Article 28 J). Another contradictory stance is Article 9 of Law No. 39 Year 1999 on Human Rights, which states that the right to live is a right that cannot be restricted in any circumstances, but in the explanation section of this particular article, it states that the right to live cannot be restricted in abortion cases and judicial decisions which have a death penalty punishment.
The International Covenant on Civil and Political Rights (ICCPR) has already ratified Law No. 12 Year 2005. Article 6 paragraph (2) from the ICCPR allows the death penalty punishment only for serious crimes. But, according to Article 6 paragraph (6), the attitude of the ICCPR is gradually leaning towards the death penalty abolition. Later on, the Second Optional Protocol to the International Covenant on Civil and Political Rights: Aiming for the Abolition of the Death Penalty was published on 15 December 1989, which explicitly states that the death penalty is no longer tolerable. In Indonesia, currently there are some laws that contain the death penalty, such as the Criminal Code, Law on Eradicating Terrorism, Law on Eradicating Corruption, Law on Eradicating Drug Abuse, and so forth.
The Constitutional Court through several rulings has tried to interpret the Constitutional norm relating to the right to live and the death penalty; but there is no benefit when it comes to certainty. To make matters worse, the Constitutional Court Decision No. 34/PUU-IX/2013 stated that there are no time limitations to Case Reviews (Peninjauan Kembali/PK). The Constitutional Court Decision impacted on how other legal enforcement agencies gave meaning to death penalties. The Attorney General Office gave their doubts on their stance to carry out the death penalty sentence. Previously, the death penalty was carried out after the President rejected a request for clemency from the convict. Whereas according to Criminal Procedure Law, the death penalty sentence could be executed if there is already a fixed ruling, which is on the cassation level (not on the clemency or case review level). From this point, the question if there is any doubt, why does the prosecutor still seek death penalty?
Although the debate over death penalty will still and probably continue to happen, both sides seem to agree that the legal procedures in the Indonesian criminal justice system is unable to guarantee a fair trial process. Since the criminal justice system is flawed itself, it would be wise for the Attorney General Office not to seek the death sentence since there are still other forms of punishment available. (MSG)
Law Policy
Reductions of Sentencing Policies At A Glance
Remissions or reductions in sentences towards convicts and criminals were given by Yasona Laoly; the Minister of Law and Human Rights on December 25th 2014. Representing the Government, the Minister gave remissions to 8.900 convicts. Of that number, 49 of them are corruptors. The remission policy was in contrast with his statement on 23 December 2014. He stated that remissions will be given to 8.900 convicts and will not be given especially for the 150 corruptors. Such a contradictory statement and policy made by the Minister begs further inquiry.
It should be considered that the remissions policy made by Minister of Justice and Human Rights relies on Government Regulation No. 28 Year 2006 and Government Regulation No. 99 Year 2012 on Requirements and Procedures of Correctional Rights. By choosing both Government Regulations a problem has occurred, since the requirements and procedures of remission provision according to Article 34 of Government Regulation No. 28 Year 2006 had been changed and intensified by later regulations, which are Article 34, 34A, 34B, and 34C of Government Regulation No. 99 Year 2012. Such changes are devoted to particular crimes like corruption, drugs and terrorism. For example, on further restrictions on corruption convicts, if the convict has settled for fines and substitution money and received written consideration from the related institution, then the Government needs to reassess the remissions given. If there are inaccuracies, the Ministry should consider revoking the remissions towards the 49 corruption convicts.
In addition, it is necessary to set up the remission in renewal of Law No. 12 Year 1995 on Correctional Framework. It needs to be affirmed that remission (as mentioned in Article 14 (i) of Law No. 12 Year 1995 and its regulation implementations) is not the right, but the authority of the State. In line with the philosophy of remissions and not related with the religion of convict, the remissions should be given on 17 August, the Independence day. The urgency to tighten the remission requirements and procedures include having a clear indicator on ‘good behavior’ since most remissions are based on this. Remission requirements and procedural policies should be rational and are able to be tested from time to time. During the implementation, remission procedures should be thoroughly monitored by having Supervisory and Observer Judges as mandated by Law No. 8 Year 1981 on Criminal Procedure. (MSG)