Principal Petitioner Tafsir Nurchamid (middle) and legal counsels in the ruling hearing of the judicial review of the Law on Correctional Institution, Wednesday (30/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) rejected the petition filed by lecturer Tafsir Nurchamid, who is serving a sentence at the Sukamiskin Penitentiary, Bandung. The decision No. 90/PUU-XVI/2018 was read out in the ruling hearing of the judicial review of Law No. 12 of 1995 on Correctional Institution and Law No. 31 of 2014 on the Amendment to Law No. 13 of 2006 on the Protection of Witness and Victim (PSK Law) on Wednesday (30/1/2019) in the Plenary Courtroom of the Constitutional Court. 

In the legal considerations read out by Constitutional Justice Arief Hidayat, the Court considered that based on the subject matter of the Petitioners\' petition on the constitutionality of Article 14 paragraph (1) letters i and k of the Correctional Institution Law, that claimed it had caused discriminatory treatment toward convicts, the Court was of the opinion in accordance with Decision Number 54/PUU-XV/2017 dated November 7, 2017 and Decision Number 82/PUU-XV/2017 dated January 31, 2018, which declared the petitions on the a quo article rejected. The legal considerations of the decisions state that remission is a human right, a not constitutional right. Therefore, its implementation is in accordance with the laws and regulations. Thus, Justice Arief added, restrictions and conditions that must be met by a prisoner to obtain parole and remission do not violate the rights of prisoners. However, in this case, it needs to be emphasized that there is an assessment of the conditions for obtaining remission and parole since the convicts received the status of convicts and started serving their prison sentence. Based on these considerations, the Court rejected the petition for the judicial review of the a quo law.

"Therefore, the Court did not find any new constitutional reasons including in the a quo petition so mutatis mutandis it also applies as a legal consideration to the a quo petition. Therefore, the a quo petition is unreasonable according to law," Justice Arief explained before a hearing chaired by Chief Justice of the Constitutional Court Anwar Usman, in the presence of the other constitutional justices. 

Concrete Case 

Related to Article 1 number 2 and Article 10A paragraph (3) letter b of the PSK Law that the Petitioner considered having multiple interpretations and gave rise to discriminatory treatment of convicts, Constitutional Justice I Dewa Gede Palguna said that the Court needed to explain the substance of the witnesses and its mechanism and arrangement. As with other inmates, he added, the Petitioner basically had the right to apply for remission and parole as regulated by the PSK Law. However, in the a quo case, there is the fact that in the process of requesting for these rights, the Petitioner experienced problems. Therefore, the Court saw this as not due to the unconstitutionality of norms, but rather a concrete case experienced by the Petitioner. Upon observation, the Petitioner put forward an elaboration of the procedural aspects of the submission process as a justice collaborator rather than explaining the aspects of the contradiction of the a quo norm with the articles of the 1945 Constitution that were used as the basis for judicial review. "Based on legal considerations, the argument of the Petitioner that Article 1 number 2 and Article 10A paragraph (3) letter b of the PSK Law is contrary to Article 28D paragraph (1), Article 28H paragraph (2), and Article 28I paragraph (2) of the 1945 Constitution is soundless according to law," Justice Palguna said. (Sri Pujianti/LA/Yuniar Widiastuti)