Otto Cornelis (OC) Kaligis as Petitioner requesting the judicial review of Law No. 12 of 1995 on Correctional Institution virtually, Thursday (26/8/2021). Photo by Humas MK/Bayu.
Thursday, August 26, 2021 | 16:02 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 12 of 1995 on Correctional Institution (Correctional Law) on Thursday, August 26, 2021 in the plenary courtroom. The petition No. 41/PUU-XIX/2021 was filed by Otto Cornelis (OC) Kaligis, a prison inmate at the Class I A Correctional Facility of Sukamiskin, Bandung. He challenges Article 14 paragraph (1) letter i of the Correctional Law, which reads, “A prisoner is entitled to a reduction in criminal sentence (remission).”
At the hearing chaired by Constitutional Justice Suhartoyo, the Petitioner explained his constitutional loss. He revealed that the Directorate-General of Corrections’ (DGC) effort to apply for remission for him was hindered by the Government Regulation (PP) No. 99 of 2012 on the Second Amendment to the Government Regulation No. 32 of 1999 on The Terms and Procedures for the Implementation of the Rights of Correctional Inmates.
“[DGC] apply for my remission through the Head of Development Division of Sukamiskin Correctional Facility. It was approved, but then a letter from the [Corruption Eradication Commission (KPK)] stated that it was impossible for me to be given remission due to PP No. 32 of 1999 and because I was not a justice collaborator. How could I be a justice collaborator for something that I know nothing about? I feel this is unfair,” he said at the hearing virtually.
The Petitioner added that the Constitutional Court Decision No. 33/PUU-XIV/2016 stated that the KPK’s authority ended after a decision that has permanent legal force. He believes that the House of Representatives’ (DPR) finding about PP No. 99 of 2012 and justice collaborator has no legal basis. He also added that he did not commit any crime but was sentenced to 10 years in prison.
“I’m not a perpetrator but I was sentenced to 10 years in prison. The Supreme Court’s decision declared that I was not a perpetrator. The main perpetrator was only sentenced to 2 years. I feel a disparity, while an article in Law No. 12 of 1995 states that based on Pancasila and the Constitution, it is clear that I was treated contrary to Article 27—the principle of equality before the law. Because of that, I’m trying to seek justice in the Constitutional Court, even though in my view PP No. 99 unconstitutional, contrary to TAP MPR No. 3 of 2000 on the hierarchy of the law,” he explained.
In his petition, the Petitioner maintains that the Government, through PP No. 99 of 2012, has ignored the mandate of the legal objectives (doelmatighrechts) regarding the conceptual ideas of the corrections, which have been affirmed as the legal basis of the Correctional Law as stated in the general elucidation section, and ignored the rehabilitation and social reintegration function of criminal sentence. The Government emphasizes retribution, especially for certain criminal acts, one of which is corruption. The retribution approach shows that the Government is still guided by the prison system doctrine that applied in Dutch colonial law.
In addition, the Petitioner maintains, PP No. 99 of 2012 is a deviating technical regulation as it limits legal and constitutional rights in relation to the need for stricter requirements and procedures for granting remission, assimilation, and parole to fulfill the community’s sense of justice. The conditional limitation on legal substance in the provisions of the Petitioner’s legal and constitutional rights in PP No. 99 of 2012 is contrary to Article 28J paragraph (2) of the 1945 Constitution.
The Petitioner also believes that the integrated criminal justice system concerns the synchronization of harmony, which can be further distinguished in structural synchronization—harmony in the context of relations between law enforcement agencies, public prosecutors, courts, and correctional institutions.
The norms of criminal law concern not only ‘criminal’ in the sense of punishment, but also treatment (actions), as initiated by the United Nations since 1956 on ‘the treatment of offenders,’ which is adapted by UN member states through criminal policies based on ‘the Basics of Community Treatment.’
In his petitum, the Petitioner requests that the Court declare the provision of Article 14 paragraph (1) letter i of the Correctional Law unconstitutional and not legally binding insofar as interpreted that the granting of remission applies in a discriminatory manner. Should it be maintained, the Petitioner requests that it be interpreted that the granting of remission applies in general, without discrimination. He also requests that the a quo article be interpreted as applicable to all inmates, provided that they show good behavior, have served a criminal sentence of at least 6 months, were not sentenced to life imprisonment, and were not given the death penalty.
Justices’ Advice
In response to the petition, Constitutional Justice Wahiduddin Adams requested that the Petitioner affirm his legal standing and elaborate his constitutional loss.
“Affirm the legal standing with a causal relationship, the losses suffered or potential loss due to the enactment of the article requested for review, whose petitum was read earlier. So, once again, describe specifically the form of loss of constitutional rights Mr. OC experienced and the causal relationship, the loss experienced, or the potential loss to be experienced in more detail. This has not been explained. After it was conveyed earlier, it became clearer, but this needs to be stated in petition,” he explained.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh requested that the constitutional loss be elaborated.
“Mr. OC should elaborate which constitutional rights were violated and what are the specific and actual or potential constitutional rights that were lost. This petition focuses on the implementation more. It should be reinforced in order to convince the justices. In the petition, points 9 and 10 have not had concluding statements that the Petitioner has legal standing to file the a quo petition. Please focus on it in the revision,” he explained.
Before concluding the hearing, Constitutional Justice Suhartoyo informed the Petitioner that he had 14 workdays to revise the petition. The revised petition should be submitted to the Registrar’s Office no later than 2 hours before the hearing on September 8, 2021.
Writer : Utami Argawati
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/30/2021 18:29 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, August 26, 2021 | 16:02 WIB 370