The constitutional justices ruled the judicial review of Law No. 12 of 1995 on Correctional Institution y for case No. 41/PUU-XIX/2021 at a plenary hearing on Wednesday (9/29/2021). Photo by Humas MK/Ilham W.M.
Wednesday, September 29, 2021 | 16:58 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) rejected the judicial review petition of Law No. 12 of 1995 on Correctional Institution (Correctional Law) by Otto Cornelis (O.C.) Kaligis virtually on Wednesday, September 29, 2021.
At the ruling hearing chaired by Chief Justice Anwar Usman, the Court ruled that the subject matter of the Petitioner’s petition was legally unfounded in its entirety and the entire petition was rejected. “[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar reading out the Decision No. 41/PUU-XIX/2021 alongside the other eight constitutional justices.
Reading out the Court’s legal considerations, Constitutional Justice Suhartoyo stated that Article 14 paragraph (1) of the Correctional Law was not discriminatory as it only regulates the rights of inmates, including to receive remission (letter i) without any conditions for those rights. The provision is the state’s effort to protect all citizens, including inmates. This means that the state is proactive in allowing them rights and privileges based on law. Such rights and privileges are not basic rights and are outside of the constitutional rights of citizens referred to in the Constitution.
Therefore, Justice Suhartoyo added, the provisions on the subjects, objects, requirements, change, and revocation of those rights and privileges are determined by the state through laws. In this context, the provision of legal rights to some elements of society might be seen as discriminatory by those who do not receive them. Meanwhile, to the recipient (subject), discrimination occurs in relation to the requirements or implementation of the norm.
“Because the Petitioner is the subject of the right, in casu the right to remission, the formulation of the norm, which only concerns the rights of inmates (including the Petitioner) cannot be interpreted other than what is expressly stated in the a quo norm. Therefore, the Court stresses that the provision of Article 14 paragraph (1) letter i of Law No. 12 of 1995 is not multi-interpretive or discriminatory, so the Petitioner’s argument that the a quo norm violates Article 28J paragraph (1) of the 1945 Constitution is legally unfounded,” he stressed.
Also read: OC Kaligis Says Remission System Discriminatory
Provision on Remission
Justice Suhartoyo added that the Elucidation of Article 14 paragraph (1) letter i of the Correctional Law, which the Petitioner also believed to be multi-interpretive or discriminatory against inmates and in violation of Article 28J paragraph (1) of the 1945 Constitution, only concerns an official interpretation of the norm regulated in the body of the law and is not in conflict with the material regulated in the body of the law.
The elucidation stresses that the right to remission can be given when the requirements regulated by the law are met, because when the Correctional Law was passed, there had been at least two regulations that technically regulated remission that Article 14 paragraph (1) letter i of the Correctional Law refer to: the Presidential Decree No. 120 of 1955 on Special Grants and the Decree of the Minister of Justice No. 04.HN.02.01 of 1988 on Additional Remission for Inmates Who Donor Organ and Blood.
The Petitioner’s argument that intervention in the determination of remission for inmates, which caused stricter implementation and was thus in violation of Article 28J paragraph (1) of the 1945 Constitution, was not a constitutionality issue but an implementation one, the Court asserted. The mechanism of remission in the a quo law is related to a government regulation that requires inmates sentenced for corruption to receive remission only if declared as a justice collaborator.
Authority to Grant Remission
The Court also asserted that the authority to grant remission belongs to the correctional facilities and that such an authority cannot be intervened by other institutions, let alone any counterintuitive intervention. As such, correctional facilities must assess the opportunity of remission objectively since the inmates come into the facilities, not matters occurring beforehand.
After receiving a decision that is final passed by a judge, an inmate serves their sentence and undergo a process so that they can return to society and have their rights fulfilled without exception, as far as the requirements laid out in the Correctional Law are met.
“An elucidation to a norm of a law must not be added, let alone with a requirement that is not in line with the main norm in the law in question,” Justice Suhartoyo said.
Also read: O.C. Kaligis Revises Petition on Correctional Law
At the preliminary hearing on Thursday, August 26, 2021 Otto Cornelis (O.C.) Kaligis, a prison inmate at the Class I A Correctional Facility of Sukamiskin, Bandung, explained his constitutional loss. He revealed that the Directorate-General of Corrections’ (DGC) effort to apply for remission for him was hindered by 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. He added that he had not committed any crime but was sentenced to 10 years in prison.
In his petition, the Petitioner maintained that the Government, through the Government Regulation (PP) No. 99 of 2012, had 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 emphasized retribution, especially for certain criminal acts, one of which is corruption. The retribution approach shows that the Government was still guided by the prison system doctrine that applied in Dutch colonial law.
In addition, the Petitioner argued, PP No. 99 of 2012 was 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 was contrary to Article 28J paragraph (2) of the 1945 Constitution.
Writer : Utami Argawati
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/3/2021 12:40 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, September 30, 2021 | 16:58 WIB 236