Should political prisoners be pardoned?

As the nation celebrates its 50th anniversary this year, its conscience turns to three well-known political prisoners. Mulyana W. Kusumah examines the judiciary instruments that deal with this issue.

JAKARTA (JP): Minister of Justice Oetoyo Oesman announced recently that three top political prisoners of the aborted communist coup attempt of 1965 have applied for special clemency from the President. They are former deputy prime minister Dr. Subandrio, 81, former commander of the Air Force Omar Dhani, 71, both serving terms of life imprisonment, and Latief Cakraningrat, the 69-year-old former commander of the First Division of the Jakarta Military Command who is still on death row.

Several public figures including Roekmini K. Astoeti, a member of the National Committee for Human Rights and Dr. Roeslan Abdulgani, a prominent political figure, have expressed their opinions on the matter.

Roekmini calls our attention to the fact that, since these prisoners are already aging, it is perfectly reasonable for them to apply for clemency. In a similar tone, Roeslan suggests that it is time for the nation to redeem the sins of the political prisoners.

Granting a political pardon, such as clemency, is a prerogative right of the president. Based on Article 14 of the 1945 Constitution, the President has the right to grant clemency, amnesty, abolition and rehabilitation.

One important implementation of this article was the issuance of Presidential Decree No. 449/1961 dated August 17, 1961, which granted amnesty and abolition to those involved in insurgent movements.

According to the decree, amnesty had been granted to a number of rebel movements including Daud Beureuh in Aceh; Pemerintah Revolusioner Republik Indonesia (PRRI) and Perjuangan Semesta in North and West Sumatra, Riau, North and South Sulawesi, Jambi, Maluku, West Irian and so on; Kahar Muzakar in South Sulawesi, and Kartosuwirjo in West and Central Jawa.

As a follow-up measure, Presidential Decree No. 568/1961 was issued for those who did not obtain the amnesty or abolition because they did not belong to the first category. Also, those who were arrested prior to Aug. 17, 1961, for suspected or actual involvement in insurgency activities may obtain reasonable remission in the form of clemency from imprisonment, which the court shall decide. It was also specified that the Minister of Justice would be assigned the task of preparing everything so that the clemency could be granted.

Clemency by no means constitutes an act of technical-judicial correction. It can be effective in the face of all sentences that have been decided on by the court, both military and civilian, which cannot be altered. Request for clemency is filed with the President by the convict or another person with his consent.

The granting of clemency is also governed by Article 33 of the Criminal Code, which reads: "If a person who is temporarily detained is sentenced to imprisonment, and he himself or another person with his consent should apply for clemency, then the period starting at the time of the filing of the application until the time of the decision by the president shall not be included in the time that he serves his sentence, unless the president in consideration of the weight of the case determines that the entire or part of the waiting time shall be included in the time that the convict serves."

In the case of clemency for Subandrio and his friends, the Supreme Court will advise President Soeharto as to whether he should grant or refuse to grant clemency as governed by Article 35 of Law No. 14, 1985.

Therefore, clemency differs from amnesty in that the latter is capable of eradicating all consequences of criminal law. Clemency also differs from abolition, which repeals a prosecution.

The application for clemency filed by Subandrio and his companions, as well as all the comments that have been circulating in the wake of this issue, has contributed to the discussion of the forms of political mercy that can be granted in commemorating the fiftieth anniversary of Indonesia's independence.

The writer is a lecturer in political sciences at University of Indonesia and Executive Director at the Indonesian Legal Aid Foundation (YLBHI), Jakarta.