Should political prisoners be pardoned?

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.