JAKARTA POST,
01 Agustus 2013
|
Following
the prison breaks in Medan and Batam a few weeks ago, a debate concerning our
national correctional system has arisen, particularly on the issue of the
implementation of Government Regulation No. 99/2012, which enshrines the rules
and procedures for the fulfillment of prisoner’s rights.
Under this regulation, a significant ruling that has sparked concern among prisoners is the restriction on terms and conditions of, among other things, remission for inmates convicted of specific crimes (corruption, narcotics, terrorism, gross human rights violations and organized transnational crimes). On top of public debate concerning the applicability of the regulation, a recent submission for judicial review of the regulation to the Supreme Court might be a prime step in establishing legal certainty for these “special” convicts’ right to remission.
Most of the arguments opposing the government regulation are basically construed on the logic of the violation of human rights. Such logic includes convicts’ rights, irrespective of what kind of crimes they have perpetrated, as part of human rights and fundamental freedoms, which the state has to protect and uphold. As a consequence, the regulation, which specifically restricts terms and conditions of remission for extraordinary crimes, could be deemed as a human rights infringement, due to the discriminative nature of its application.
Apart from any other formal juridical arguments, it is important for us to view these problematic prisoner’s rights from a human-rights standpoint. Essentially, I would defend the view of prisoner’s rights being part of human rights that should be protected and upheld by the state, in particular by the government through the Law and Human Rights Ministry. Furthermore, in the context of remission as a right, a human-rights approach can be discerned from the perspective of the state’s duty to proportionally fetter prisoners’ liberty of movement and to ensure their right to humane treatment during detention.
The first thing we should have in mind is that these two rights are derogable rights, which the state has the authority to legitimately limit. Under human-rights laws, this limitation has to be based on legitimate aims, namely the maintenance of public order and public safety, along with the view that it should be regarded necessary in a democratic society. However, whilst the state has to exhaustively enumerate such limitation considerations, such a policy ought to be proportionate as well in order to safeguard prisoners’ rights.
Hence, public justice, the basic consideration in the enactment of the government regulation, finds its technical legal justification in the interest of preserving public order and national security. One thing we shall have to examine in the judicial review at the Supreme Court is whether the terms and conditions set out in the government regulation are proportionate in the sense of the conflict between public justice and prisoners’ rights.
A guiding norm regarding proportionality could be cited in the Human Rights Committee for the International Covenant on Civil and Political Rights, which mentions in its general comment on the freedom of movement that “... the restrictions [to freedom of movement] serve permissible purposes; they must also be necessary for public protection. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieving their protective function; they must be the least intrusive instrument among those that might achieve the desired result; and they must be proportionate to the interest of the protected”.
Based on the aforementioned reasoning, I would argue that the restrictions in the government regulation fulfils human rights norms and principles, as they attempt to strike a balance between the perspectives of the interest of the nation as a whole while at the same time also maintaining prisoners’ rights to remission. Hence, it would be proper to give the regulation some time to be applied in order to enable us to see its effectiveness in achieving the desired result.
All in all, human rights are claimed, although they are not absolute. The protection of prisoners’ rights as part of wider human rights cannot be separated from the logic of legitimate limitation. Thus, as a form of legal development, the Supreme Court may have to take a look at this perspective in determining the legality of the problematic 2012 government regulation. ●
Under this regulation, a significant ruling that has sparked concern among prisoners is the restriction on terms and conditions of, among other things, remission for inmates convicted of specific crimes (corruption, narcotics, terrorism, gross human rights violations and organized transnational crimes). On top of public debate concerning the applicability of the regulation, a recent submission for judicial review of the regulation to the Supreme Court might be a prime step in establishing legal certainty for these “special” convicts’ right to remission.
Most of the arguments opposing the government regulation are basically construed on the logic of the violation of human rights. Such logic includes convicts’ rights, irrespective of what kind of crimes they have perpetrated, as part of human rights and fundamental freedoms, which the state has to protect and uphold. As a consequence, the regulation, which specifically restricts terms and conditions of remission for extraordinary crimes, could be deemed as a human rights infringement, due to the discriminative nature of its application.
Apart from any other formal juridical arguments, it is important for us to view these problematic prisoner’s rights from a human-rights standpoint. Essentially, I would defend the view of prisoner’s rights being part of human rights that should be protected and upheld by the state, in particular by the government through the Law and Human Rights Ministry. Furthermore, in the context of remission as a right, a human-rights approach can be discerned from the perspective of the state’s duty to proportionally fetter prisoners’ liberty of movement and to ensure their right to humane treatment during detention.
The first thing we should have in mind is that these two rights are derogable rights, which the state has the authority to legitimately limit. Under human-rights laws, this limitation has to be based on legitimate aims, namely the maintenance of public order and public safety, along with the view that it should be regarded necessary in a democratic society. However, whilst the state has to exhaustively enumerate such limitation considerations, such a policy ought to be proportionate as well in order to safeguard prisoners’ rights.
Hence, public justice, the basic consideration in the enactment of the government regulation, finds its technical legal justification in the interest of preserving public order and national security. One thing we shall have to examine in the judicial review at the Supreme Court is whether the terms and conditions set out in the government regulation are proportionate in the sense of the conflict between public justice and prisoners’ rights.
A guiding norm regarding proportionality could be cited in the Human Rights Committee for the International Covenant on Civil and Political Rights, which mentions in its general comment on the freedom of movement that “... the restrictions [to freedom of movement] serve permissible purposes; they must also be necessary for public protection. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieving their protective function; they must be the least intrusive instrument among those that might achieve the desired result; and they must be proportionate to the interest of the protected”.
Based on the aforementioned reasoning, I would argue that the restrictions in the government regulation fulfils human rights norms and principles, as they attempt to strike a balance between the perspectives of the interest of the nation as a whole while at the same time also maintaining prisoners’ rights to remission. Hence, it would be proper to give the regulation some time to be applied in order to enable us to see its effectiveness in achieving the desired result.
All in all, human rights are claimed, although they are not absolute. The protection of prisoners’ rights as part of wider human rights cannot be separated from the logic of legitimate limitation. Thus, as a form of legal development, the Supreme Court may have to take a look at this perspective in determining the legality of the problematic 2012 government regulation. ●
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