No
assessment in rejection of all clemency appeals
Todung Mulya Lubis ; A senior
partner
at Lubis, Santosa & Maramis Law Firm in
Jakarta;
Currently a lawyer for the death row convicts
Andrew Chan and Myuran Sukumaran
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JAKARTA POST, 12 Februari 2015
Under Article 14 of the 1945 Constitution, the President has the
authority to grant clemency to a petitioner who asks for mercy, admitted
wrongdoings and can claim to have transformed. The petitioner may be a
first-degree murderer, drug offender, corrupt official, tax evader or sex
molester.
Whomever is convicted under the law can exercise his or her
right to request clemency, irrespective of the court sentence. Anyone,
including foreigners, are eligible for clemency. In making his decision on
requests, the President considers opinions from the Supreme Court.
President Joko “Jokowi” Widodo has stated he will reject the
clemency applications of all drug offenders on death row.
In fact, some of the applications have already been rejected,
and six people of various nationalities have already been executed.
More individuals will soon be executed, though the executions
may be postponed due to the ongoing debacle between the National Police and
the KPK (Corruption Eradication Commission).
President Jokowi seems to be the only president to have
regularly exercised his prerogative rights on clemency: he has already
rejected some 64 clemency requests by drug offenders.
His rationale is that Indonesia is experiencing a “drug emergency”, where at least 50 people
die of drug-related deaths every day. Therefore, no mercy shall be given, no
compromise shall be struck.
Drugs are extremely dangerous, especially for the younger
generation. No one disagrees about that. Fighting drugs is non-negotiable,
and we have to do everything possible within our power to do so.
However, we have to be able to distinguish between the
masterminds of drug production and distribution and those who are merely
retailers or agents.
We have to understand the social and economic backgrounds of the
people in the drug business. For example, most current drug offenders come
from poor families.
It is wrong, therefore, to put all the parties involved into one
big basket. Not all drug traffickers deserve the death sentence. Punishment
must take the social and economic backgrounds of offenders into account.
Punishment must be tailored to the circumstances.
When President Jokowi cited the current “drug emergency” as
justification for rejecting all clemency applications, it was a
misinterpretation of clemency. Legally, it is wrong to reject clemency
applications using a blanket argument.
Clemency is stipulated in the 1945 Constitution as an
extra-legal recourse for a petitioner to request forgiveness on the basis of
successful rehabilitation.
The promise must also be backed up by evidence that the
petitioner has transformed himself or herself during the period in prison.
Time and again, we have encountered people reborn as totally new
people while serving time in prison.
Clemency must not be viewed as complete forgiveness of a
petitioner’s sentence. The President has the right to grant partial clemency.
He could grant clemency to reduce a death sentence, for instance, to 20 years
in prison.
At present, there has never been an assessment or evaluation of
petitioners undertaken by the Supreme Court or the President.
The petitioner, time and again, is treated as a mere number, not
as a human being: both the Supreme Court and the President are blind to
rehabilitation efforts carried out by clemency applicants, and the fact that
some have become good persons.
By not undertaking any assessment whatsoever, both the Supreme
Court and the President can only see dangerous criminals.
This is the defect in our country’s clemency mechanism. Needless
to say, it is a serious mistake that undermines the power of change and
transformation in human life and could be an unconscious refusal to
acknowledge forgiveness.
If this is the case, what is the point of clemency? Shouldn’t we
just remove the above Article 14 from the Constitution? ●
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