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President Joko Widodo. Photo by: RES
The existence of the presidential pardon, either in form of remissions or sentence reductions, is essentially aimed at protecting human rights and justice. The right of citizens to be treated justly should not be subject to any time limits, especially when a convicted felon has filed for a presidential pardon.
Andi Muhammad Asrun, a law lecturer at Bogor’s Pakuan University, delivered his expert opinion on the recent judicial review of Law No. 5 of 2010 on Presidential Pardons in the courtroom of the Constitutional Court on Monday, 2 November 2015.
During his address, Mr. Asrun stated that time restrictions, as regards the filing of requests for presidential pardons, fundamentally restricted, obstructed, and contradicted the constitutional right of the president as head of state to grant presidential pardons.
Mr. Asrun explained that the underlying rationale behind allowing for presidential pardons related to notions of human rights and justice. In the context of justice, a presidential pardon should be granted if an unfair criminal verdict has been delivered. As for matters pertaining to human rights, a pardon can be granted if a convicted party has fallen seriously ill, for example.
These factors should be the basis upon which the president can grant presidential pardons, according to Mr. Asrun. A judge presiding over a given case should prioritize matters of justice and set aside legal certainties when these two domains clash, Mr. Asrun stated.
Mr. Asrun further argued that the protection of human rights in the form of justice is an essential element of the rule of law in any state. A presidential pardon also represents a form of human-rights protection from any mistreatment by law enforcement officers that occurs during the judicial process. For example, judges may ultimately rule unfairly on a given case owing to external pressures deriving from outside of the relevant judicial authorities. Such pressures may be political or social in nature.
Mr. Asrun thus believes that it is wrong to mandate any time limits as regards the filing of requests for presidential pardons. As a consequence of this belief, it was reasonable to declare that Article 7 (2) of the Presidential Pardon Law ran contrary to the spirit of the 1945 Constitution.
In Asrun’s view, Law No. 22 of 2002regarding Presidential Pardons should be reinstated, as the setting of any time restriction regarding the filing of requests for presidential pardons was unreasonable and, ultimately, unjust.
Mr. Asrun explained that many countries around the world do not set out such time limitations in their laws or constitutions. India, South Korea, the United Kingdom, the USA, and Malaysia, for example, are all countries that do not regulate presidential pardons in this way.
"The Constitutions of India and South Korea do not set any time restrictions as regards the filing of requests for presidential pardons," explained Asrun.
Also present at the constitutional court on Monday was law expert Firman Wijaya, who expressed his agreement that it was unnecessary to limit the filing of requests for presidential pardons in either space or time. In Wijaya’s view, the filing of a presidential pardon represents a substantive means of justice and is the absolute right of the president, who can exercise this right in order to maintain the welfare and harmony of society in general.
“How can the president preserve justice if the filing of presidential pardon is limited in both space and time? It has already been proven that a presidential pardon cannot be sued in the State Administrative Court,” Wijaya stated on Monday.
Wijaya asserted that a presidential pardon should not be associated with a judge's ruling against a convicted party, but should instead be seen as the inalienable right of a citizen who is asking for forgiveness from the president in his role as head of state.
The judicial review itself was submitted by Su’ud Rusli, who has been sentenced to death for the murder of the President Director of PT Asaba, Budyharto Angsono. Mr. Rusli is accompanied by Marselinus Edwin Hardian, a law student at At-Thahiriyah University.
The reviewed article sets a time limit for the filing of requests for presidential pardons at a maximum of one year after a legally binding court decision. This article is believed to be an injustice, as the filing of a request for a presidential pardon more than one year after an inkracht decision would result in failure and rejection, as the mandated time limit would have already expired. In this case, the presidential pardon filed by Suud Rusli in 2014 was rejected by President Joko Widodo on 31 August, 2015.
The applicant argued that the right to file a request for a presidential pardon was the inalienable right of every citizen and was guaranteed by the country’s constitution. Thus, the right to file for a presidential pardon from the head of state should not be limited in time, as this would contradict the spirit of justice guaranteed by the 1945 constitution.
According to Mr. Rusli, presidential pardons are not included as a part of the “open legal policy”, which allows lawmakers to set various limits and restrictions. Rusli has thus demanded that Article 7 (2) of the Presidential Pardon Law be removed, as it contradicts the 1945 constitution.
Mr. Rusli has been serving out his sentence in Porong Sidoarjo prison since 2008 and has now been behind bars for approximately 12 years. The former Marine, who once held the rank of Corporal Two, was sentenced to death by Military Court II-08 Jakarta in February of 2005. Rusli was found guilty of the 2003 premeditated murder f the head of PT Asaba, Budyharto Angsono. The guilty verdict was upheld by High Military Court Decision II Jakarta in August of 2005, as well as by Supreme Court decision No. PUT/34-K/MIL/2006Pid/2010, dated 7 July 2006.
(sp)
Ari Pramuditya, Agus Sahbani
President Joko Widodo. Photo by: RES
The existence of the presidential pardon, either in form of remissions or sentence reductions, is essentially aimed at protecting human rights and justice. The right of citizens to be treated justly should not be subject to any time limits, especially when a convicted felon has filed for a presidential pardon.
Andi Muhammad Asrun, a law lecturer at Bogor’s Pakuan University, delivered his expert opinion on the recent judicial review of Law No. 5 of 2010 on Presidential Pardons in the courtroom of the Constitutional Court on Monday, 2 November 2015.
During his address, Mr. Asrun stated that time restrictions, as regards the filing of requests for presidential pardons, fundamentally restricted, obstructed, and contradicted the constitutional right of the president as head of state to grant presidential pardons.
Mr. Asrun explained that the underlying rationale behind allowing for presidential pardons related to notions of human rights and justice. In the context of justice, a presidential pardon should be granted if an unfair criminal verdict has been delivered. As for matters pertaining to human rights, a pardon can be granted if a convicted party has fallen seriously ill, for example.
These factors should be the basis upon which the president can grant presidential pardons, according to Mr. Asrun. A judge presiding over a given case should prioritize matters of justice and set aside legal certainties when these two domains clash, Mr. Asrun stated.
Mr. Asrun further argued that the protection of human rights in the form of justice is an essential element of the rule of law in any state. A presidential pardon also represents a form of human-rights protection from any mistreatment by law enforcement officers that occurs during the judicial process. For example, judges may ultimately rule unfairly on a given case owing to external pressures deriving from outside of the relevant judicial authorities. Such pressures may be political or social in nature.
Mr. Asrun thus believes that it is wrong to mandate any time limits as regards the filing of requests for presidential pardons. As a consequence of this belief, it was reasonable to declare that Article 7 (2) of the Presidential Pardon Law ran contrary to the spirit of the 1945 Constitution.
In Asrun’s view, Law No. 22 of 2002regarding Presidential Pardons should be reinstated, as the setting of any time restriction regarding the filing of requests for presidential pardons was unreasonable and, ultimately, unjust.
Mr. Asrun explained that many countries around the world do not set out such time limitations in their laws or constitutions. India, South Korea, the United Kingdom, the USA, and Malaysia, for example, are all countries that do not regulate presidential pardons in this way.
"The Constitutions of India and South Korea do not set any time restrictions as regards the filing of requests for presidential pardons," explained Asrun.
Also present at the constitutional court on Monday was law expert Firman Wijaya, who expressed his agreement that it was unnecessary to limit the filing of requests for presidential pardons in either space or time. In Wijaya’s view, the filing of a presidential pardon represents a substantive means of justice and is the absolute right of the president, who can exercise this right in order to maintain the welfare and harmony of society in general.
“How can the president preserve justice if the filing of presidential pardon is limited in both space and time? It has already been proven that a presidential pardon cannot be sued in the State Administrative Court,” Wijaya stated on Monday.
Wijaya asserted that a presidential pardon should not be associated with a judge's ruling against a convicted party, but should instead be seen as the inalienable right of a citizen who is asking for forgiveness from the president in his role as head of state.
The judicial review itself was submitted by Su’ud Rusli, who has been sentenced to death for the murder of the President Director of PT Asaba, Budyharto Angsono. Mr. Rusli is accompanied by Marselinus Edwin Hardian, a law student at At-Thahiriyah University.
The reviewed article sets a time limit for the filing of requests for presidential pardons at a maximum of one year after a legally binding court decision. This article is believed to be an injustice, as the filing of a request for a presidential pardon more than one year after an inkracht decision would result in failure and rejection, as the mandated time limit would have already expired. In this case, the presidential pardon filed by Suud Rusli in 2014 was rejected by President Joko Widodo on 31 August, 2015.
The applicant argued that the right to file a request for a presidential pardon was the inalienable right of every citizen and was guaranteed by the country’s constitution. Thus, the right to file for a presidential pardon from the head of state should not be limited in time, as this would contradict the spirit of justice guaranteed by the 1945 constitution.
According to Mr. Rusli, presidential pardons are not included as a part of the “open legal policy”, which allows lawmakers to set various limits and restrictions. Rusli has thus demanded that Article 7 (2) of the Presidential Pardon Law be removed, as it contradicts the 1945 constitution.
Mr. Rusli has been serving out his sentence in Porong Sidoarjo prison since 2008 and has now been behind bars for approximately 12 years. The former Marine, who once held the rank of Corporal Two, was sentenced to death by Military Court II-08 Jakarta in February of 2005. Rusli was found guilty of the 2003 premeditated murder f the head of PT Asaba, Budyharto Angsono. The guilty verdict was upheld by High Military Court Decision II Jakarta in August of 2005, as well as by Supreme Court decision No. PUT/34-K/MIL/2006Pid/2010, dated 7 July 2006.
(sp)