Corresponding Author: I
Gede Budhi Mahayana
E-mail: [email protected]
INTRODUCTION
Premeditated murder is a common form of homicide, as
defined in Article 338 of the Indonesian Penal Code (KUHP), but it is carried
out with prior planning (Wulandari, 2020). Premeditation (voorbedachte rade) means that there
is an intention to kill, and the perpetrator has a period of time to calmly
consider how the murder will be executed (Bremi, 2021). The difference between premeditated murder and
regular murder lies in the fact that in murder cases covered by Article 338 of
the KUHP, the act is committed immediately upon forming the intent. In
premeditated murder, the execution is postponed after the intent arises,
allowing the perpetrator to plan and contemplate how the murder will be carried
out (Darmayanti &
Tarigan, 2023). There is a significant gap of time between the
formation of the intent to kill and the actual execution, giving the
perpetrator the opportunity to decide whether to proceed, cancel, or plan how
to commit the murder (Yanri, 2017). An example of premeditated murder that occurred in
Indonesia is the case of the "Kopi Siandia" in 2016, where Mirna died
after drinking coffee laced with cyanide. The suspect, Jessica Kumala Wongso,
was sentenced to 20 years in prison. Another recent case of premeditated murder
in Indonesia happened in 2022, involving the planned murder of Brigadier J by
Ferdy Sambo.
Premeditated
murder, as defined in Article 340 of the Indonesian Penal Code (KUHP), states: "Anyone
who intentionally and with premeditation takes another person's life is
subject, because of premeditated murder, to the death penalty or life
imprisonment or imprisonment for a specified term, up to a maximum of twenty
years."
The Republic of Indonesia is a state based on the rule
of law, as stated in Article 1 Paragraph (3) of the 1945 Constitution of the
Republic of Indonesia (Marbun, 2014). Every person within the territory of Indonesia must
comply with the laws applicable in Indonesia, and no one is exempt from the
law. All actions must be based on and have consequences in accordance with the
laws and regulations of the Republic of Indonesia, aiming to realize a society
and a state that are orderly, prosperous, and just in order to achieve the
goals of the state as mandated in the preamble of the 1945 Constitution �(PAF Lamintang &
Theo Lamintang, 2023).�����
The protection and recognition of human rights (HR) of
every individual or citizen are obligations for the state as a logical
consequence of its establishment as a legal entity. Indonesia is a state
governed by the rule of law (Article 1, paragraph (2) of the 1945 Constitution)
and is obliged to protect and acknowledge the human rights of every individual
or citizen. This declaration is followed by the statement that every citizen
has an equal position before the law, known as the principle of equality before
the law, as stated in Article 27, paragraph (1) of the 1945 Constitution. In
addition to the obligation to protect and recognize human rights, there is also
the obligation of legality, where the government must act in accordance with
and on behalf of the law. The principle of legality is designed to regulate
government power to prevent the abuse of power, and this principle is also
accompanied by a system of checks and balances in the concept of a state
governed by the rule of law (Fauzi, 2021).
One form of government power that recognizes human
rights, accompanied by the principle of legality in the system of checks and
balances among the judicial, executive, and legislative branches, is the right
to grant criminal accountability release to individuals, namely pardon,
amnesty, and abolition (Anggraini et al.,
n.d.). This right is granted to the president under the
mandate of the 1945 Constitution of the Republic of Indonesia (UUD 1945) in
Article 14, with limitations imposed by the system of checks and balances (Sunarto, 2016). The limitation of this right is that the president
can grant a pardon upon the request of a convicted person, taking into account
the considerations of the Supreme Court. Therefore, a pardon can be considered
as a form of presidential pardon granted after a convicted person submits a
request to the President. The authority to grant a pardon under Article 14 (1)
of the UUD 1945 has been delegated to Law No. 22 of 2002 concerning Pardon
(Pardon Law) and Government Regulation No. 67 of 1948 concerning Pardon (Pardon
Regulation) (Fauzi, 2021). Based on the description above, the objective of
this research is to analyze the legal potency of presidential pardons in
mitigating sentences for convicts in cases of premeditated murder.
METHOD
This type of
research is normative legal research. The term normative legal research
originates from English, "normative legal research," and Dutch,
"normatief juridisch onderzoek." Normative legal research, also known
as doctrinal legal research or legal dogmatic research or legislative research,
which in Anglo-American literature is referred to as legal research, is
internal research within the discipline of law (Muhaimin, 2020). In this research, several approaches are utilized:
first, the Statutory Approach. This approach involves examining all relevant
laws and regulations related to the legal issue being investigated. Second, the
Historical Approach. This approach entails studying the background and
development of regulations concerning the issue at hand.
The bibliographic materials used in this
research were collected from primary legal sources and secondary legal sources.
Primary legal sources include binding legal materials consisting of fundamental
norms or principles, such as the preamble of the 1945 Constitution, Basic
Regulations, Legislation, Uncodified legal materials like customary law,
Jurisprudence, Treaties, and Legal materials from the colonial era that are
still in effect, such as the Criminal Code. The primary legal sources used in
this research include the 1945 Constitution of the Republic of Indonesia, Law
No. 22 of 2002 concerning Pardons, Government Regulation No. 67 of 1948
concerning Pardons (PP concerning Pardons). Secondary legal sources refer to
materials that provide explanations about primary legal materials, such as
draft laws, research results, works by legal experts, legal opinions, or
others. The data collection techniques employed in this research are library
study and document analysis. The analysis used in this research employs a
qualitative analysis method, which involves interpreting the processed legal
materials. The use of interpretation in this research aims to interpret the
law, specifically identifying legal gaps, legal conflicts, and vague legal
norms within the primary legal material (Muhaimin, 2020).
RESULTS AND DISCUSSION
Etymologically, "Grasi" comes from the Dutch
word "gratie,"
which is defined as the reduction of punishment granted by the head of state to
a convicted person. (Sudarsono, 2012). Law Number 22 of 2002 provides the definition of
"grasi," which is a pardon in the form of alteration, mitigation,
reduction, or elimination of punishment given to a convict by the president
(Permatasari, n.d.). In a narrow sense, the term "grasi" refers to
an act of pardon involving alteration, mitigation, reduction, or elimination of
the execution of a sentence or punishment that has been decided by a judge
(Ecep Nurjamal, 2023).
According to Jimly Asshiddiqe, "grasi" is a
presidential authority of a judicial nature aimed at restoring justice related
to court decisions, which includes reducing sentences, granting pardons, or
eliminating punishments associated with judicial powers (Ashiddieqe, 2006).
Pardon is also regulated in the 1945 Constitution,
Article 14, paragraph (1), which states that the president is given the
authority to grant pardons and rehabilitation based on the consideration of the
Supreme Court. This authority is a special privilege for the head of state
because it must be handled by the judiciary. The provision of pardon is also
found in the Criminal Code (KUHP) Article 33a, which states: if a person
detained is later sentenced to prison or if someone else, with their consent,
applies for clemency, the period from the time the application is submitted
until there is a presidential decision is not counted as part of the sentence,
unless the president, considering the case circumstances, decides that the
entire or part of that time should be counted as time served for the sentence.
In addition to the Criminal Code, pardon is also
regulated in the Criminal Procedure Code (KUHAP) Article 196, paragraph (3),
which states: immediately after the verdict, the presiding judge must inform
the defendant of their rights, namely: accepting and rejecting the verdict,
studying the verdict, filing an appeal and a pardon application, and others.
Under Law Number 5 of 2010, the amendment of Law Number 22 of 2002 concerning
Pardons, the opportunity to receive a pardon from the President is limited; the
limitations are the length of the sentence and the death penalty. According to
the law, only convicts who can apply for a pardon are:
1. Death penalty.
2. Life imprisonment.
3.
Imprisonment for a
minimum of 2 years.
According to the researcher, convicts involved in
premeditated murder cases who submit a pardon request to the president can
mitigate the punishment handed down by the court. This mitigation can take the
form of leniency or changing the type of punishment, reducing the severity of
the punishment, or abolishing the execution of the sentence. This pardon
represents an acknowledgment from the convict, who admits to their actions
based on the established facts. The president will consider the pardon request
based on the acknowledgment and the considerations provided by the Supreme
Court, deciding whether to grant or deny the request.
Pardons serve as a legal avenue available to convicts
to lessen or alter the verdict given by the judge. The president's granting of
a pardon does not imply exoneration for the criminal act. Moreover, it does not
signify the erasure of the crimes committed; thus, the possibility of the
convict repeating similar offenses (recidivism) is taken into account when
making decisions in court. The president's approval of a pardon request, when
submitted, can serve as an opportunity for the criminal to rehabilitate themselves.
For convicts facing the death penalty, a pardon becomes a matter of life and
death. With a granted pardon, the death sentence can be commuted to life
imprisonment or a reduced prison term. In contrast, without a pardon request,
criminals have no chance to rehabilitate themselves from their past mistakes (Sari, 2020).
Article 14, paragraph (1) of the 1945 Constitution of
the Republic of Indonesia states that the granting of clemency is the
prerogative right of the president. Additionally, Article 35 of Law Number 14
of 1985 regarding the Supreme Court states: "The President, as the head of
state, receives advice from the Supreme Court in the granting or denial of
clemency." Based on this, the Supreme Court is obligated to provide
considerations to the President regarding the approval or denial of clemency
applications.
According to Satochid Kartanegara, the reasons that
can serve as the basis for granting clemency include (Kartanegara, 2001):
1.
To rectify the
consequences of the implementation of the law itself, which are considered
unfair in some aspects, for example, when the punishment imposed on an
individual would result in their family being left destitute, or
2.
When the convict is
suffering from a severe illness.
3.
For the benefit of
the State.
The nature of granting clemency is merely to correct
the punishment that has been imposed, not to correct the fundamental
considerations of the case. This nature is more evident in the three types of
decisions that the President can make regarding the granting of clemency:
a.
Cancelling the
implementation of the entire sentence imposed in the court's decision;
b.
Implementing only a
portion of the sentence imposed in the decision;
c.
Changing the type of
punishment (commutation) imposed in the decision to a lighter punishment,
either within the same type of basic punishment (for example, a life sentence
changed to 10 years of imprisonment) or a different type of basic punishment
(for example, changing a death sentence to 15 years of imprisonment).
If we consider the three types
of content in clemency decisions, the clemency that serves as the basis for the
revocation of the criminal execution is only the one mentioned in letter a.
However, clemency that falls under letter b and c does not eliminate the
state's right to enforce the punishment; it merely mitigates the execution of
the penalty. UTRECHT mentions four reasons for granting clemency, namely:
a.
Family interests of
the convict;
b.
The convict has
contributed to society;
c.
The convict suffers
from an incurable disease;
d.
The convict has
exhibited good behavior while in correctional facilities and shown remorse for
their actions.
The granting of clemency based on the opinion of J.E.
Sahetapy includes:
a.
If a convicted person
suddenly suffers from a severe, incurable illness;
b.
Judges are human and
may make mistakes or there might be developments that the judge did not
consider when convicting the defendant;
c.
Changes in the state
or social structure that create an urgent need for clemency, regardless of
cases of abolition and amnesty;
d.
When there is such
blatant injustice, for example, after a revolution or war.
Pompe argues that
there are certain circumstances that can be used as reasons for granting
clemency, namely:
1.
Deficiencies in the
legislation: In legal proceedings, these deficiencies might force a judge to
impose a specific punishment. If the judge were given greater flexibility, it
could lead to a person either being released or not being prosecuted, or being sentenced
to a lighter punishment.
2.
Factors not
considered by the judge: Sometimes, there are circumstances that the judge
didn't take into account when issuing a sentence, which could have been
considered to mitigate or eliminate the imposed punishment. Pompe provides
examples such as a convict being ill or unable to pay the penalty imposed by
the judge.
3.
Recently released
convicts: If a convict has just been released from prison, Pompe has stated
that Article 15 of the prevailing clemency decision in the Netherlands always
refers to this situation.
4.
Granting clemency
after completion of probation: This situation allows the convict to be
considered worthy of pardon, especially if they have successfully completed a
probation period.
5.
Clemency linked to
significant historical events: According to Pompe, clemency of this kind can
make convicts always remember the historical event associated with it. This
type of clemency can also assist the government in achieving its goals if it is
granted to individuals convicted of politically motivated crimes.
Based on the opinions of experts regarding the reasons
for granting clemency, the researcher concludes that clemency is granted to
convicts due to factors of justice and humanity, serving the interests of the
state, the convict's family, and rectifying the consequences of the
implementation of laws deemed unfair in certain aspects. In Indonesia,
according to Achmad Ali, serious crimes, including corruption, drug crimes,
terrorism, severe human rights violations, and premeditated murder, are subject
to specific and selective application of the death penalty. Only convicts
proven beyond reasonable doubt in court as perpetrators of these crimes are
sentenced to death. This provision is not in conflict with the constitution.
Chapter III of Law Number 22 of 2002 in conjunction
with Law Number 5 of 2010 concerning Clemency states the following procedures
for clemency applications:
1.
Article 5, paragraph
(1) states that the right to submit a clemency application is conveyed to the
convict by the judge or the chief judge who presides over the case at the first
level. Alternatively, Article 5, paragraph (2) specifies that if the convict is
absent, they will be notified in writing by the court clerk who decided the
case at the first level.
2.
Article 6 states that
a clemency application can be directly submitted by the convict, either through
legal representation or their family, with the convict's consent.
3.
Clemency applications
can be made by the family, with or without the criminal's approval, in the case
of a death penalty sentence.
4.
Article 7 declares
that the clemency application can be submitted immediately upon the issuance of
a legally binding court decision, and there is no specific time limit for
submission.
5.
Clemency applications
are submitted in writing through the first-level court that decided the case,
to be forwarded to the Supreme Court. The response from the President can be
received either through the head of the correctional institution where the convict
is serving their sentence, or directly through the first-level court where the
case was decided. Copies of the application are also sent to the first-level
court where the case was decided.
The time frame for
the President's decision on clemency applications from convicts is regulated in
Article I number (4) of the Republic of Indonesia Law Number 5 of 2010 concerning
Amendments to Law Number 22 of 2002 concerning Clemency. Article 10 states that
within a maximum period of 30 (thirty) days from the receipt of the copy of the
application and the case file as referred to in Article 9, the Supreme Court
shall send written considerations to the President.
The concept of public
interest is always closely associated with national interest. Connecting the
granting of clemency with the national interest is an effort by the state in
upholding the rule of law, protecting legal society, and respecting human rights
values. As a form of legal protection and enforcement of human rights, the
Government of the Republic of Indonesia, together with the People's
Consultative Assembly of the Republic of Indonesia, passed amendments to Law
Number 22 of 2002 concerning Clemency through a plenary session at the
Indonesian Parliament building on April 26, 2010, via Law Number 5 of 2010
concerning Amendments to Law Number 22 of 2002 concerning Clemency. These
amendments were based on issues arising from clemency applications and the
challenges faced in the clemency process.
According to Parialis
Akbar, there are several objectives behind these amendments. First, to ensure
legal certainty in processing clemency applications as mandated in Article 15
of Law Number 22 of 2002 concerning Clemency. Second, to enhance public trust
in the government's sincerity regarding clemency applications. Third, as one of
the government's efforts in respecting human rights values, and fourth, to
strengthen the enforcement of legal supremacy (Irawan & SH, 2016).
There are several new provisions introduced in the amendment of Law No.
22 of 2002. Firstly, the submission of clemency applications is clarified to be
allowed only once. This is intended to provide legal certainty in filing
clemency applications, avoid discrimination, reduce the burden in processing
clemency applications, and prevent the misuse of clemency requests. Secondly,
the right to submit clemency applications is granted to the Minister of Law and
Human Rights and the presiding judge of the first-instance court, as a
preventive measure in case death row convicts or their legal representatives do
not file for clemency. This is the state's effort to acknowledge the rights of
convicts, even those sentenced to death, in line with natural justice.
Thirdly, clemency applications can be submitted once
the verdict becomes legally binding and are not restricted by a specific time
frame, except for convicts sentenced to death. The deadline for submitting
clemency applications is one year from the date the court's decision becomes
legally binding.
There are several key points in the amendment to the clemency law. These
include the restriction of clemency applications to only one submission, to be
made no later than one year after the legally binding verdict, and an expedited
review process by the Supreme Court, reduced from three months to 30 days. In
this regard, the government is not merely passive but can actively request
eligible parties to file for clemency. The government aims for those filing
clemency requests to include underage individuals, the elderly, and those
suffering from permanent illnesses. These changes to Law No. 22 of 2002
regarding Clemency prioritize humanitarian considerations.
CONCLUSION
Clemency is a form of pardon involving
alteration, mitigation, reduction, or elimination of the execution of a
sentence given to a convict by the president. A convict in a premeditated
murder case who applies for clemency to the president can mitigate the
punishment imposed by the court, either through leniency or changing the type
of punishment, reducing the severity of the punishment, or abolishing the
execution of the sentence. This clemency represents an acknowledgment from the
convict, admitting to their actions based on the established facts. Based on
this acknowledgment, the president will consider the clemency application,
deciding whether to approve or reject it based on the considerations provided
by the Supreme Court. Clemency is a legal effort that convicts can make to
lighten or alter the verdict given by the judge.
The president's granting of clemency is
not a form of rectification for criminal offenders. Furthermore, clemency is
not a means to erase the mistakes committed or to challenge the law by the
convict. Hence, the possibility of the convict repeating the same offense
(recidivism) is taken into account when judges in court make decisions. The
president's approval of a clemency application, when submitted, can serve as an
opportunity for the criminal to rehabilitate themselves. For convicts facing
the death penalty, clemency becomes a matter of life and death. With clemency,
the death penalty can be commuted to life imprisonment or a reduced prison
term, altering the previous sentence or imposing a specific prison term.
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