Lessons from Nuril\'s Amnesty

KOMPAS/INGKI RINALDI

Usman Hamid

People are divided into two camps over the amnesty that was granted to Baiq Nuril Maknun. Senior jurists and legal experts mostly opposed amnesty for Nuril, while progressive young jurists mostly supported it.

The opposition to granting Nuril amnesty is based on at least three arguments. First, amnesty is given only to those who are being tried at court, and not to those who have been sentenced. Second, amnesty only applies to political case, whereas Nuril\'s case is not political. Third, amnesty cannot be given to individuals, but to (political) groups.

In addition to explaining amnesty and its global and domestic precedents, I would like to clarify that granting amnesty to Nuril is an appropriate constitutional decision and does not conflict with either domestic or international law.

Understanding and history

The term "amnesty" comes from the Greek amnestia, which means “forgetfulness” and was initially used in Ancient Greece in the case of the "Thirty Tyrants", in which the Athenian government absolved these oligarchs of the atrocities they committed.

Amnesty is also found in an ancient Egyptian inscription that refers to Pharaoh Ramses II freed his enemies of war of all punishment to secure peace. It is from this history that amnesty came to be applied during transitions of regimes from oppressive to non-oppressive, from war and armed conflict to peace.

In the theory and practice of international law, amnesty is given not just to those being tried, but also to those who have been convicted. A study on amnesty law and its role in promoting human rights explains that amnesty is the political privilege of government leaders as a judicial expression of a political decision issued by the chief executive and/or legislature to award immunity to an individual being prosecuted and to free individuals who are still fulfilling their punishment (Joinet 1985:3).

Amnesty is an expression of mercy from authorities in which the decision to solve a highly political legal problem is based on restorative justice, rather than through judicial punishment.

KOMPAS/HERU SRI KUMORO

Baiq Nuril

Can all crimes be forgiven? Indonesia has two distinct legal terms: amnesty for those who have been convicted and abolition for those who are undergoing criminal prosecution.

International human rights law and international humanitarian law prohibit granting amnesty in the most serious crimes of genocide, crimes against humanity, and war and aggression. Torture, extrajudicial executions, forced disappearances and rape also fall under this prohibition on amnesty according to international law (OHCHR 2009).

Amnesty for these crimes was banned through United Nations peace negotiations (UNSC 2004).

Political prisoners involved in serious crimes but who are unable to gain fair trial due to an authoritarian regime must be retried. So, amnesty is a political privilege of government that can be applied to minor crimes committed for political motives.

This kind of amnesty is a pragmatic application, so that those whose sentences are annulled can contribute to the peace process or reconciliation under the new government.

Amnesty also needs to be considered in the case of persons who were convicted through political engineering, unfair trial and torture. This kind of amnesty is a pragmatic application, so that those whose sentences are annulled can contribute to the peace process or reconciliation under the new government.

Theory and practice in Indonesia

In theory and practice, amnesty is implemented in Indonesia not very differently from the rest of the world. According to Article 14, Paragraph (2) of the 1945 Constitution, "The President has the authority to grant amnesty and abolition with due regard to the consideration of the DPR."

Almost all Indonesian presidents have granted amnesty, from Soekarno to Suharto and from B.J. Habibie to Abdurrahman Wahid and to Susilo Bambang Yudhoyono (SBY). Amnesty was applied to political cases in keeping with the Emergency Law of 1954 on Amnesty and Abolition.

Soekarno granted amnesty and abolition to all those who had committed real crimes before 27 December 1949 due to the political dispute between the Republic of Indonesia and the Kingdom of the Netherlands.

Both amnesty and abolition have the effect of removing grantees of all legal liabilities. The difference is that amnesty is granted to annul sentences (convictions), and abolition throws out the legal prosecution (of a suspect/defendant).

Soekarno granted amnesty and abolition on 11 Sept. 1959 through Keppres No. 303/1959 to those involved in the DI-TII rebellion of Kahar Muzakkar in South Sulawesi.

Soekarno granted amnesty on 17 Aug. 1959 for those convicted in connection with the rebellions in Aceh, Sumatra, Sulawesi, Maluku, Papua and West Java through Presidential Decree (Keppres) No. 180/1959 on Granting Amnesty and Abolition, to "the people involved in the David Bereueh rebellion in Aceh". The amnesty absolved the accused of all legal consequences.

Abolition annuls the legal prosecution of the accused. Soekarno granted amnesty and abolition on 11 Sept. 1959 through Keppres No. 303/1959 to those involved in the DI-TII rebellion of Kahar Muzakar in South Sulawesi.

The second dictum reads: "In granting amnesty, all legal consequences of the criminal procedures against the intended [grantees] ... are abolished", and even "in granting abolition, the [legal] prosecution of those intended [grantees] ... is abolished".

Soekarno then issued Keppres No. 449/1961 on Granting Amnesty and Abolition for people who were involved in wider rebellions, including "the Revolutionary Government of the Republic of Indonesia", as well as "the Perjuangan Semesta" in North Sumatra, West Sumatra, Riau, South Sumatra, Jambi, North Sulawesi, South Sulawesi, Maluku, West Irian and other regions, which included the Kahar Muzakar rebellion in South Sulawesi, the Kartosuwirjo rebellion in West and Central Java, the Ibn Hadjar rebellion in South Kalimantan and the "Republic of South Maluku" in Maluku.

At the discretion of the 17th session of the Supreme War Council on July 28, 1961, the President granted amnesty and abolition on 17 Aug. 1961 through Keppres No. 449/1961 to the people involved in these rebellions, who were to then report and pledge loyalty to the Republic of Indonesia "not later than 5 Oct. 1961”.

In 1977, Suharto granted general amnesty and abolition to followers of the Fretilin movement in East Timor, who were then mandated to contribute to development. Habibie granted amnesty and abolition to a number of people convicted for a variety of charges.

During the transition from the authoritarian regime to a democratic government, Habibie granted "amnesty and/or abolition" through Keppres No. 80/1998 to Sri Bintang Pamungkas and Muchtar Pakpahan. He also granted amnesty to East Timorese, Acehnese and Papuan political prisoners through Keppres No. 123/1998.

Amnesty continued to be granted through the era of President Abdurrahman Wahid, including amnesty for pro-democracy activist Budiman Sudjatmiko on 10 Dec. 1999, International Human Rights Day. Keppres Nos. 157-160/1999 was issued to grant amnesty to 91 political prisoners comprising East Timorese activists, those convicted of major events like the 1965 tragedy, Islamic activists and others.

On 30 Aug. 2005, SBY granted general amnesty and abolition to all members of the Free Aceh Movement (GAM) through Keppres No. 22/2005. Under the peace agreement between the Indonesian government and GAM, "prisoners and political prisoners detained in the conflict will be released unconditionally, as soon as possible and no later than 15 days after the signing of the memorandum of understanding [...]".

Amnesty for Nuril

A question arises from the historical application of amnesty as to whether amnesty applies only in political cases. At first glance, the answer is “yes”. However, if we examine this further, history points to the fact that amnesty can be granted to convicts for a variety of objectives, from resolving regional rebellions to ensuring participation in development, from freeing the opposition and to peace.

With these diverse objectives, we can look at Nuril\'s case more equitably. Nuril is a woman who was a victim of sexual harassment by her superior.

According to the annual monitoring of the National Commission on Violence Against Women (Komnas Perempuan) and scholarly research, sexual abuse and harassment continue to occur at schools and in the workplace. Worse, these cases were neither managed properly nor adequately.

This condition is due to structural inequality between men and women. In terms of employment, women often face discrimination in being hired as mere temporary workers, even though they have been working for many years.

This is illustrated in Nuril\'s position as a temporary employee on the administration of a senior high school, in a relationship of unequal power with the perpetrator, H.M., the school principal and Nuril’s immediate superior who reported her for criminal misconduct.

If this gender inequality is allowed in political structures, then it paints a picture of human rights violations, especially against women. This clearly contradicts Indonesia’s national policy, which ratified the Convention on the Elimination of All Forms of Discrimination against Women in 1984.

With this description, Nuril’s case is clearly a political issue.

From the practices of a number of countries, including Indonesia, the amnesty approach can be used to overcome the problems of marginalized, excluded and vulnerable groups by building equitable social and political structures. With this description, Nuril’s case is clearly a political issue.

In addition, amnesty is the most appropriate way under both international and national laws to absolve Nuril of all criminal punishment. As the DPR has supported President Jokowi\'s plan to grant amnesty to Nuril, this will be the first amnesty granted by the Jokowi administration.

Going forward, this precedent could be strong social capital and be applied in political jurisprudence to review other matters when female victims of sexual abuse and harassment are instead criminalized rather than protected.

Usman Hamid, Lecturer, Indonesian Law College Jentera; Director, Amnesty International Indonesia