To suppress the risk of a novel coronavirus disease (Covid-19) outbreak in prisons, the Indonesian government has decided to grant early release to 30,000 inmates.
While the public was still debating the merits of the decision, Minister of Law and Human Rights Yasonna Laoly quickly moved to announce plans to revise a 2012 regulation so that corruption convicts could be included among those granted early release.
Releasing inmates from overcrowded prisons has been recommended by the World Health Organisation (WHO) as a measure to combat the spread of coronavirus. It has already been taken up by several countries around the world – especially those where inmates are subject to unhealthy conditions such as cramped cells, poor ventilation, and inadequate nutrition, water, and sanitation. While these are sound reasons for the early release of general inmates, Yasonna’s plan to release corruptors is much harder to defend.
As the law stands, the government cannot grant early release to those convicted of what the Indonesian justice system considers “extra-ordinary crimes”, including terrorism, corruption, and narcotics offences.
Government Regulation No. 99 of 2012, passed under President Susilo Bambang Yudhoyono, states that these categories of inmates are not eligible for remissions or early release unless they satisfy several requirements. Terrorists, for example, must confess their wrongdoings, participate in a deradicalisation program, and pledge loyalty to the Indonesian state and its ideology, Pancasila. Meanwhile, corruptors and drug dealers must act as “justice collaborators”, that is, they must assist law enforcement agencies to bring other corruption or narcotics offenders to justice.
Yasonna proposed revising the 2012 regulation on humanitarian grounds. He claimed that regardless of their crimes and the damage they had caused to society, corruptors were also entitled to protection from Covid-19, and they should therefore be eligible for remissions and early release. He pointed out that most corruption convicts are old, and at greater risk of more serious illness if they contract coronavirus.
But the public accused the minister of using the pandemic as a cover to dispense favours to corruptors. Following a public backlash, both Coordinating Minister for Politics, Law and Security Mahfud MD and President Joko “Jokowi” Widodo said they did not support the plan, and confirmed that the government had no intention of revising the 2012 regulation to allow corruptors to be released.
This is not the first time Yasonna has tried to grant leniency to corruptors. In fact, he has made at least five attempts in his role as minister. As early as April 2015, just six months into his term, Yasonna submitted a plan to the president to revise the 2012 regulation. Following public complaints, which were particularly heated as they came on the back of conflict between the Corruption Eradication Commission (KPK) and the National Police, Jokowi rejected the plan.
In September 2016, Yasonna again proposed revising the 2012 regulation to lift restrictions on early release for corruptors. He claimed it was important to make sure corrections were fair and non-discriminatory in rehabilitating corruptors. This plan also failed to gain support. He tried, and failed, again in April 2017.
The 2012 regulation is not perfect. In fact, there are reasonable grounds for concern over some of its provisions. First, as noted, the regulation requires convicts obtain “justice collaborator” status before they are eligible for early release. But the Indonesian Criminal Procedure Code (KUHAP) contains no provision defining what one must do to be considered a justice collaborator. Law enforcement agencies can therefore exercise discretion in granting justice collaborator status, leaving the process open to rent-seeking.
Second, the 2012 regulation was designed in part to make early release harder for major drug dealers, but set the threshold too low: anyone sentenced to more than five years in prison is considered a major dealer. The 2009 Law on Narcotics has a mandatory minimum sentence of five years in prison for anyone caught in possession of “Category II” narcotics. This means most drug convicts, not just big-time dealers, are ineligible for parole or remissions (unless they obtain justice collaborator status), which has been a major contributor to overcrowding.
Therefore, there is a need to better define the status of a “justice collaborator”, possibly in the KUHAP, and to vastly increase the threshold for narcotics convicts so that only actual drug kingpins are prevented from accessing parole or remissions.
But rather than pursuing these solutions to the problems with the 2012 regulation, the ministry has instead made the argument that corruptors should be entitled to the same rights as other prisoners. This position seems particularly hard to defend given the repeated reports of corruptors bribing their way into luxurious cells and other special treatment in Indonesian prisons.
Concerns about leniency toward corruptors was one of the main sticking points for students and civil society when revisions to the 1995 Law on Corrections proposed by the national legislature (DPR) in September last year. There was an orchestrated attempt at that time by legislators to kill the 2012 regulation. In the final days of their term in office, legislators inserted a new article (Article 94) into the revised corrections bill, which stipulated that Government Regulation No. 32 of 1999 (which had been revoked when the 2012 regulation was passed) would be reinstated.
This was highly unusual. First, laws don’t usually determine which implementing regulation is the one that takes effect for the obvious reason that government regulations have shorter lifecycles than laws. Second, the bizarre intent of the revised corrections bill was that a cancelled regulation should take precedence over an existing one. However, third, it was not really clear whether reinstating the 1999 regulation would actually cancel the 2012 regulation, leaving the possibility that two conflicting regulations would be in force. In any case, there is little doubt corruptors and their allies would argue strongly for application of the looser 1999 regulation.
Facing the largest student and civil society protests since the fall of Soeharto, the DPR eventually postponed deliberations on the corrections bill, along with the controversial revisions to the Criminal Code (KUHP) and several other problematic bills.
Colleagues working as expert staff at the DPR have mentioned that the legislature may attempt to deliberate the bills on revising the KUHP and the 1995 Law on Corrections while energies are focused on combatting the coronavirus pandemic. The proponents of the bills are clearly hoping to avoid resistance from students and civil society, as protests cannot be held under strict social distancing restrictions now in place.
Without a strong online campaign from the public, this time, attempts to grant privileges to corruptors may finally succeed.
Instead of allowing the early release of corruptors, legislators should exercise their law-making powers to reduce overcrowding. After all, this is the primary cause of suffering for inmates in Indonesian prisoners, including (so they say) for the corruptors they want to help.