T

he Law and Human Rights Minister appears to be steadfast in his decision to enact a moratorium on remissions for those convicted of organized crimes including terrorism and corruption.

Such a policy can be deemed as a response to the growing public demand for justice after numerous convicted criminals, particularly graft convicts, had their sentences reduced in August.

At a glance, this policy sounds very populist. However, many pundits, especially lawyers, have criticized the government for the move. The main argument is that remissions are among convicts’ rights and thus, by virtue of that right, the state must fulfill it equally to all convicts regardless of any crimes they committed.

Under careful scrutiny, I would argue that the awarding of remissions as stipulated under Government Regulation No. 28/2006 has two dimensions: First, convicts have the right to remissions, and second, remissions can be granted at the state’s discretion.

The right to remissions is clearly expressed in the 1995 Correction Law. Nonetheless, as one will not find a right to remissions par excellence under any human rights laws, a question arises as to where such rights are derived.

In my opinion, one primary right that has a close nexus with remissions would be freedom of movement.

In a seminar on the issue of human rights-based national correction that was organized by the Human Rights Research and Development Agency in July, it was quite apparent that the (human rights) restriction upheld during the detention process in penitentiary facilities is solely imposed on one’s freedom to move.

To be more specific, as a civil right, the right to movement cannot escape a set of restriction rules recognized in human rights law, and arguably being sent to jail is a legitimate way to restrict that right.

In relation to this, however, the state must also bear in mind the application of the principle of proportionality in imposing such restrictions.

The Human Rights Committee for the International Covenant on Civil and Politic Rights mentions,
in a general comment for the freedom of movement, that “... the restrictions [to freedom of movement] serve permissible purposes; they must also be necessary to protect them.

Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected”.

Following such an interpretation, the state’s correctional duty should be carried out, among other things, in the least intrusive manner possible and be conducted under the spirit of aegis, as symbolized by the Law and Human Rights Ministry emblem Pengayoman (protection).

By applying the principle of proportionality in remissions, we thus move on to the next dimension of remission granting: that it is at the state’s discretion. Article 34 of Government Regulation No. 28/2006 stipulates that any convict shall enjoy the right to remission if she/he has done good deeds while inside the correctional facility.

Here we may find that remissions are not simply a right one can claim, but that it is also considered part of the state’s discretion to endow a sentence reduction to certain convicts due to, among other things, good behavior.

With these dimensions in mind, the next problematic question surrounds the legitimacy of the government’s recent policy to halt sentence reductions for organized crimes such as corruption and terrorism.

From a human rights perspective, to my knowledge, there are two legitimate grounds for the state to impose such a policy, namely public safety and public order.

Public safety in this context, as the Siracusa Principle delineates, shall cover “protection against danger to the safety of persons, to their life or physical integrity or serious damage to their property”.

From this standpoint, the public would certainly reckon that terrorism is an immense threat to their safety, and concur that any restrictions to perpetrators’ right to movement could be legally justified.

Furthermore, as corruption has an adverse impact on the proper functioning of our society, it could also be considered a threat to public order.

It is also undeniable that corruption has caused public services to be ineffective and inefficient throughout the history of this nation, and therefore public order ought to be seen as a legitimate justification for the moratorium on remissions imposed by the government, as a significant factor in the maintenance of a well-established public order.

With the above understanding, we could conclude several important points related to the issue of a moratorium on remissions.

First, remissions are a sui generis right and are closely related to other human rights, particularly freedom of movement.

Second, in granting remissions, the state has a discretionary authority to apply the principle of proportionality on restricting one’s freedom to move.

Third, that the moratorium on the granting of remissions for corruption and terrorist convicts is completely in line with human rights norms and should thus be deemed as a legitimate means to fight corruption and terrorism without obstructing any human rights principles.

The writer works at the Human Rights Research and Development Agency under the Law and Human Rights Ministry. The opinions expressed are his own.