Thesis Advisor Recommendation Letter

THESIS ADVISOR RECOMMENDATION LETTER

This thesis entitled “JURIDICAL ANALYSIS TOWARD PAROLE

RELEASE FOR GRAFT INMATES (Case Study: Ministerial Decree of Law and Human Right of the Republic of Indonesia Number M.HH-

26.PK.01.05.06 Year 2014 on behalf of Siti Hartati Murdaya)” prepared and submitted by Dinia Nurfatiha in partial fulfilmment of requirements for the degree of Bachelor of Law in the Faculty of Humanities has been reviewed and found to have satisifed the requirements for a thesis fit to be examined. I therefore recommend this thesis for Oral Defense.

Cikarang, Indonesia, January 15th, 2015

Yance Arizona, S.H., M.H

Advisor

DECLARATION OF ORIGINALITY

I declare that his thesis, entitled “JURIDICAL ANALYSIS TOWARD

PAROLE RELEASE FOR GRAFT INMATES (Case Study: Ministerial

Decree of Law and Human Right of the Republic of Indonesia Number

M.HH-26.PK.01.05.06 Year 2014 on behalf of Siti Hartati Murdaya)” is, to the best of my knowledge and belief, an original piece of work that has not been submitted, either in whole or in part, to another university to obtain a degree.

Cikarang, Indonesia, January 15th, 2015

Dinia Nurfatiha

PANEL OF EXAMINERS APPROVAL SHEET

The panel of Examiners declares that the thesis entitled “JURIDICAL

ANALYSIS TOWARD PAROLE RELEASE FOR GRAFT INMATES (Case

Study: Ministerial Decree of Law and Human Right of the Republic of

Indonesia Number M.HH-26.PK.01.05.06 Year 2014 on behalf of Siti Hartati

Murdaya)” that was submitted by Dinia Nurfatiha majoring in Law from the

Faculty of Humanities was assessed and approved to have passed the Oral

Examination on Cikarang, Indonesia, February 2nd 2015

M. Mahayoni, S.H., M.H

Chair Panel of Examiners

Yance Arizona, S.H., M.H

Thesis Adisor / Examiner I

Zenny Rezania Dewantary, S.H., M.Hum

Examiner II

iii

Abstract

Parole is a development process outside the Correctional Institutions.

Genuineley, it is a right of inmates, including a graft inmates which is a form of extraordinary crime. By using normative-juridical research methods in form of library research that examined literatures, regulations, and interview. This research amis to answer these problems: Does the decision of the Minister of

Justice and Human Rights of the Republic of Indonesia Number: M.HH-

26.PK.01.05.06 2014 on granting Parole to Siti Hartati Murdaya are in accordance with the procedures of granting parole as defined in Regulation No. 99/2012 and whether the parole given has fulfilled the terms of substantive and administrative requirements in the Regulation of the Minister of Justice and Human Rights

M.01.PK.04-10 year 2007? Is the decision to grant Parole on Hartati Murdaya considered appropriate in terms of the objective of punishment? By analyzing The

Ministerial Decree of Law and Human Right of the Republic of Indonesia

Number M.HH-26.PK.01.05.06 Year 2014 on behalf of Siti Hartati Murdaya, the parole decision was conducted in accordance with the substantive and administrative requirement of Ministerial Regulation No. M.01.PK.04-10 of 2007 and Government Regulation No. 99 of 2012. The decision of granting parole by the view of integrative objective of punishment is already appropriate in terms of the interest of offender but it does not accomodate public's sense of justice.

(Key concepts: Parole, Corruption, Objectives of Punishment)

ABSTRAK

Pembebasan bersyarat adalah proses pembinaan di luar lembaga pemasyarakatan dan sejatinya merupakan hak narapidana, tidak terkecuali pula diterapkan kepada narapidana tindak pidana korupsi yang merupakan kejahatan luar biasa. Dengan menggunakan metode penelitian yuridis normatif berupa studi kepustakaan yaitu meneliti dokumen berupa literatur buku-buku, peraturan- peraturan,, dan wawancara dengan narasumber Penelitian ini bertujuan untuk menjawab permasalahan: Apakah keputusan pemberian pembebasan bersyarat atas nama Siti Hartati Murdaya (Keputusan Menteri Hukum dan Hak Asasi

Manusia Republik Indonesia Nomor: M.HH-26.PK.01.05.06 Tahun 2014) telah sesuai dengan tata cara pelaksanaan hak warga binaan dalam PP No. 99/2012 dan memenuhi syarat-syarat substantif dan administratif dalam Permenkumham No.

M.01.PK.04-10 year 2007? Apakah keputusan pemberian pembebasan bersyarat

Hartati Murdaya telah sesuai dengan tujuan pemidanaan? Keputusan Menteri

Hukum dan Hak Asasi Manusia Republik Indonesia Nomor: M.HH-

26.PK.01.05.06 Tahun 2014 telah lengkap sesuai dengan Peraturan Pemerintah

Nomor 99 Tahun 2012 tentang Syarat dan Tata Cara Pelaksanaan Hak Warga

Binaan Pemasyarakatan dan memenuhi syarat-syarat substantif dan administratif dalam Peraturan Menteri Hukum dan Ham No. M.01.PK.04-10 year 2007.

Keputusan Pemberian Pembebasan Bersyarat telah sesuai bagi Siti Hartati

Murdaya apabila ditinjau dari tujuan pemidanaan yang bersifat integratif namun di sisi masyarakat, keputusan tersebut kurang sesuai karena mencederai rasa keadilan.

ACKNOWLEDGEMENT

Bismillahirrahmanirrahim, Alhamdulillahirrabilalamin, First of all I would like to take this opportunity to express my highest gratitude to Allah SWT the

Almighty for having made everything possible by giving me strength and courage as well as granted countless blessing to me during the whole process to finish this thesis.

Foremost, I would like to thank my advisor, Yance Arizona, S.H., M.H. , for his insightful comments, encouragement, and his impeccable guidance that has led to this work. His efforts at explaining problems clearly and simply have mad it possible for me to learn and understand this subject.

I would like to extend my deepest thanks to Maria Francisca M, S.H., S.E.,

M.Kn. and all of my lectures in Law Study program President University for giving me the opprotunity to learn and acquired knowledge throughout my study.

Thanks in advance also for Maya Nursita for helping me making all of those research letter of permission.

Friendships have provided the most cherished memories during my study and will hopefully last a long time to come. Thanks to Devi, Firdha, Herti, Firstly,

Miranti, Virta, and mbak Shania for all the laughs and constantly supporting me through my endeavors. I couldn't have done it without them. My highschool sweethearts, Talitha, Runny, Chaiyna, Icha, and Suci, thanks for their listening ears in most of my joys and struggles. Putri, though you are very snobish I will remembery our very useful conversations and great jokes that we shared. Thanks for your support during my work pressure and the prayers. Thanks for Naufal for

vi just the right amount of supplemental encouragement and his constant prayer. You guys are my whole support systems. I look forward to crossing paths with you all in the years to come.

Last but certainly not least, I convey my deepest gratitude to my loving and warm-hearted big family. Nyai, cing Enci, cing Afaf, Ami Tatang and the rest of my aunties and uncles. I am very grateful for my dad, Kiki, and Anca. Thank you for always encouraging me and helping me strive to do my best. Mom, I could not have gotten to this point without your unconditional love, prayers, supports, and constant driving force to help me suceeded. This thesis dedicated for her.

vii

Table of Contents THESIS ADVISOR RECOMMENDATION LETTER ...... i DECLARATION OF ORIGINALITY ...... ii PANEL OF EXAMINERS APPROVAL SHEET ...... iii Abstract ...... iv ACKNOWLEDGEMENT ...... vi 1. INTRODUCTION ...... 3 1.1 Background ...... 3 1.2 Identifications of Problem ...... 8 1.3 Research Objective ...... 9 1.4 Conceptual Framework ...... 10 1.4.1 Criminal Act of Corruption ...... 10 1.4.2 Conditional Release (Parole) ...... 12 1.4.3 Purpose of Punishment ...... 13 1.5 Methods of Research ...... 15 1.6 Data Collection Methods ...... 17 1.7 Data Analysis ...... 17 1.8 Systematic of Writing ...... 17 2. LITERATURE REVIEW ...... 20 2.1 Rights of an Inmate ...... 20 2.2 Definition of Parole ...... 20 2.1.1 The History of Parole ...... 21 2.1.2 Objectives and Functions of Parole ...... 25 2.1.3 Legal Grounds of Parole ...... 28 2.1.4 Requirements on Parole ...... 31 2.1.5 Procedures for Granting parole for Graft Inmates ...... 35 2.1.6 The authority on Granting Parole ...... 37 2.2 Criminal Act of Corruption ...... 37 2.3 Purpose of Punishment ...... 42 3. CASE PRFOILE : PAROLE RELEASED OF HARTATI MURDAYA ...... 49 4. ANALYTICAL CHAPTER ...... 57

4.1 Ministerial Decree of Law and Human Right of the Republic of Indonesia Number M.HH-26.PK.01.05.06 Year 2014 ...... 57 4.2 Completeness upon paole’s euieet of Hartati Murdaya as Graft Inmate 60 4.2.1 Substantive Requirements ...... 60 4.2.2 Administrative requirements ...... 64 4.3 Parole released of Hartati Murdaya from the objective of punishment ...... 70 4.3.1 The integrative objective of punishment ...... 70 4.3.2 Hartati Murdaya's parole released and its relevance to the integrative objective of punishment ...... 74 4.2.3 Parole limitation alternative for graft inmates ...... 86 5. CONCLUDING CHAPTER ...... 88 5.1 Conclusion ...... 88 5.2 Suggestions ...... 89 REFFERENCES ...... xci APPENDIX ...... xciv

1. INTRODUCTION

1.1 Background

Corruption has long been a phenomenon of deviance in our social life which undermined and destroyed the life and the order of nation. This view was reinforced by a survey conducted by a Bureau of Political and Economic Risk

Consultancy which put Indonesia as the most corrupt countries. According to a survey conducted in 2011, Indonesia ranked the top position out of 16 countries in the Asia Pacific region as the most corrupt country with a score of 9.07 out of 101.

Those high recapitulated scores never ceased the ideas to combat corruption from our government's agenda, especially because corruption in Indonesia occurred in the deep-rooted, systemic and widespread, not merely existing on the surface or passing as a transitional phenomenon that it pervaded the life line in depth.

However, the score of Indonesian Corruption Perception Index (CPI) throughout the year does not increase significantly. In the latest 2014 annual list of CPI, which assesses the degree to which corruption is perceived to exist among public officials and politicians in all countries around the world, Indonesia occupied the 107th place out of a total of 175 countries2.

Comprehensive studies on the impact of corruption proves that corruption does not affecting only one aspect of life, but it cause a domino effect that extends to the very existence of the nation. The impact of corruption on a country is very

1 Indonesia most corrupt of key Asian nations PERC, accessed via http://in.reuters.com/article/2010/03/08/idINIndia-46740620100308, on 24 September 2014 12:12 WIB 2 Indonesia Investments, Corruption in Indonesia, accessed via http://www.indonesiainvestments.com/business/risks/corruption/item235, on 24 September 2014, 13:24 WIB

3 serious and complex because not only it destroys the economy as a key driver of prosperity but it also resulting the collapse of government authority, a loss of public trust in democracy, and even environmental degradation caused by the large-scale exploitation solely for benefit.

In its practice of law enforcement, eradication of corruption often deal with obstacles and barriers that lead to liberation or releasment of the offender.

For example, the provisions in the Eradication of the Criminal Act of Corruption often times crack open the possibility of another interpretation, so that it tends to give benefit to the corruptors. Another inhibiting factor is the morality of

Indonesian law enforcement's apparatus, who have freedom of judicial power

(independent judiciary).

That kind of power is difficult to control by the others, so the potential for manipulation is unavoidable. Political considerations also become an inevitable factor in combating corruption. An assumption appears, that law enforcement in regards of eradication of corruption will inevitably enter the two areas that are difficult to reconcile, namely the area of law and politics3.

In the political realm, the eradication of corruption is not only concerning the political will of the government, but also involves other considerations relating to the risks arising against a prosecution4. Such repressive measures against a corrupt businessmen, as instance, should also consider the number of worker who will be affected by the prosecution against the employer. In such circumstances,

3 Adul Fia Hadja, Kedala da Tataga Apaat Peegak Huku Dala Koteks Pemberantasan Korupsi, Feuay 2004, aessed via http://www.reformasihukum.org/ID/file/anggota/KENDALA%20DAN%20TANTANGAN%20APARA T%20PENEGAK%20HUKUM.pdf on 10 October 2014 07:28 WIB 4 Ibid, pg 7

4 law enforcement upon eradication of corruption also becomes a political problem, not just a legal problem alone.

Those loopholes inevitably lead the criminals to escape the law or at least make the threat of severe punishment to the perpetrators of corruption amputated and definitely, it affronted people sense of justice that someone who appeared to do corruption could be swiftly released. As happened lately, parole became one of the corridors for corruptors to escape from punishment. Based on tracking data given by Indonesia Corruption Watch (ICW), there are at least 38 (thirty eight) corruptor who had been given parole during the 2004-2014 reign of Susilo

Bambang Yudhyono5.

In August 2010, four former Deputy Governor of Bank Indonesia (BI), which are Aulia Pohan, Maman H. Somantri, Bunbunan Hutapea and Aslim

Tadjuddin were released from Salemba's correctional institution (LP) after the

Ministry of Justice and Human Rights granted their parole 6 . All four were convicted of corruption by the Indonesian Court for Corruption Crimes in June

2009. Previously, Aulia Pohan which is also a relative of President Susilo

Bambang Yudhoyono, and Maman Somantri each sentenced to 4.5 (four and a half) years in prison. While Bunbunan Hutapea and Aslim Tadjudin got 4 (four) years sentenced each. On appeal, the Supreme Court grant their appeal and

5 Nuriman Jayabuana, ICW: 38 Koruptor Bebas Bersyarat pada Era SBY, accessed via http://www.tempo.co/read/news/2014/09/08/063605135/ICW-38-Koruptor-Bebas-Bersyarat- pada-Era-SBY on 24 September 13:52 WIB 6 FAT, Aulia Pohan dkk Bebas Bersyarat, accessed via http://www.hukumonline.com/berita/baca/lt4c6e71cd65dbc/aulia-pohan-dkk-bebas-bersyarat on 24 September 15:01 WIB

5 reduced the sentence of those former central bank officials to three years in prison.

In other cases, Paskah Suzetta, members of the House of Representatives during the 1999-2004 detained in January 2011 with the verdict of one year and six months in prison for receiving 12 (twelve) copies of checks worth Rp

600.000.000 (six hundred million) was also granted parole since October 29 2011 despite the fact that the former Minister of Justice and Human Rights, Amir

Syamsuddin at that time had spark a moratorium (temporary delay) on granting remission and parole to criminals since October 19, 2011. He asserted that the moratorium was a government policy. He also said that he had never given permission for parole for graft inmates during his tenure 7 . However, Suzetta eventually get his parole status because he already had the letter of decision of parole from the Director General of Corrections on behalf of the minister, that

Suzetta already met the requirements of both administrative and substantively paroled.

Recently, the debate on parole granted to graft inmates has been resurfaced after Hartati Murdaya received her parole based on Ministerial Decree from the

Law and Human Rights Ministry No. M.HH-26.PK.01.05.06 Year 2014. Hartati

Murdaya, who is a former of Democratic Party officials previously detained since she has been proven guilty of bribing former Regent of Buol, Amran Batalipu upon issuing a permit for Land Cultivation Rights Title (HGU) and she was sentenced to two years and eight months in prison. She was also ordered to pay

7 Taufik Hidayat, Menkum HAM: Tidak Ada Bebas Bersyarat untuk Paskah accessed via http://news.okezone.com/read/2011/10/31/339/522734/menkum-ham-tidak-ada-bebas- bersyarat-untuk-paskah , on 24 September 15:12 WIB

Rp 150.000.000 (one hundred and fifty million) with subsidiary imprisonment for

3 (three) months in prison.

As a legal instrument, the grant of parole should be given in a proper administration through a rigorous mechanism. Granting parole, who seemed to be swiftly given to the graft inmates, which some people note as extraordinary crime needs to be further examined. The decision to grant parole to Hartati Murdaya considered contrary to the spirit of the government in the framework of running a clean and dignified country. Not only failed to fulfill the public's need for justice, it was also detrimental to Government reputation which was considered generous to the corruptors. The existence of this parole can also reduce the deterrent effect of the criminals as the perpetrators of corruption8.

Genuinely, parole is one of the basic rights of every inmates, and it has been widely known in almost all of the criminal justice system. The legal system in the United Kingdom and the United States call this conditional release of prisoner as parole while Dutch come with the term of vervroegde invrijheidstelling.9 The commonly used terms in Indonesian legislation is vary.

Most of them using the term of "Pembebasan Bersyarat", except for Law on the

Republic of Indonesia Public Prosecution service that call the conditional release as "Lepas Bersyarat".

8Emerson Yuntho, Koordinator Divisi Monitoring Hukum dan Peradilan, Sindo News Release, accessed via http://nasional.sindonews.com/read/896958/13/icw-protes-pembebasan- bersyarat-hartati-murdaya on 24 September, 17:13 WIB 9 Pembebasan Bersyarat, Peluang Napi yang Sarat Arti, accessed via http://www.hukumonline.com/berita/baca/hol17359/pembebasan-bersyarat-peluang-napi- yang-sarat-arti on 24 September, 17:13 WIB

With the existence of Parole, an inmate can be released from his obligation, with the early discharge of his sentence. However, an inmate is not necessarily able to get Parole. There are requirements that must be met as regulated in Article 6 of the Regulation of the Minister of Justice and Human

Rights of 01/2007, namely the Substantive Requirements and Administrative

Requirements.

Furthermore, the inmate who is going to get a Parole must comply with the

Government Regulation No 32 of 1999 on Requirements and Procedure to

Implement the Rights of Prisoners as amended by Government Regulation No. 28 of 2006 and Government Regulation No. 99 of 2012. Into the aforementioned, one of the requirements for the graft inmates to get Parole is the willingness to cooperate with law enforcement to help dismantle the criminal case, or better known as the Justice Collaborator.

Moreover, Article 43A (3) clearly states "Willingness to cooperate as referred to in paragraph (1) letter a, shall be stated in writing by the law enforcement agencies in accordance with the provisions of the legislation." In considerations of Parole, the Director General of Penitentiaries also required to ask for a recommendation from the relevant authorities, which are the Indonesian

National Police, the Attorney General, and / or the Corruption Eradication

Commission (KPK). In this case, KPK stated that Hartati Murdaya is not willing to cooperate to dismantle her corruption case and therefore they did not give recommendations regarding to her parole application. Based on the above background, the author is interested to do a research about Parole granted to graft inmate, Hartati Murdaya.

1.2 Identifications of Problem

Based on the above background, the problems can be formulated as follows:

1. Does the decision of the Minister of Justice and Human Rights of the

Republic of Indonesia Number: M.HH-26.PK.01.05.06 2014 on granting

Parole to Siti Hartati Murdaya are in accordance with the procedures of

granting parole as defined in Regulation No. 99/2012 and whether the

parole given has fulfilled the terms of substantive and administrative

requirements in the Regulation of the Minister of Justice and Human

Rights M.01.PK.04-10 year 2007?

2. Is the decision to grant Parole on Hartati Murdaya considered appropriate

in terms of the objective of punishment?

1.3 Research Objective

This research aims to resolve the problems as follows:

1. To determine the suitability of Parole obtained by Hartati Murdaya within

the framework of Government Regulation No. 99/2012 and to review

parole obtained by her through substantive and administrative

requirements that are outlined in the Regulation of the Minister of Law

and Human Rights No. M.01.PK.04-10 of 2007 (Permen 01/2007).

2. To determine whether the Parole of Hartati Murdaya that obtained through

the Decision of the Minister of Law and Human Rights number M.HH-

26.PK.01.05.06 is appropriate with the central aim of punishment.

The benefits of this research are expected to provide input to the various parties, as follows:

1. This research is expected to add reference and insight to the author in

regards to the grant of Parole.

2. This research is expected to lure people to become more actively involved

in the grant of parole supervision provided to the inmates, especially the

graft inmates. It is also expected to provide input to the government to

improve the legal loopholes that may arise in the context of granting

parole.

1.4 Conceptual Framework

1.4.1 Criminal Act of Corruption

There is actually no single, comprehensive, universally accepted definition of corruption. Corruption is derived from the Latin word corruptio (meaning moral decay, wicked behaviour, putridity or rottenness) or Corruptus.10 This term of Corruption is also used by English and French, while Dutch use the term of

Korruptie. In Law No. 31 of 1999 on the Eradication of Criminal Acts of

Corruption, Corruption distinguished in 7 (Seven) major groups and 30 (thirty) types of delik. In general, Mahzar insists corruption as the form of a variety of illegal and unauthorized actions (illicit or illegal activities) to gain personal advantage or group. Moreover, he adds that in more recent development of the various definitions of corruption, there is an emphasis made by a number of

10 Andi Hamzah, Korupsi Dalam Pengelolaan Proyek, Jakarta: Akademik Pressindo, 1991, pg 7

10 experts in defining corruption which is an abuse of power or public position for personal gain11.

Corruption occurs when three things are met, namely: (1) a person has the power to determine policy including public and administering the policy, (2) the existence of economic rents, namely the economic benefits as a result of public policy, and (3) system that open a possibility to do infringements by the concerned public officials. Mahzar cites the most frequently used several definitions of corruption as follows12:

(1) Public Office-centered Corruption

This kind of corruption defined as the deviant behavior and actions of

public officials, whom unlawfully enrich themselves and/or those close to

them by misusing the position in which they are placed. This

understanding also includes collusion and nepotism provision of patronage

more for ascriptive reasons.

(2) Public interest-centered corruption

In this framework, corruption can be said to have occurred, if a holder of

the position of power or public functionaries who perform certain actions

of those who would give rewards (money or other material), and thus

damaging the position as well as the public interest.

(3) Market-centered corruption

11Asyumardi Mahzar, Pemberantasan Korupsi Menuju Tata Pemerintahan yang Lebih Baik; Makalah Seminar Internasional, Praktik-praktik yang Baik Dalam Memerangi Korupsi di Asia Jakarta: Transparency International Indonesia: 2003, pg 10 12Ibid, pg 23.

This one is classified based on an analysis of corruption which uses public

theory and social, and economic approach within the framework of

political analysis.

To this extent, corruption can also mean an abuse of power by a government employee or official to earn extra income from the public13.

1.4.2 Conditional Release (Parole)

“Parole is the act of releasing or the status of being released from a penal or reformatory institution in which one has served a part of his maximum sentence, on condition of maintaining good behaviour and remaining in the custody and under the guidance of the institution or some other agency approved by the state until a final discharge is granted.”14

The author interpret this definition as an act of early discharge from the penitentiary to an inmate after undergoing most of its maximum sentence, with the condition of well-behaved and under the guidance of an institutions approved by the State until his true expiration. In criminal philosophy, Parole is part of the general nineteenth-century trend in criminology that progressed from punishment to reformation. At that time, some people criticized the punishment system, when

13Ibid, pg 23-24 14Michael D. Maltz, Recidivism, Chicago: Department of Criminal Justice and Department of Information and Decision Sciences University of Illonois, 2001 pg 42

12 prison sentences carried no element of positive conditioning and switch to develop a system of rewards for well-behaved inmates15.

In Indonesia, parole is derived from the Dutch translation "Voorwaardelijk invrijheidstelling". Utrech, Schravendijk, dan R. Soesilo use the term of "release with an agreement" to the Dutch translation. It is also known as "woorwaardlijk straf" but it is commonly used with Parole than any other terms. Parole is closely linked to reklasering16 (returns in society) of an inmate. This reklasering effort is one of the crucial factor in terms of whether or not the main objection of parole, which is a way to respect basic human rights, would be achieved.

Parole generally obtained through a series of stages which involves multiple actors responsible in each process at each stage, for example to examine the eligibility of an inmate for parole and undergoing a supervision through the offender17. In Indonesia, the parties involved in the granting of parole include correctional observer team (TPP) who will provide advice, assessment, and consideration of parole.

1.4.3 Purpose of Punishment

Basically, the aspect of punishment is the culmination of the Criminal

Justice System, which is the imposement of the judge's verdict. From this concept, the purpose of punishment is to protect society as well as the offender. Barda

Nawawi Arief asserts that the purpose of punishment policy is the protection of

15 Joan Petersilia, PH.D, Parole and Prison Reentry in the United States, accessed via http://www.appa-net.org/eweb/Resources/PPPSW_2013/docs/su00appa32.pdf, on 11 October 2014, 09:51 WIB 16Masfar Ismail, Pembebasan Bersyarat di Indonesia , Jakarta:Djembatan, 1968, pg 14 17Michael D. Maltz, Recidivism, Chicago: Department of Criminal Justice and Department of Information and Decision Sciences University of Illinois, 2001, pg 43

13 society to achieve security and tranquility. There are several purpose to be achieved by punishment, namely18:

a. Restoration of order

b. Prevention of intent to commit a criminal act (general preventief)

c. Personal improvement of convict

d. Giving moral satisfaction to the public in accordance with sense of

justice

e. Provide security for the people

Herbert L. Packer once said that one of the purposes of punishment for criminals is to prevent or reduce the actors who have the intention to commit a crime.

According to Muladi, this kind of prevention has a double impact, namely general and individual. These aims to set an example to other and to prevent them from criminal tendencies, and in either case the preventive effect may be considered due to an appeal to fear, an interest in not being exposed to the pain of punishment and deprivation of benefits resulting therefrom and discouraging people in general from criminal action, so it considered to be deemed to have the power to educate and remedy. The general preventive means that criminal punishment carried out by the court meant that others prevented from committing crimes19.

Furthermore, Packer stated that there are two conceptual views. Each of them have different implications one another, namely retributive view and utilitarian view. The retributive view sees punishment as a means of negative reward for deviant behaviour committed by members of the community so that

18 Muladi, Barda Nawawi, Teori-teori dan kebijakan pidana, Bandung: Alumni, 1984, pg 19 19 Muladi, Lembaga Pidana Bersyarat, Bandung:Alumni, 1985, pg 81-83

14 this view sees the punishment only as a retaliation against the mistakes based on moral responsibility of each. The retributive view is essentially backward-looking.

It regards the offense committed by the criminal as crucial, and adjusts the punishment to it. In contrast, the utilitarian view sees punishment in terms of benefits, which emphasizes on situations or circumstances that resulted in the imposition of criminal. On the other hand, punishment is intended to improve the attitudes or behaviour of the inmate and on the other side, it was also intended to prevent other from making similar possibilities. The utilitarian view is forward- looking, and also has a nature of deterrence20.

1.5 Methods of Research

Peter Mahmud Marzuki formulate legal research as a process of finding the rule of law, the legal principles, and the legal doctrines in order to identify and answer the legal issues that we faced by.21 While Soerjono Soekanto asserted that a research is an attempt to analyze and conducting construction methodologically, systematic, and consistent22. A research is the tool used to strengthen, support, and develop the knowledge. A research method is a research instrument to answer the research question. Based on this research issue about Parole, the research method applied in this thesis is normative juridical research, namely legal research based on examining the primary legal materials by means of reviewing the theories, concepts, principles of law and legislation related to this research23.

20 Herbert L. Packer, The Limits of the Criminal Sanction, California: Stanford University Press, 1968, pg 9 21Peter Mahmud Marzuki, Penelitian Hukum, Jakarta: Kencana, 2008, pg 15 22 Soerjono Soekanto and Sri Mamudji, Penelitian Hukum Normatif Suatu Tinjauan Singkat, Jakarta: Rajawali Press, 1985, pg 11 23Ibid, pg 52

The research approach applied in this thesis is a case study approach, which aims to focus intensively on one particular object of study as a case to conduct an analysis upon the various factors related, and resulting an accurate conclusion. This type of approach is used to see how Hartati Murdaya can receive

Parole. Moreover, this thesis would also use Conceptual Approach to examine the concepts of Parole contained in several literatures.

The sources of data from this research was collected from library research, performed on various sources of legal materials which can be classified into three types24, namely:

a. Primary legal materials (primary resource).

According to Aricle 1 paragraph 2 of Law No. 10 of 2004, legislation was

written rules established by state agencies or officials, authorized and

binding in general. Based on that understanding, legislation and regulation

can be used as the primary legal materials25. The primary resource in this

thesis would be in the form of the Constitution of the Republic of

Indonesia Year 1945, Indonesian Penal Code, Law No. 12 of 1995 on

Corrections, Government Regulation No. 32 of 1999 on Requirements and

Procedures to Implement the Rights of Prisoners as amended by

Government Regulation No. 28 of 2006 and Government Regulation No.

99 of 2012, the Minister of Justice and Human Rights Regulation No.

M.01.PK.04-10 2007, and Ministerial Decree of Law and Human Right of

the Republic of Indonesia Number M.HH-26.PK.01.05.06 Year 2014.

24Ibid, pg 29 25 Ibid, pg 144

b. Secondary Resource (Unauthoritative records) in the form of legal

materials that can provide clarity and support the primary legal materials

such as literature, research, seminar papers, and articles relating to parole.

c. Tertiary legal materials in the form of legal materials that can provide

guidance and explanation of the primary legal materials and secondary

legal materials such as dictionaries or encyclopedias.

Non-legal materials in the form of interviews were also used to support this research by obtaining information about parole in general and parole granted to graft inmate, Hartati Murdaya.

1.6 Data Collection Methods

In this research, the methods of data collection is literature review.

Nevertheless, Interview were also conducted by using a list of open-ended questions to determine parole in general and to give information as well as clarify the chronological of parole granted on Hartati Murdaya. However, due to the obstacles and a limited timeframe available for research in conducting interviews, the author could only get one participant which is the penitentiary directorate- general spokesman Akbar Hadi.

1.7 Data Analysis

The analysis on the legal material is conducted in descriptive way, meaning the material is presented descriptively and analyzed according to its quality and the realibility. Based on the analysis, the conclusions as the answers of the research's problem is made. The conclusions would be drawn deductively. The applicable regulations of parole for graft inmates in Indonesia would be used as

17 general premises, and later on the specific conclusions would be drawn based on data obtained from this research.

1.8 Systematic of Writing

The systematic of writing of this thesis would elaborate an overview of the things that will be discussed in this thesis. This thesis generally consists of IV

(four) Chapter, which each chapter contains with:

a. Chapter I - Background

This chapter will discuss the background issue of this thesis, the

identification of problem, the benefits and objectives, methodology of

research, theoritical framework, and the systematic of writing.

b. Chapter II – Literature Review

Contains description of the Parole as the right of inmate as well as its

history up to the requirements and procedures, description about

corruption, and theories about the objective of punishment.

c. Chapter III – Case Profile

This chapter will briefly explain the figure of Hartati Murdaya and

furthermore, elaborate the cases starting from the corruption that she have

committed, the sentenced terms received, to her parole release in

chronological order. Thus, a clear view upon the topic raised for this

research would be obtained.

d. Chapter IV – Analytical Chapter

This chapter contains the analysis of parole release toward graft inmates,

Siti Hartati Murdaya (Ministerial Decree of Law and Human Right of the

Republic of Indonesia Number M.HH-26.PK.01.05.06 Year 2014). This

chapter would also elaborate whether the parole given is appropriate with

the central aim of punishment. e. Chapter V – Concluding Chapter

Chapter IV is the concluding chapter consisting of two (2) sub-chapters,

conclusions and suggestions. Here, this chapter will elaborate the

conclusions from the issues discussed, as well as giving suggestions that

can be used as a reference to the topics raised in this thesis.

2. LITERATURE REVIEW

2.1 Rights of an Inmate

Everyone has a basic fundamental of rights and these rights remain attached even when he became convicted. Though in its principle, there are certain rights that can be revoked in criminal courts 26 . Rights of inmates are clearly promulgated in Law No. 12 0f 1995 in which the procedure and its implementation set forth in Government Regulation No 99 of 2012. One of those right of inmates is to obtain a parole.

2.2 Definition of Parole

In the explanation of Article 12 letter K Law 12 of 1995 on Corrections,

Parole is an early discharge after undergoing 2/3 (two-thirds) of a prison sentence which must amount to at least 9 (nine) months. In terms of language, parole is derived from the Dutch translation of Voorwaardelijke Invrijheidstelling27 which known as Conditional Release in the Indonesian language. It is also acknowledged with the term of Voorwaardlijk Straf. Some of the most notable legal scholar in

Indonesia recognized the translation differently28, like Dr.E. Utrecht S.H, R.A

Koesnonen S.H and Soesilo who knows it as “Release on Agreement”. But in the end, the term of Parole is more widely used than other terms.

While in another country such as England and America, a conditional release is famously known as Parole which comes from the French word Parol,

26 This deprivation of certain rights subjected to additional punishment. Only certain rights permitted to be revoked and each limited to certain delik which is firmly expressed by Law. The existence of revocation of certain rights in criminal code were due to legislators assume that additional punishment is appropriate, and not because they want to eliminate a person's dignity but for other reasons such as special precautions. 27 Masfar Ismail, Pembebasan Bersyarat di Indonesia , Jakarta: 1968, pg 6 28 Loc.cit

20 referring to "I give my word of honor" as in giving one's word of honor or promise29. It has come to mean an inmate's promise to conduct him / herself in a law-abiding manner and according to certain rules in exchange for release. A

Parole from those countries referred to the release of an inmate from incarceration to conditional supervision upon the expiration of a certain period, as specified by a determinate-sentencing law or parole guidelines, with a condition that the inmate has behaved well and under supervision of an agency or institution approved by the state until the expiration of the sentence.

2.1.1 The History of Parole

As mentioned in previous chapter, in criminal philosophy, parole is part of the general nineteenth-century trend in criminology from punishment to reformation. Within the era, some parties criticized the imprisonment and switching systems to develop a system of rewards for well-behaved prisoners.

Chief credit for developing the early parole system is given to Alexander

Maconachie30, who was in charge of the English penal colony at Norfolk Island, whom also known as the "Father of Parole".

He criticized definite prison terms and developed a system of rewards for good conduct, labor, and study. He made a procedure where the prisoners could progress through stages of increasing responsibility in which he called the mark

29 Joan Petersilia, When Prisoners Come Home, Oxford University Press, 2003, pg 55 30 Mitchel P. Roth, Prison and prison systems : a global encyclopedia, Greenwood: Greeenword Press, 2006, pg 194

21 system31. By the accumulate marks based on that system, the offenders could ultimately gain freedom as his reward.

Indonesia started to know parole since colonial times 32 . At that time,

Indonesia which ruled by the Dutch have two Penal Code. Both codification was a clone of the French Penal Code, which is also similar with the Netherlands Penal

Code. Those two codifications are:

1. Criminal Code for European groups held by K.B (Koninklijk Besluit) 10

February 1886 contained in staatblad No. 55 of 1886 and declared

effective on May, 1st, 1867.

2. Criminal Code for Native and Foreign oriental, which was further

distinguished into Chinese and non-Chinese, held by Ordonantie 6 May of

1872 and applied on 1 January of 1873.

On those two codifications, the regulation about Parole have not existed yet.

Meanwhile, the new codification of Criminal Code in the Netherlands has come into effect in early 1886 and they start to acknowledge a Parole. In order to incorporated those two codifications with that 1886 Dutch code, the government of Netherlands Indies draft a new codification for the European groups which held by K.B 12 April of 1989 No. 30 and publish it in the Staatblad No. 175 of 1989.

However, this codification has not regulate about Parole because it constrained by several factors, namely33:

31 Ibid, pg 195 32 Masfar Ismail, Op.cit., pg 13 33 Ibid, pg 15

1. Reklasering of inmates is not as easily done as well as in the Netherlands,

who have earlier applied system for parole. At this time, the Netherlands

already emerges a lot of social agencies that are willing to supervise

inmates who are placed on parole while in Indonesia, there are none of

social entities founded.

2. Police supervision is required, and it is also difficult to apply in Indonesia.

General supervision placed on the police, but the police themselves in this

case does not have much time to carry out this work because they already

have basic tasks piling up to be resolved.

Plans to impose a codification for the Europeans finally suspended while awaiting the completion of the draft on Criminal Code for Natives, Foreign Natives, and

Foreign Orientals were rejected and instead, drafting for a uniform Criminal

Code in 1913.

Three years later, in January 1918, all habitants of Indonesia regardless of their population group have been subject to a uniform Criminal Code, Wetboek

Van Strafrech voor Nederlands – Indie (W.V.S). It was only then, the setting of parole begin to regulated. This is because some of the obstacles that arise during the drafting of 1898 (codification of European groups) have been overcome34.

The question arises on why at the time, the Parole accepted for inclusion into the W.V.S, while a conditional sentence (Pidana Bersyarat or Voorwaardelijk

Verordeling) being contained in W.V.S about 12 years later after the Parole despite the fact that both are included in the effort of Relkasering. Apparently, the

34 Ibid, pg 16

Government, particularly the Legislation Board considers that the institution of parole give no objection to accept it at the time, although the Social Agencies that engaged in the field of Reklaasering is not perfect yet and still running on errands.

The Legislation Board considers that the concerns about the possible consequences caused by Parole would not as big as the risks posed by conditional sentence. It is at least due to some of the following matters, namely35:

1. The decision of parole given by an authorized institution, namely the

Minister of Justice.

2. At that time, people who are convicted of three years or less of it can not

be released on parole.

3. The existence of an association to assist and support the people who were

given conditional release decisions.

In addition to some of the things that raised above, parole is considered as a cornerstone of progressive imprisonment system, which can assist inmates in the transition from prison to the community. Parole is also an option and not a necessity.

At the same time in 1915 where Parole has finally regulated in the Criminal

Code, the Netherlands already had Reklasering apparatus and other Social

Agencies that have worked smoothly and well. Unlike Indonesia, where institutions for parole at that time did not develop. This is due to the lack of guarantees in terms of supervision of inmates. Yet, one of a few factor of the success or failure of parole depends on the supervision of the inmates. If the

35 Ibid, pg 17

24 supervision was not executed properly, Parole will only bring harm. Parole supervision carried out by the Prosecutor and in practice transferred to the Police.

This supervision is general, beside there is also a special supervision done by the

Social Bodies or Reklaasering. At that time, no development of parole system were due to36:

1. Lack of guarantee of the supervision of their parole

2. Lack of Social Agencies who want to lend a hand to such supervision;

3. The difficulty of Correctional Institute that will propose a request upon

Parole to the Minister of Justice, because of the information and the

information that must be collected in advance.

2.1.2 Objectives and Functions of Parole

In Correctional Institution, inmates are prepared to reintegrate with the community, so that they could take a role as a responsible members of the society.

The inmates are expected to reconnect into the unity of life and livelihood relationship that exists between the inmates and society. As stated in Article 4 of the Ministerial Regulation No. M.01.PK.04-10 of 2007 on Requirements and

Procedures for Granting Assimilation, Parole, and Furlough as last amended by

Ministerial Regulation No. M.HH-02.PK.05.06 of 2010 (“2007 Regulation”), the objectives and functions of Parole are:

1. Generates motivation or encouragement to Inmates and young

offenders towards the achievement of development goals;

36 Ibid, hal 18

2. Provide opportunities for Inmates and Young Offender for education

and skills in order to prepare to live independently in the community

after release from a sentence;

3. Encouraging people to participate actively in the administration of

Correctional Institution.

Moreover, Rodney J. Henningsen ascribe the following basic functions of parole37, which not only gained advantages for inmates, but also the system and community as well, which is as follows:

1. Provides timing of release

The parole system designed to time the prisoner’s release from

prison so that it coincides with the point when he or she is most likely

to benefit from release. However, Henningsen stressed the point that

other factors such as prison overcrowding may also influence the

timing of release.

2. Provides supervision of released prisoners

The guidance provided by parole supervision offers a partial

solution to the problem of readjustment for released prisoners. Unlike

the prisoner who is simply turned loose to cope as best he or she can

on the outside, a parolee will have a structure adjustment in several

important areas of his or her new life on the outside.

3. Parole gives more economical benefit than incarceration

37 Rodney J. Henningsen, Probation and Parole (HBJ criminal justice series), Boston : Houghton Mifflin Harcourt, 1981, pg 53

Many studies have verified the common-sense observation that

supervising a person on parole is much cheaper than keeping him or

her in prison. It was not only avoiding the cost of institutionalization,

but in many cases the prisoner will be able to work to support his or

her dependents.

4. Facilitates Rehabilitation

Upon this context, the availibility of parole offers prison inmates

hope and encourages them to make appropriate changes in attitude and

behavior so that they may also obtain it. Release on parole helps

prisoner’s ability to readjust to life in the community, and it also aids

rehabilitation by enabling the offender to reassume family and

community roles as soon as possible.

5. Helps protect society

It was then asserted that parole serves an important function in

protecting society from criminal behavior. In contract to outright

discharge, an inmate who released with parole system provides with

control supervision and thus provides more protection for the

community during the period when the risk of recidivism is greatest.

The functions described by Henningsen is in line with that is proposed by

J.E Jonkers. Jonkers points out that Parole aims to (1) help inmates transition back into mainstream society (2) encourage inmates to live better by way of determining particular conditions in a law-abiding manner (3) encourage inmates

27 to work independently for the sake of good goals38. To sum up, from a variety of functions and objectives of Parole, it can be concluded that the parole is awarded to those who earned good behavior throughout the process of sentence. Parole also helps inmate during the transition phase of coming back into society with open arms and allotted the same rights and opportunities that they had before their conviction. It encourage inmates to behave well so that they would no longer commit another crime39.

2.1.3 Legal Grounds of Parole

Legal grounds of parole can be elaborate as follows:

1. Indonesia’s Penal Code

The legal basis of Parole is stipulated in above provisions, as follows:

Article 15

(1) The person sentenced to imprisonment, may, when two thirds of

his actual term of imprisonment and at least nine months of the

term have elapsed, be released conditionally. In case the sentenced

person must serve more imprisonments consecutively, the

imprisonments are considered for this purpose to be one sentence

(2) By this conditional release a probation period for the sentenced

person shall be determined and the condition, which the sentenced

person shall satisfy during the probation period, shall be fixed.

(3) The duration of the probation period is one year longer than the

remaining part of the actual term of imprisonment of the sentenced

38 Chalres L. Newman, Sourcebook on probation, parole, and pardons, Springfield : Charles & Thomas, 1968, pg 88 39 Ibid, pg 89

person. It is not effective during the time that the sentenced person

is lawfully deprived of his freedom.

Article 15 a

(1) The conditional release shall be tied in with the general condition

that the sentenced person shall not commit any punishable act, nor

misbehave himself otherwise

Article 15 b

(1) The conditional release shall be tied in with the general condition

that the sentenced person shall not commit any punishable act, nor

misbehave himself otherwise.

(2) The conditional release may also be tied in with special conditions

with respect to the conduct of the sentenced person, provided these

conditions do not restrict the religious or political freedom,

Article 16

(1) The decisions of the conditional release are taken at the advice of

or after inquiries from the director of the prison where the

sentenced person is present, by the Minister of Justice after receipt

of an advice from the Public Prosecutor of the region where the

sentenced person comes from. These decisions shall only be taken

after the Central Board for the Probation System whose functions

will be regulated by the Minister of Justice, has been heard on the

matter.

2. Article 14, paragraph 1 k Law of the Republic of Indonesia No. 12 of

1995 on Corrections,

" Inmates are entitled to parole".

3. Government Regulation No. 32 of 1999 on Requirements and

Procedures to Implement the Rights of Prisoners

Article 43

(1) Every inmates and young offenders are entitled to Parole

(2) Parole referred to in paragraph (1) for inmates and young offender

after undergoing two-thirds of a prison sentence which must amount to

at least nine months

4. Ministerial Regulation No. M.01.PK.04-10 of 2007 on Requirements

and Procedures for Granting Assimilation, Conditional Discharge,

Parole, and Furlough.

Article 1

(1) Parole is a development process given to adult and young offenders

outside the Correctional Institutions which conducted based on

article 15 and 16 KUHP also article 14, 22 and article 29 of Law

No. 12 of 1995 On Corrections.

5. Ministerial Regulation No. M.01.PK.04-10 of 2007 on Requirements

and Procedures for Granting Assimilation, Conditional Discharge,

Parole, and Furlough, as last amended by Ministerial Regulation No.

M.HH-02.PK.05.06 of 2010 (2007 Regulation).

Article 1

(2) Parole is a development process given to adult and young offenders

outside the Correctional Institutions after undergoing two-thirds of

a prison sentence for minimum of 9 (nine) months.

2.1.4 Requirements on Parole

There are two main elements of the requirements that must be met in granting parole as stipulated in Government Regulation No. 32 of 1999 on

Requirements and Procedures to Implement the Rights of Prisoners as amended by Government Regulation No. 28 of 2006 and Government Regulation No. 99 of 2012, as well as Regulation of the Minister of Justice and Human Rights of the

Republic of Indonesia Number M.01.PK.04-10 2007 on Requirements and

Procedures for Granting Remission, Assimilation, Home Leave, Parole, and

Furlough. Those two main elements are administrative and substantive requirements. Each of it contains a provision that must be met in order to obtain parole.

1. Substantive Requirements

Substantive requirements set out in Article 6 paragraph (1) of the

Regulation of the Minister of Justice and Human Rights of the Republic of

Indonesia Number M.01.PK.04-10 of 2007 are as follows:

a. have shown awareness and remorse for his / her fault that caused

sentenced;

b. have demonstrated the development of moral and positive

character ;

c. participated in guidance programs eagerly and determinedly;

d. Positive reaction from the community to participation in guidance

programs;

e. Well-behaved in the past nine months counted from the beginning

of two-thirds of sentence;

f. Serve two-thirds of prison sentence which must amount to at least

nine months.

2. Administrative Requirements

Administrative requirements set out in Article 7 of the Regulation of

the Minister of Justice and Human Rights of the Republic of Indonesia

Number M.01.PK.04-10 of 2007 are as follows:

a. Quote of the judge's decision (extract verdict);

b. Social research report / assessment made by the Supervising Social or

development progress report Prisoners and Correctional Learners made

by the Mayor of Corrections;

c. Report made by Supervisor of Community (Pembimbing

Kemasyarakatan) or development progress report of Prisoners made

by Correctional Guardian (Wali Pemasyarakatan);

d. Notification letter to the District Attorney regarding the plan of Parole

towards the inmate;

e. A copy of the register, F (list containing about disciplinary violations

committed inmates and correctional Learners during their criminal

past) from the Head of Correctional Institutions;

f. a copy of the list of changes or reduction of crime, such as pardon,

remission, and others from the Head of Correctional Institutions;

g. a statement of the ability of the parties who would receive the inmates

and correctional Learners, such as the family, school, government or

private agencies to be known by the local government;

h. Foreign nationals required additional requirements in the form of letter

of guarantee from the Embassy / Consulate of the country to state the

inmates would not escape and would comply the requirements while

undergoing parole, and letter from the Head of the local immigration

office concerned about immigration status.

The same substantive requirements in granting parole also contained in Article 43 paragraph (2) of Government Regulation No. 99 of 2012. There is an additional requirements for graft inmates in Article 43A and Article 43B of Government

Regulation No. 99 of 2012, which set as follows:

1. Article 43A paragraph (1) and (3) of Government Regulation No. 99 Year

2012:

(1) Granting parole to grafts inmate as referred to in Article 43 paragraph

(2) shall also meet these requirements:

a. Willing to cooperate with law enforcement to help dismantle their

crime;

b. Serve two-thirds of prison sentence which must amount to at least

nine months;

c. Undergone Assimilation for at least one half of their prison

sentence.

(3) Willingness to cooperate as referred to in paragraph (1) on letter a shall

be stated in writing by the law enforcement agencies in accordance

with the provisions of the legislation.

2. Article 43 B

(1) Parole referred to in Article 43A paragraph (1) is given by the Minister

after consideration of the ministry’s Director-General of Penitentiaries;

(2) Director-General of Penitentiaries in giving consideration as referred

to in paragraph (1) shall take into account the interests of security,

public order, and sense of justice.

(3) In giving consideration referred to in paragraph (2) shall request a

recommendation from the relevant agencies, the Indonesian National

Police, the Attorney General, and / or Corruption Eradication

Commission for graft convicts;

(4) The recommendation referred to in paragraph (3) shall be submitted in

writing by the relevant agencies within a maximum period of twelve

(12) working days from the receipt of the request recommendation;

(5) In case of the time limit as referred to in paragraph (4) the relevant

agencies do not submit a written recommendation, the Director

General shall expressed his consideration to the Minister;

(6) The procedure of granting parole referred to in paragraph (3) is

regulated by the Ministry Regulation.

2.1.5 Procedures for Granting parole for Graft Inmates

There are several steps that must be obtained throughout the entire process of granting parole, it can be seen from the diagram below. The procedure is as follows:

1. Correctional Officer record the inmate who had qualified as stipulated

in Article 43A, Article 36 paragraph (2) (c), and Article 43B of

Government Regulation Number 99 Year 2012;

2. Data collection was conducted on requirements and completeness of

documents;

3. Correctional Observer Team of Penitentiary (TPP LAPAS) after

hearing the opinion of the members of the TPP and studying reports on

the progress of development from Wali Pemasyarakatan, propose the

parole application to Head of Penitentiary.

4. When the head of Lapas approve the proposal, TPP Lapas pass the

proposal to the regional offices of the Ministry of Law and Human

Rights (Kantor Wilayah Departemen Hukum dan Hak Asasi Manusia);

5. Furthermore, the Head from regional offices of Head Office of the

Ministry of Law and Human Rights can reject or approve the parole

proposal after considering the results of the trial outcome from TPP of

Regional Offices of the Ministry of Law and Human Rights.

6. When the Head Office of the Ministry of Law and Human Rights

rejected the proposal on parole, within 14 (fourteen) days from the

receipt of the proposal, notifying refusal and the reasons to Head of

Lapas. If it's approved, the proposal is forwarded to the Director

General of Penitentiary within maximum 14 (fourteen) days.

7. If the Director General of Penitentiary refused on the motion of parole

proposal, then within 14 (fourteen) days from the date of

establishment, notify the refusal and the reasons to Head of Lapas.

8. If the Director General of Penitentiary approved on a motion for

parole, the Director General is to convey consideration on granting

parole to the Minister based on the recommendation from TPP of

Directorate General of Penitentiary along with the recommendation

from the relevant agencies (Indonesian National Police, the Attorney

General, and / or the Corruption Eradication Commission);

9. the Approval of granting parole set out by Ministerial Decree.

Picture 2.1 Flow Chart of Parole Procedures Accessed via http://ditjenpas.go.id/sites/default/files/PB.jpg on 1 November 2014

2.1.6 The authority on Granting Parole

Ever since the Dutch East Indies era, the Minister of Justice take charges in giving parole decisions based on inputs given by Reklaasering Central Board, an agency that provides input to the Minister of Justice on various factors against granting Parole. Article 16 of Criminal Code, The decisions of Parole are taken at the advice of or after inquiries from the director of the prison where the sentenced person is present, by the Minister of Justice after receipt of an advice from the

Public Prosecutor of the region where the sentenced person comes from. These decisions shall only be taken after the Central Board for the Probation System whose functions will be regulated by the Minister of Justice, has been heard on the matter.

Article 10 of the Decree of the Minister of Justice and Human Rights of the Republic of Indonesia Number: M.01.PK.04-10 of 2007 concerning

Requirements on Granting Assimilation, Parole, Home Leave, and Furlough also affirms the authority of the of the Minister of Justice and Human Rights of the

Republic of Indonesia

2.2 Criminal Act of Corruption

As already noted in previous chapter, Corruption derived from the Latin word Corruptio-corruptus meaning moral decay, wicked behaviour, or putridity.

In the Sanskerta language contained in the ancient scripture of

Negarakertagama 40 , the literal meaning of corrupt referred to dishonesty, rottenness, and damaged that linked in financial matters. While Black’s Law

40 Dr. Marwan Effendy, Pemberantasan Korupsi dan Good Governance, Jakarta: Timpani, 2010, pg 17

Dictionary defines corruption as the act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others, a fiduciary or official use of a station or office to procure some benefit either personally or for someone else, contrary to the rights of others, an impairment of integrity, virtue or moral principles; especially impairment of a public official’s duty by bribery.

In its practice, the existence of corruption divided into two forms namely

Administrative Corruption and Against The Rule Corruption, where everything is supposedly run in accordance with the laws / regulations41. However, there are certain individuals who enrich themselves or attempt to use or seek profit from the situation. Suppose one of them during the implementation of the project tender, where the election / selection as if it had been held in accordance with the rules / law, when in fact the winner has been determined in advance. Meanwhile, Against

The Rule Corruption is the meaning of corruption made entirely contrary to the law42. For example, among others: bribery, abuse of power to enrich themselves or another person or a corporation.

In juridical terms, both of the meaning and the type of corruption has been formulated and defined in Law No. 31 1999 juncto Law No. 20 of 2001 regarding

Eradication of Criminal Acts of Corruption, as well as the previous legislation namely Law No. 3 of 1971. In juridical sense, the notion of corruption is not confined only to acts that meet the formulation of delik that could bring detrimental effect to financial or economical of the State, but also includes actions

41 Ibid, pg 20 42 Loc.cit

38 which could also bring detrimental effect to the individual or society.

Furthermore, for some other definitions, it is mentioned that43:

1. Corrupt means rotten, like receiving bribes / kickbacks, use power for their

own interests and so on;

2. Corruption means foul deeds such as embezzlement, acceptance of bribe,

and so on; and;

3. The Corruptor means that people who engage in corruption.

Thus, based on those definitions the act of corruption involves something that is immoral, with regard to the nature and circumstances of the foul, concerning government officials, concerning economic and political factors, and abuse of power in office for administration.

Most Indonesian legal scholar does not consider corruption as an extraordinary crime. It is believed that an extra ordinary crime can be classified as a violation of human rights (gross violation of human rights). Even so, most of the others argue that corruption can be regarded as an extraordinary crime as it evokes a broad effect on the moral and social life of the community, which can be associated as an extraordinary crime. Romli Atmasasmita asserted44, corruption is an extraordinary crime because corruption is a violation of human rights in terms of social rights and economic rights. It is also revealed by Muladi, which states that corruption is an extraordinary crime because it is has been so endemic, already a systematic, and rooted (ingrained) that it affects everyone from the

43 Tim Penulis Buku Pendidikan Anti Korupsi, Pendidikan Anti Korupsi untuk Perguruan Tinggi, Jakarta : Kemendikbud, 2011, pg, 24 44 Romli Artasasmita, Korupsi, Good Governance dan Komisi Anti Korupsi di Indonesia, Jakarta: Badan Pembinaan Hukum Nasional Departemen Kehakiman dan HAM RI, 2002, pg 44

39 village level all the way to the center of power and appear as one of the causes of economic crisis and stagnation45. In fact, Deny Indrayana does not only confirms corruption as an extraordinary crimes, but also crimes against humanity. He said that corruption is the source of all disasters and crime, the roots of all evils46.

Corruptor even relatively more dangerous than terrorists. Trillions of dollars looted by a corruptor is equal to the cost of living of hundred millions of poor people in Indonesia. Corruption is perceived to undermine the moral of society, deny social rights and economic, especially the haves-not and the weak so that it detoriates the development of a state47. In the viewpoint of human rights, an endemic and systematic corruption considered as violation of the rights of social and economic rights of the people so that corruption should be classified as an extraordinary form of crime48.

There are, among others, four characteristics which makes corruptions as an extraordinary crime49. First, corruption regarded as an organized crime that carried out systematically. Second, corruption is usually done with a difficult modus operandi that is not easy to prove. Third, corruption is always associated with power. Fourth, corruption is a crime related to the fate of many people because the harmed financial state could be very useful to improve the welfare of the people. As a result, the financial and economy of the state is reduced and

45 Loc.cit 46 Denny Indrayana, Negeri para mafioso: hukum di sarang koruptor, (Kompas: 2008), hal 4 47 International Conference Against Corruption, Declaration of the 8th International Conference Against Corruption, signed in Lima, Peru, 11 September 1997 48 Further explanations on Law No 30 0f 2002 on Corruption 49 Saldi Isra dan Eddy O.S Hiariej, Perspektif Hukum Pemberantasan Korupsi di Indonesia, dalam Wijayanto dan Ridwan Zachrie, Korupsi Mengorupsi Indonesia: Sebab, Akibat dan Prospek Pemberantasan, Jakarta: Gramedia Pustaka Umum, 2009, pg 564

40 disturbed. People that are economically or politically vulnerable would be unable to live a decent life, their children would not get a fair education as well.

Aside of all that, corruption has actually been deeply rooted in the past.

Mochtar Lubis explained that in the feudal period in Europe and Asia, including

Indonesia, the vast lands are owned by the king, and the king handed over to the prince of the nobility to oversee the extensive lands in various regions. Through the princes who were assigned to supervise the land, the people who inhibits the land were ask to collect rant fees and taxes. The rest of the taxes would be taken for granted by the princesses. Similar things are also happened in the Indonesian kingdoms in ancient times where the obligations of forced labor and collecting taxes, which was charged to the public, conducted within the framework of customs, culture, and customs passed down through generations, and those were considered as something that is appropriate50.

Those practices of the officials who are now considered to be corrupt, at that time, in the value of the current prevailing culture and society regarded as a natural thing. Corruption that is widespreading in Indonesia, was rooted in that past, when the authority who have power developed the framework of feudal which make corruption easily evolve51.

There are several elements of criminal acts of corruption as set out in article 2 and article 3 of Law No. 31 of 1999 in conjunction with Law No. 20 of

2001 regarding Eradication of Criminal Acts of Corruption, namely:

50 Ibid, pg 588 51 Ibid, hal 590

a. Anyone unlawfully enriching himself and/or other persons or a

corporation;

b. Against the Law;

c. Damaging the finances of the state or the economy of the state;

d. Abusing the authority, the facilities or other means at their disposal

due to rank or position.

While the formulation of delik of corruption can be grouped as follows, namely:

1. Type of delik which can be detrimental to the financial state or economy;

2. Type of delik as bribery offense and gratifications;

3. Type of delik of embezzlement ;

4. Type of delik of extortion by state apparatus (knevalarij, extortion);

5. Type of delik of forgery / falsification;

6. Type of delik of swindle done by contractor or supplier and associates.

2.3 Purpose of Punishment

First of all, before describing the further purpose of punishment, the author will explain the notion of punishment. It all derived from straf, Dutch terminology which basically regarded as suffering (sorrow) deliberately charged / imposed on a person who has been found guilty of a criminal offense. To provide a broader picture, the following are a few opinions or definitions of some legal scholars:

1. Prof Sudarto, SH

What is meant by punishment is suffering that deliberately imposed to

those who commit acts that meet certain conditions.

2. Prof. Roeslan Saleh

Punishment is a reaction to the offence, in the form of pain or other

normally considered unpleasant that deliberately inflicted by State to

the offender.

3. H.L.A Hart

Punishment must52:

a. Involve pain or other consequences normally considered

unpleasant;

b. Be for an actual or supposed offender for his offence;

c. Be for an offence against legal rules;

d. Be intentionally administered by human beings other than the

offender

4. Alf Ross

Punishment is that social response which53:

a. Occurs where there is violation of a legal rule;

b. Is imposed and carried out by authorised. Persons on behalf of the

legal order to which the violated rule belongs;

c. Involves suffering or at least other consequences normally

considered unpleasant;

d. Expresses disapproval of the violator.

From some of these definitions, we can conclude that punishment contain this kind of elements or characteristics as follows 54:

52 Muladi, Barda Nawawi Arief, Bunga rampai hukum pidana, Bandung : Alumni, 2007, pg 11 53 Loc.cit

(1) Punishment is essentially an imposition of suffering or sorrow or other

consequences that are unpleasant;

(2) Punishment was given on purpose by a body which has the power (the

authorities);

(3) Punishment was imposed on a person who has committed a crime under

the law.

Meanwhile, what is meant by punishment is a granting sentences by the

Judge. As Sudarto has described, "Penghukuman berasal dari kata hukum sehingga dapat diartikan sebagai menetapkan hukum atau memutuskan tentang hukumnya (berechten).” To Establish that is not only related to the field of criminal law, but also civil law. Furthermore he pointed out that the term of

Pemidanaan is synonymous with Penghukuman, which in this terms having the same meaning as sentence or veroordeling.

Barda Nawawi Arief said some purpose of punishment is as follows 55:

1. Overcoming Crimes.

The formulation of such criminal purpose of this background is the

need to protect society against anti-social acts that would harm and

endanger the public. This goal is often used with a variety of terms such

as repression of crime, reduction of crime, prevention of crime and even

control of crime.

2. Treatment of Offenders

54 Ibid, pg 40 55 Muladi, Op.Cit, pg 34

This goal arouse by the need to protect the public against

dangerous nature of the perpetrator. Other terms that are commonly used

to reflect on this purpose, among other, is rehabilitation, reform, treatment

of offenders, re-education, social re-adaptation, correctional

resocialization, and liberation.

3. Restoring the balance of community

This goal motivated by the need to protect the public by

maintaining a balance or harmony of the various interests and values that

disturbed by the presence of a crime. During its development, the purpose

of punishment evolve with the emergence of theories of punishment.

There were three kinds of theories about the objective of punishent,

namely56:

a. Absolute Theory (Retributive)

The absolute theory emerged in the late 18th century. Adherents of

this theory, among others are Emmanuel Kant, Julius Stahl, and Leo

Polak. This theory considers the punishment was in retaliation for the

mistakes that have been made, so the punishment is to be inflicted,

because a crime has been committed (quia peccatum est). This theory

emphasizes that the criminal law sanctions imposed solely because the

person has done something that is a result of absolute evil that must exist

as a retaliation against those who do evil. So that sanctions aimed at

satisfying the demands of justice. The nature of this theory is retaliation,

therefore the benefits arise from punishment is not considered important.

56 Ibid, pg 29-32

This theory assumes that the punishment given to the offender is a fair

compensation for the damage that they have caused. Along with its

development, the adherent of this theory began to evolve. The concept of

retaliation is no longer in the sense that the criminal is a must for the sake

of mere justice, but as a restriction in the context of the balance between

the action and the punishment57.

b. Teleological Theory (Relative)

Teleological theory which is also known as objectivist asserts that the

criminal purpose is not merely to do a reward or retaliation against person

who have committed a crime, but it has certain goals that are beneficial58.

Unlike retributive theory, the justification upon the existence of

punishment according to this theory lies in its purpose. Punishment is to be

inflicted, because a crime has been committed (quia peccatum est) it is to

prevent someone to commit a crime (ne peccetur). In criminal law, this

theory are grouped into General Prevention (generale preventie) and

Special Prevention (specialle preventie) 59 . According to the theory of

General Prevention, the objection to be achieved is prevention that

adressed to the public, so that they do not commit a violation of the order

and bolstering the law-abidingness of the rest of the population. General

Prevention, on the other hand may be described as the restraining

influences emanating from the criminal law and the legal machinery, by

means that the decision of the courts and action to that extent would

57 Ibid, pg 29 58 Muladi dan Barda Nawawi Arief, Op cit, hal 31 59 Loc cit

function as a stimuli that restrain citizens from socially undesired actions

which they might otherwise have committed60. While Special Prevention

intended to restrain criminals not to repeat the crime or detain prospective

offenders to commit crimes that might have been planned. The preventive

measure in this theory though, is not the main objective, but merely as a

means to achieve a higher goal, namely the welfare of society61.

c. Teleological-Retributivist theory

These theories combine elements of both of the other kinds. It

combines the principles of teleological and retributive as a whole. They

are concerned with justice, which means only the guilty deserve

punishment, and they deserve only what's fair for the wrongs they have

done, so they should never be punished more than they deserve to be in

accordance with justice. These theories also think that punishment should

also occur in part to promote certain ends, like what have been listed

above in teleological theories. To sum up, these theories say that we are

either permitted or obligated to punish wrongdoers less than they deserve,

if doing so will promote some other valuable end62.

Furthermore, the severity of the punishment should fit the absolute justice that does not exceed the desired justice by society (social justice). So it can be concluded that the objectives to be achieved by punishment is (1) the restoration of order, (2) prevention of the intention to commit a criminal offense, (3) personal

60 Johannes Andenaes, the general preventife effects of punishment

61 Loc.cit 62 Ibid, pg 32

47 improvement of the offender (4) provide appropriate moral satisfaction to the community's sense of justice, and (5) provide sense of security for the people63.

63 Muladi, Op.Cit, pg 19

3. CASE PRFOILE : PAROLE RELEASED OF HARTATI MURDAYA

Dra. Siti Hartati Murdaya Tjakra (Chow Ling) or better known as Siti

Murdaya is an Indonesian businesswoman who starte her business with electricity and generators equipment under the flag of PT Kencana Sakti Indonesia. As one of the richest people in Indonesia according to Forbes magazine in 2008, she has a lot of business from holding Nike shoes brand owners to work together to produce the Nike sport shoes in Indonesia, up to a wide range of business like property, mining, agro-industry, Electric Steam Power (PLTU), and palm oil plantations64.

Her palm oil plantations, standing under the name of PT Hardaya Inti

Plantations (HIP) is one of her subsidiary company namely PT Cipta Cakra

Murdaya (CCM). Since 1994, through her palm plantation company PT Hardaya

Inti Plantations (HIP) has been licensed and occupies a site of 75.090 hectares in

Buol. In 1996, from the total 75.090 plantation permit of PT HIP, 22.780,76 hectars among them already earned the Right of Cultivation (HGU). And yet, the remaining are a of 52.309,24 haven't had the concession. In 1999, PT HIP filed a

Right of Cultivation to the National Land Agency (BPN) through the head of BPN

Regional Office for Central Sulawesi to obtain that right for the 33.083 hectares of

52.309,24 hectares which have not been granted the HGU.

However, the application could not be processed. This is due to regulation issued by the State Minister of Agriculture/National Land Agency, No. 2/1999 in year 1999, regarding Location Licenses. Based on the above National Land

Agency regulation, as stipulated in Article 4 paragraph (1) letter C which states

64 Nita Dian, Profil Hartati Cerdik Mencari Sandaran, accessed via http://www.tempo.co/read/news/2012/08/08/078422222/Profil-Hartati-Cerdik-Mencari- Sandaran on 24 October 2014, 09:23

49 that a plantation company must obtain a Location License from the Land Office prior to acquiring land for the plantation area. This regulation, however, stipulates that a plam plantation company can only own/control a maximum of 20.000 hectares in one province.

As a result, the location licenses of the 52.309,24 hectares hold by PT

CCM does not apply. On the other hand, the 4.500 hectares of the land were planted with palm oil by PT HIP. To outcome that problem, in 2011 PT HIM apply for a license on the location of the land of 4.500 hectares, which already planted by palm oil, to the regent of Buol Amran Batalipu on behalf of PT Sebuku

Inti Plantation, another subsidiary company from PT CCM. Because the location license has not issued yet, on 15 April 2012 they arrange the meeting in VIP guest room of Jakarta International Expo Kemayoran, a property controlled by Hartati, which was attended between the board of directors of HIP namely Siti Hartati

Murdaya, Totok Lestiyo, dan Gondo Sudjono Notohadi Susilo and Amran

Batalipu. She iniated the meeting with Amran Batalipu to discuss the survey result of his re-nomination as head of the region in Buol65.

On that occasion, Hartati asked Amran to issue a business permit over an area of 4.500 hectares in Buol that has been planted by PT CCM or PT HIP. She also asked him to expedite the issuance of a business permit that she needed for her oil palm plantation company66.

At the meeting, she convey that she does not have the location license over her 4500 hectares palm plantations in Buol. She also complained about the

65 High Court Decision Number 13/PID/TPK/2013/PT.DKI, 24 April 2013, pg 4 66 Ibid, pg 5

50 transfer of her previously owned plantation area of HIP to PT Sonokeling Buana owned by Arthalyta Suryani, and therefore she asked Amran to issue a business permit for her company rather than giving it to her competitor company, PT

Sonokeling Buana and Amran agreed to the request.

On 11 June 2012, Amran rearrange the meeting with board of directors of

HIP, Hartati, Totok, and Arim in Grand Hyatt Hotel lounge. Hartati asked for help in order to curb the demonstration of workers in PT HIP plantation area, handling the location permit, and make recommendations upon Plantation Business Permit

(IUP) and HGU covering an area of the already planted 4.500 hectares of PT HIP.

Amran agreed in condition, that he would undertake those matter if Hartati provided Rp 3.000.000.000 (three billion dollars). They agreed that a total of Rp

1.000.000.000 (one billion dollars) amount is to be deliverd first by Arim, and the rest of it would be delivered by Anshori67.

On 12 June 2012, Hartati ordered Arim to hand over the first 1 billion in order to expedite the issuance of HGU of 4.500 hectares of plantation area in the name of PT CCM, plus an additional request that the HGU of 22.000 hectares would not be reduced. Arim was ordered to make a back-dated application letter of HGU, a Letter Number : 020/CCM-TL/V/2012 regarding the location permit and recommendation to obtain the HGU on the location of PT CCM with the date of 21 May 2012, and it was signed by Totok Lestiyo. Later on, Arim along with

67 Loc.cit

Gondo submit the letter to Amran in Metro Tiga Berlian showroom, Yos Sudarso,

North Jakarta68.

Afterwards, 15 June 2012, Arim went to Buol to deliver the 1 billion from

HIP. The money were wrapped in the rucksack, along with letters to be signed by

Amran. Those letter and money were about to submittd to Amir Togila, assistant 1 of Buol Regency / Head of Land of Team of Buol (Tim Lahan Buol) which consisted of a letter of recommendation from Team of Land on Location Permit upon the application of Location license of PT Sebuku Inti Plantations (SIP) made in Buol, June 4, 2012, letter of Buol Regent to Governor of Sulawesi number:

100/58-06/ADPUM dated June 7, 2012 on the plantation's business license in the name of PT CCM on the area of 4.500 hectares, Letter of Buol Regent to the State

Minister of Agriculture/ National Land Agency number: 100/59.06/ADPUM dated June 7 2012 concerning Policy application of 4.500 hectares HGU of Palm plantation in the name of CCM/HIP, and a letter from Buol Regent to SIP dated

June 7 2012. The money was delivered at the residence of Amran Batalipu on 18

June 2012. The remaining 2 billion rupiahs was submitted afterwards on June 26,

201269.

Based on those chronology events, on 12 September 2012, Siti Hartati

Murdaya detained by KPK investigators on the case of bribery to state officials. In this case, Hartati Murdaya designated as the lead actor bribery. Hartati was found guilty of paying Rp 3 billion (US$ 309,000) in bribes to Amran Batalipu, the former regent of Buol in Central Sulawesi, in order to expedite the issuance of a

68Ibid, pg 6 69Ibid, pg 13

52 business permit that she needed for her oil palm plantation company, PT Hartati

Inti Plantation. She was charged with Article 5 of the 2001 Corruption Law in conjunction with Article 55 paragraph (1) of the Criminal Code to-1 jo. Article 64 paragraph (1) of the Criminal Code. A panel of judges at the Jakarta Anti-

Corruption Court sentenced her to two years and eight months in prison. She was also fined Rp 150.000.000 (one hundred and fifty million) subsidiary three months in prison if the fine is not paid and there was no additional punishments.

In this case, there are some aggravating aspects to Hartati. First, her actions have damaged the government bureaucracy within the spirit of clean and free from corruption, collusion, and nepotism. Her act was also deemed to be contra-productive as a businesswoman toward the spirit and effort to eradicate corruption in Indonesia and that she created uneven playing field in the investment climate of eastern Indonesia.

Nonetheless, there are also mitigating factors for her. As a businesswomen, Hartati was a pioneer investor that has brought economy development to Buol, she is credited with building up the local economy.

Moreoever, Hartati has a clear record and the fact that she has been respectul and well-mannered during the ongoing trial also trotted out as a mitigating factors70.

Hartati's lawyer, Denny Kalimang appealed the verdict for his client. On the other hand, the KPK also filed an appeal against the sentence, seeking a longer jail term because the verdict is considered far from the demands of five years by the prosecutor. However, the Jakarta High Court announced that they upheld the

70 FAT, Tak Sampai Tiga Tahun Hukuman Konglomerat, accessed via http://www.hukumonline.com/berita/baca/lt510f7e3bd2632/tak-sampai-tiga-tahun--hukumankonglomerat on 24 October, 10.00 WIB

53 previous verdict handed down by the Jakarta Corruption Court that sentenced

Hartati to two years and eight months in prison in bribery case of Cultivation

Business Permit (IUP) and Right to Cultivation (HGU) in Buol, Central Sulawesi.

The panel of judges at the Jakarta High Court decided to uphold the verdict because no new evidence was presented by the prosecution. There were no new legal facts presented, instead it was just repetitions that has been considered correctly by the judges. Thus, according to Jakarta High court, the previous verdict from the Jakarta Corruption Court must be uphold71.

Picture 3

Scheme of Hartati Murdaya’s Parole Released Source: Directorate of Directorate General of Penitentiaries Jakarta

71 High Court Decision Number 13/PID/TPK/2013/PT.DKI, 24 April 2013, pg 116

Siti Hartati Murdaya started detained at Pondok Bambu Penitentiary in

East Jakarta since September 12, 2012. The Parole process application take the beginning with the hearing fron Correctional Observer Team (TPP) and Technical

Implementation Unit (UPT) and proceed to the next session to TPP of Regional

Office and next to the Directorat General of Penitentiary. On 26 June 2014, TPP of Directorat General of Penitentiary held a hearing session on the Parole

Homeleave, and Furlough of inmates. The agenda includes discussion session to the Parole application proposed by Siti Hartati Murdaya. Her stages of development that she has undergone are as follows:

1. 1/3 criminal imprisonment on 29 July 2013

2. 1/2 criminal imprisonment on 10 January 2014

3. 2/3 criminal imprisonment on 19 June 2014

4. Expiration on 10 May 2015

The Law and Human Rights Ministry’s director general of penitentiaries had sent the letter to the KPK, regarding the relevant recommendations on parole release based on the outcome of hearing sessions from TPP of Directorate, which ask for recomendation to the KPK on parole application of Hartati Mrudaya with number PAS-PK.01.05.06-238 dated 30 June 2014. Once it past the time limitation of 12 days after the receipt of recommendation letter, thus in accordance with PP 99 Article 43B Paragraph 4, the Directorate filed an office memo (nota dinas) to the Minister regarding Hartati Parole released.

After that, on 23 July 2014, the Minister of Justice and Human Rights issued a Ministerial Regulation of Ministry of Justice and Human Rights No.

M.HH-26.PK.01.05.06 year 2014 on 22 Juli 2014 regarding Parole in the name of

Siti Hartati Murdaya sent to the Penitentiary class II A (Pondok Bambu) in East

Jakarta to implement the parole release. On August 12, 2014, the response from

KPK by letter number B-4186/55/08.2014 upon recommendation regarding

Parole application of Siti Hartati Murdaya received, and it states that the KPK can not issue a letter of recommendation on Hartati's parole application because the public prosecutor never classified her as a justice collaborator.

The implementation of parole release was pretty much different from other type of ordinary inmate release, therefore Hartati Murdaya as correctional clients have certain obligations in addition to comply with the terms and conditions, among which she shall report to the Correctional Center (Balai Pemasyarakatan) of Central Jakarta, where she resides. She must also follow the guidnace given by the Supervisor of Correctional Center. She must not travel abroad, and shall comply with the order for a client of correctional starting from her parole release plus one year probation, calculated from the expiration date which is 10 May

2015. After the implementation of parole, Hartati must began her mandatory report in each month starting from 4 August 2014.

4. ANALYTICAL CHAPTER

4.1 Ministerial Decree of Law and Human Right of the Republic of

Indonesia Number M.HH-26.PK.01.05.06 Year 2014

The Parole granted by the Minister of Law and Human Rights of the

Republic of Indonesia, Amir Syamsudin sets out in Jakarta on 22 July 2014 for

Graft Inmate, Siti Hartati Murdaya as follows:

1. Release inmate whose name is listed in column 3 (Three) with special

conditions listed in column 7 (seven) on the appendix.

2. Whereas during the Parole, the designated residence was appointed as

stated in column 9 (nine) on the appendix.

3. To order the Head of Penitentiary/Detention House/ and branch of

Detention House to implement the Parole referred to in the first dictum

above in column 10 (ten), on the date listed in column 6 (six) of the

appendix.

4. To request the Head of Attorney General in column 12 (twelve) to carry

out supervision over the obeyed requirements and conditions of inmate

during the process of Parole, which would be ended as mentioned in

column 8 (Eight) of the appendix and submit a report on the inspection of

every three months the Ministry of Law and Human Rights of the

Republic of Indonesia.

5. To order the Balai Pemasyarakatan listed in colum 13 (thirteen) of the

appendix to implement the guidance and supervision.

6. This decision shall take into effect from the date of Parole release by the

Head of Penitentiary/Detention House/ and branch of Detention House as

stated in third dictum, with additional note if in the upcoming future an

error occured, this decision would be amended as necessary.

List of Appendix of Ministerial Decree of Law and Human Right of the

Republic of Indonesia Number M.HH-26.PK.01.05.06 Year 2014, 22 July 2014:

1. Serial Number from TPP : XXXIX-42/194979

/ Nomor Urut Buku Besar

2. Parole Application : Regional of Ministry of Law and

Human Right

from / Date / Number / Coordinator DKI Jakarta, Dated 26-06-2014

unit Number W10.PAS.PK.01.05.06-

818

Rutan Class II A East Jakarta

Assessment and Evaluation Result :07-03-2014

TPP of Regional Office of Law and

Human Right DKI Jakarta

3. a. Name / Ages a. Siti Hartati Murdaya / 67 year old

b. Nationality / State b. WNI / Indonesia

c. Religion c. Buddha

d. Case d. Corruption / Law No. 20 Year

2001

e. Number / Date of Verdict e. 13/PID/TPK/2013/PT.DKI/24-04-

2013

f. Detained since f. 12-09-2012

g. Total Sentence/Imprisonment g. 2 year 8 month 0 day

h. Expiration h. 10-05-2015

i. Total Remission i. 0 month 0 day

j. Final Expiration j. 10-05-2015

k. Amount of Fine k. Rp 150.000.000 Subs. 0 year 3

Month

l. Money Substitutes l. –

4. a. Directory Number a. -

b. Register Number b. BI.224/W/13

5. Assessment and Evaluation Result :26-06-2014

from Correctional Observer Team

(TPP) of Directorate General Peni-

tentiary

6. Date of parole release :Immediately

7. Special conditions during :Must comply and abide the rules

parole from Balai Pemasyarakatan

8. Termination :10-05-2016

9. Appointed resident :Jl. Teuku Umar No 42-44 Rt 01 Rw

01, Kelurahan Gondangdia,

Kecamatan Menteng, Jakarta Pusat

10. Head of Coordinator Unit :Class II A Penitentiary of East

Jakarta

11. Head of Attorney General who :East Jakarta Prosecutor’s Office

took transfer (early supervision)

of paroled inmate

12. Head of Attorney General who :Central Jakarta Prosecutor’s Office

supervise parole

13. Balai Pemasyarakatan which :Central Jakarta

implement the guidance

4.2 Completeness upon parole’s requirement of Hartati Murdaya as

Graft Inmate

4.2.1 Substantive Requirements

In Article 43 In Article 43 paragraph (2) of Government Regulation No. 99 of

2012, there are requirements of granting parole to graft inmate, namely:

a) Have served 2/3 (two-thirds) of prison sentence which must amount to at

least 9 (nine months).

Calculation upon sentence of parole is stipulated in Article 91 and Article 92 of the Regulation of the Minister of Law and Human Rights Republic of Indonesia

Number 21 of 2013, namely:

Article 91

(1) Calculation of Prison sentence was being conducted since the first time

inmates detained;

(2) When the period of detention as referred to in subsection (1) is terminated,

the determination of the length of prison sentence would be calculated

since his last detainment, by also considering the total period of detention;

(3) If there is a home confinement / or detention of the city, the detention

period is calculated in accordance with the provisions of the legislation.

Article 92

(1) Calculation of undergoing 1/3 (one third), 1/2 (one half), or 2.3 (two-

thirds) criminal past, is 1/3 (one third), 1/2 (one per two ) or 2/3 (two

thirds) of the criminal sentence is reduced to remission and is calculated

from the day of first detention;

(2) Calculation of prison sentence as referred to in paragraph (1) is conducted

by using telraam.

Calculation of 2/3 (two thirds) of criminal sentence of Hartati Murdaya is as follows:

Term of sentence : 2 Year 8 Month

Detained since : 12 September 2012

Remission : -

2/3 of criminal sentence : 19 June 2014

b) Well-behaved in the past nine months counted from the beginning of two-

thirds of sentence;

Penitentiary directorate-general spokesman Akbar Hadi delivered the testimony of the Head of Class II A Penitentiary of Pondok Bambu, Sri Susilarti Bc,IP SH.Msi who explained that Hartati Murdaya, inmate with number register of

BI.224/W/13 starting from the initial stage of guidance which includes the period of observation to implementation of the program of the personality and self- reliance and up until now, always appeared to be well-behaved.

c) Have participated in guidance programs eagerly and determinedly;

Based on Assessment Report upon guidance programs in Pondok Bambu

Penitentiary made by Jakarta Regional Office of Ministry of Law and Human

Rights of the Republic of Indonesia, the result in general would be elaborate as follows:

1. Attitude and Personality

The inmate has always appeared to be polite, diligent, and obedient

to the guidance and instructions given by penitentiary officers, especially

Inmate Custode (Wali Napi). With clean disciplinary records and positive

attitudes, she always earned good marks toward her attitude and

personality.

2. Health

Based on medical records, the inmate had suffered high blood

pressure, cholesterol, diabetes, heart disease, thyroid problems, and uterine

disease. Nevertheless, she had never suffered either one of those disease

that could endanger her state of health during her prison sentence in

Pondok Bambu Penitentiary.

3. Expectations

The inmate wished if her parole would be granted, she would

reunite and will be back together with her family, return to her active and

productive in socio-religious activities especially in the Buddhist

community, and back to running her business in attempt to support the life

of more than her 55 (fifty-five) thousand of employees, as well as doing

her philanthropic deeds.

4. Social Relations

a. Social Relations between the officers

Social relations with the officers has been pretty good. The inmate

always abide the directives / instructions given and always cooperative

to the guidance given.

b. Social relations between fellow inmates

The inmate never had a problem with the other occupants. She can

adjust / adapt well to the environment in Pondok Bambu Penitentiary

c. Social relations between family

The family relationship runs normally and very well. The inmate

remained in a regular visit, mainly by her husband and her children.

This visit also play an important way to maintain connections during

incarceration and enhances the prisoner’s success both while in

Penitentiary and after release.

d. Positive reaction from the community to participation in guidance

programs

Based on Assessment Report for outside-Penitentiary guidance

(Laporan Hasil Penelitian Kemasyarakatan untuk pembinaan luar

Penitentiary) told by Directorate spokesman Akbar Hadi, the local

government and communities especially the district head Eko

Kardiyanto, S.STP, respond positively and support the plan of outside

penitentiary guidance of Hartati Murdaya for it is a fundamental rights

for the inmate and this opportunity would given the chance to improve

herself to be better. This was also mainly because the inmate has a

clear track record and active in social activities in the community. The

inmate also expressed her willingness to not repeat her criminal act.

4.2.2 Administrative requirements

a) Quote of the judge's decision (extract verdict);

The copy of extract verdict Number: 13/PID/TPK/2013/PT.DKI

Concluded the defendant, Siti Hartati Murdaya, has been proven legally

and convincingly guilty of corruption as regulated and shall be liable

under Article 5, paragraph (1) letter a of Law No. 31 of 1999 on Law 31 of

1999 on Criminal Acts of Corruption as amanded by Law No. 20 of 2001

jo. Article 64 paragraph (1) jo. Article 55 paragraph (1) of the Criminal

Code in the first indictment. The judges of Jakarta High Court has upheld

a previous verdict issued by Jakarta Corruption Court Number

76/PID.B/TPK/2012/PN.JKT.PST on 2 (two) years and 8 (eight) months

of imprisonment and pay Rp 150.000.000 (150 million) in fines or extra

three months subsidiary term. b) Progress report on guidance program made by Wali Pemasyarakatan or

result of risk assessment and assessment of needs conducted by the

assessor.

Progress report of guidance made by Wali Pemasyarakatan is

available in Kartu Pembina Narapidana with Register Number

BI.224/W/13 c) Letter of notification to the District Attorney upon the plan of parole for

inmates and state children.

DKI Jakarta's Regional Office of Ministry of Law and Human

Rights of the Republic of Indonesia has sent a notification letter to the East

Jakarta District Attorney on the plan of the parole of Hartati Murdaya d) A copy of the register, F (list containing about disciplinary violations

committed inmates and correctional Learners during their criminal past)

from the Head of Correctional Institutions;

Based on the Date of Letter F on behalf of inmate, Siti Hartati

Murdaya/ BI.224/W/13 found that she had no violation of the order of

conduct of Penitentiary. e) A copy of the list of changes from the Head of Correctional Institutions

Name/ Age / Sex : Siti Hartati Murdaya / 67 year old / Female

Court Verdict : Central District Court

4 February 2013 Number

76/PID.B/TPK/2012/PN.JKT.PST

High Court :24 April 2013 Number

13/PID/TPK/2013/PT.DKI

Criminal Charged : Article 5, paragraph (1) letter a of Law No.

31 of 1999 on Law 31 of 1999 on Criminal

Acts of Corruption as ammended by Law

No. 20 of 2001 jo. Article 64 paragraph(1)

jo. Article 55 paragraph (1) of Criminal

Code

Criminal Sentence : 2 (two) year 8 (eight) month, starting 12

September 2012

Detained Since : 12 September 2012

Fines / money : Rp 150.000.000 (one hundred and fifty

million) 3 months substitute : subsidiary term (PAID)

Expiration of criminal sentence on 10-05-2015, suggest the head of

Penitentiary Pondok Bambu

f) Affidavit of inmate or state children to abide the law and will not do

anything against the law

Based on the affidavit made by Siti Hartati Murdaya, it states that the concerned person will not do anything against the law. The letter of guarantee undersigned by family and acknowledged by village chiefs or sub-district heads or other names stating that:

1. Inmates or state children will not escape and / or doing anything against

the law; and

2. Assisting, guiding, and supervising inmates or state children during the

course of parole

Murdaya Widyawimarta Poo, husband (hereinafter referred to as family /

relative) of inmate, Siti Hartati Murdaya provide statement that if the inmate

get Assimilation / home leave / parole, on behalf of the family:

1. Willing to accept the above-mentioned inmate to stayed with us;

2. Willing and able to guarantee the above-mentioned inmate's fulfillment of

needs, both morally and materially;

3. Able to fully guarantee that the above-mentioned inmate will not flee the

area of jurisdiction during the parole period;

4. Able to supervise and guide the above-mentioned inmate in order to

become a responsible citizen; and

5. Able to guarantee that the above-mentioned inmate will comply with all

applicable regulations applying during the parole period from Balai

Pemasyarakatan and be sued before the law if the above-mentioned

inmate has violated the applicable regulations.

There are additional clause in Article 43A of Government Regulation Number 99 of 2012, which states as follows:

(1) the Parole granted to inmates must meet the requirement which is a

willingness to cooperate with law enforcement to help dismantle their

crime (justice collaborator);

Justice collaborator means any person who faces criminal charges, or has been convicted of taking part in a criminal association or other criminal organisation of any kind, but agrees to cooperate with criminal justice authorites, particularly by giving testimony about a criminal association. The concept of

Justice Collaborators is to open all possibilities especially in certain cases, to reduce the sentence of an offender who provide substantial cooperation in the investigation or prosecution of a crime.

In Mahkamah Agung Circular Letter (SEMA) number 4 of 2011 regarding Treatment for Whistleblowers and Justice Collaborators in Certain

Criminal Actions. There are guidelines for determining someone as Justice

Collaborator, as follows:

a. The concerned is one of the perpetrators or has taken part in certain

criminal offenses, admitted his / her crime, not the main actor in the crime

and testified as witness in court hearing.

b. Public prosecutor in its lawsuit alleges that the concerned person has

given a very significant information and evidence so that the public

prosecutor may disclose the offense effectively, revealing other actors who

have greater role and / or return the assets / results of a crime.

An inmate whom apply for parole must first be declared as a cooperating witness (justice collaborator), and it has to be shown by a written statement made by law enforcement agency as specified in Article 43B in PP 99/2012.

On June 30, 2012, the Directorate General of Penetintiary have sent letters to the KPK to ask for a recommendation of Siti Hartati Murdaya parole application number PAS-PK.01.05.06-238 , 30 June 2014. However the letter of recommendation letter was given its response on 12 August 2014 which states that the KPK can not issue a letter of recommendation upon the parole application of the inmate concerned, Hartati Murdaya. KPK states that it was because the Public

Prosecutor never declared Hartati Murdaya as justice collaborator. The respond of recomendation letter have gone beyond its time limitation, which is 12 days from the receipt of recommendation request. Thus, according to Article 43 B paragraph

4, the Directorate General submitted a memo to the related Ministry (Ministry of

Law and Human Rights) upon the parole granted.

By studying and analyzing the decision the Ministerial Decree of Law and

Human Right of the Republic of Indonesia Number M.HH-26.PK.01.05.06 Year

2014 regarding the parole granted by the Minister of Law and Human Rights of the Republic of Indonesia, Amir Syamsudin sets out in Jakarta on 22 July 2014 for Graft Inmate, Siti Hartati Murdaya, the parole released was conducted in

69 accordance with Government Regulation No. 99 of 2012 on Requirements and

Procedures to Implement the Rights of Prisoners and substantive and administrative and fulfill the requirements that are outlined in the Regulation of the Minister of Law and Human Rights No. M.01.PK.04-10 of 2007.

4.3 Parole released of Hartati Murdaya from the objective of punishment

4.3.1 The integrative objective of punishment

Punishment is an attempt to restore inmates to repent his crime and reconnect into the livelihood, law-abiding person in the community as well as respecting the moral, social, and religious values, in order to achieve a society that is safe, orderly, and peaceful. Roeslan Saleh 72 said that every act which society may perceived as an act that is forbidden requires an emphasis on legal sense from community, so that an offender who commits a criminal offense or violate any law deserve to receive the sanction as the consequences of his actions.

Punishment is closely related to the life of someone in the community, especially when it involve the interest of the most valuable objects for social life which is freedom.

Nowadays, it has been generally accepted that the State punish the offender with intermediaries from the tools of law. Government in carrying out the criminal law is always faced with a condition that is described as follows: The government should ensure the freedom of the individual, ensure that the basic fundamental rights of freedom respected. On the contrary government / State

72 Roeslan Saleh, Stelsel Pidana Indonesia, Jakarta: Aksara Baru, 1983, pg 12

70 punish the individual, and thus make the individual imprisoned. In short, on one hand the government / State try to defend and protect a person against aggravation from another individual, while on the other hand they also attack another individual whom disrupting other person73.

Every act of crimes can certainly lead to various kinds of damages, whether to an individual or social. While on the other hand, Indonesia with social and cultural values which based on Pancasila also prioritizes harmony and balance toward the life of individual as well as the community. Therefore, from the theories of punishment that has been in the mentioned above, the integrative theory of punishment is the most appropriate to be applied in Indonesia.

The integrative theory of punishment that combines propositions of the two previous theories, contains not only the framework of objectives that intended to take people's sense of justice into account, but also to analyze the relationship of reciprocity between the offenders and the victims. According to the Integrative theory, the objective of punishment aside from retaliation of the offender was also emphasized to construct social defense by creating an order. This integrative theory is more appropriate to be used rather than those two previous theories, that appeared to have weakness as follows:74

1. The weakness from absolute (retributive) theory is that, it tends to create

injustice because in the sentencing process, they need to consider the

73 Sudarto, Hukum dan Hukum Pidana, hal 152 dalam Analisis Terhadap Keberadaan Pidana Minimum Khusus Dalam Rancangan KUHP dan Peraturan Perundang-Undangan diluar KUHP, Y.A Nasution, pg 75 74 Usman, Koeswadji in Jurnal Ilmu Hukum, Analisis Perkembangan Teori Hukum Pidana, accessed via download.portalgaruda.org/article.php?article=12060&val=882, on 10/01/2015, 0:58, WIB pg 73

available evidence and retaliation is not necessarily implemented by the

state.

2. The weakness form Relative theory arise in a sense that it can lead to

injustice because the misdemeanor could be sentenced in severe

punishment. The community satisfaction is neglected, if the aim is to fix

the social damages and to prevent the crime by threaten the potential

criminal is difficult to be implemented.

Thus, criminal essentially is a protection towards society and a retaliation against unlawful act. In this context, Muladi made a combinations which considered suitable within approaches of sociological, ideological, and juridical philosophy of Indonesia with the basic assumption that crime is the disruption of balance and harmony in the life of society which resulted individual and social damages. Therefore, the purpose of punishment is mainly to improve individual and social damages.

It is composed with a set of goals that must be met, with regard that the center of purpose, is casuistry. The components of this objective of punishment is; (1) Prevention (special and general) (2) social defense; (3) maintain the solidarity of the community, and (4) balancing.

Moreover, Barda Nawawi Arief also made a concept of the objective of punishment, which departed from an equilibrium of two (2) main objectives, namely the social defense and development of the offenders. Whereas, the views of the objective of punishment as one means of criminal and social policy were based from an effort to emphasize the protection of society, or community-driven.

Nonetheless, in its application, the punishment is expected to be selective, careful, and well-oriented to the protection / interests of offenders75.

This integrative objective of punishment is actually close to the development theory of correctional institution (penitentiary) and its system, which is set forth through Law No. 12 of 1995 on Correctional Institution. For Indonesia, which based on Pancasila, a notion about the function of punishment is no longer about the incarceration but an attempt of rehabilitation and reintegrating the offender into the community76.

This view was reinforced from the development of correctional institution system, which was highly emphasizing retaliation with deterrence, but gradually changed with the concept of rehabilitation and social reintegration so that inmates realized their mistake, securing a place for him in the normally functioning society, and reintegrate as a responsible community member toward themselves, family, and their environment77.

In the philosophical realm, correctional system show its commitment in an effort to change the condition of inmates through coaching process and humane treatment through the protection of the rights of the convicted person. This commitment is explicitly stated in Article 5 of Law on Correctional Institution, where it states that the construction system of correctional institution is implemented based on the principle of; the bases of protection, guidance, equal treatment, education service, human rights and human dignity honor, the offender

75 Barda Nawawi Arief, Op.cit,pg 88-89 76 General explanations on Law no 12 year 1995 on Corrections 77 Loc, Cit

/ inmate shall suffer punishment only in the form of loss or freedom, and ensuring the right to stay in touch with family and certain people.

This concept of Correctional system is strongly associated with the urges to implement a more humane punishment and protect the fundamental rights of inmates and no longer use an incarceration system that emphasizes punitive sentiment or vengeance (retributive).

4.3.2 Hartati Murdaya's parole released and its relevance to the integrative objective of punishment

To find out how far and in what extent the parole release of Hartati Murdaya and its relevance to the objective of punishment, the following will describe the meaning of each objectives of punishment which brought by legal scholars. The relevance of Hartati Murdaya parole release towards those objectives of punishment would be elaborate afterwards.

1. The objective punishment is prevention (special and general)

One of the main objectives of punishment toward the offender is to

prevent or deter them to repeat its crime, and also seeks to prevent crime

from potential lawbreakers by bolstering the law-abidingness of the rest of

the population. This kind of prevention has two aspects, namely the

individual and general.

In general prevention aspect, the principal purpose of punishment

to be achived is prevention indicated for public, to all of people from

committing violations against the order of society. Meanwhile, according

to the theory of special prevention, the goal is to prevent the offender to

repeat its crime and restrain the potential offender to commit a crime that

might have planned.

2. The objective of punishment is social defense

Social defense as the objective of punishment has a broader dimension,

because fundamentally, it is the goal of all of objective of punishment. As

a tool of social defense, punishment contains four aspects that will

determine the objective of punishment, namely78:

a. By the view of social defense toward the anti-social act that harm and

endanger the public, the resulting notion of objective of punishment is

to overcoming crimes.

b. By the view of social defense toward the danger of the offender,

resulting notion of objective of punishment is to fix the offender

c. Another aspect from social defense is the need to maintain a balance or

harmony of the various interests and values that are disrupted by

crimes. Thus, in this context the objective is to maintain or restore the

balance of society.

3. The objective of punishment is balancing

In retributive theory, there is a belief that criminal must pay back

due to the actions that have been performed. This theory asummes every

one, under any circumstances are capable of self-determination. This

provides justification for vengeance. But during the development, as a

result of the influence from social sciences, the vengeance itself get a

different connotation from its original meaning. The classical notion of

78 Sudarto, Kapita Selekta Hukum Pidana: Masalah Penghukuman dan Gagasan Pemasyarakatan. Bandung : Alumni, 1981, pg 52

retaliation in the sense of legalized vengeance was shifted into the notion

which Hall William 79 declared as the existence of proportionality between

liability as individual and offender. In nowadays era, the adherents of

classical retaliation (vengeance) in the sense of punishment must be taken

solely for justice, is no longer exist, but instead it was deemed as a

restriction in the sense that there must be a balance between action and

criminal 80.

Of the overall view, the conclusion can be drawn that there are two essential elements in objectives of punishment, which is the offender and society

(State) and most of it converge on two interest, namely the protection of society and treatment for the offenders.

Siti Hartati Murdaya, as President Director of PT. Hardaya Inti Plantations

(PT HIP) and PT Cipta Cakra Murdaya (PT CCM) was proved legally and convincingly guilty of corruption by providing District Head of Buol District

Amran Batalipu with US$500,000 in bribes to obtain licenses for 4.500 hectares of oil palm plantation. Hartati has been proven guilty of violating Article 5 of the anti-Corruption Law and Article 55 of the Criminal Code and was received a jail sentence of 32 months and a US$15,000 fine. She filed an appeal to Jakarta High

Court, but the Jakarta High Court upheld the verdict of the Jakarta Corruption

Court. With that decision, Hartati was ordered to remain in correctional institution. The public then have not heard the news about Hartati for the long time, but all of sudden the news of Hartati granted parole sparked public upheaval

79Ibid, pg 77 80 Ibid, pg 80

76 because the parole release to her, which is a graft convict have considered wounded society sense of justice.

Whereas, people know that corruption is global phenomenon, in which every society in the world had to deal with though severity varies from one country to another. Moreover, the causes, forms, and their impact arouse multi- dimentional damages. Corruption damaging for the simple reason that important decisions are determined by ulterior motives, regardless of the consequences for the wider community81. The decision to grant parole to Hartati Murdaya as graft convict raises the pro and contra in the middle of the community. This is because corruption is considered by some as one of extraordinary crime that should take extraordinary measure from state party. However, the parole release has led to another another perception of corruption as one of an exceptional criminal offense. Apart from that, it should be understood that the offenders are also entitled and deserve justice that equitable with the crimes they have committed, including to graft inmates.

When an inmates undergoing a sentence imposed by the court, their rights as citizens would be restrained. As stipulated in Article 1 (7) of Act No. 12 In

1995 on Correctional, the prisoner are convicts serving the punishment of his loss of freedom in correctional institutions. In spite of all that, there are rights that are still being protected in Indonesian correctional institution. Suharjo, as a pioneer of the idea of the correctional system establishes the basis of the treatment of inmates, namely: (1) every person is a human being and should be treated as a

81 Berihun Adugna Gebeye, Corruption and Human Rights: Exploring the Relationship accessed via http://www.du.edu/korbel/hrhw/workingpapers/2012/70-gebeye-2012.pdf on 10 December 2014, 13:15 WIB

77 human, (2) every man is a social creature, no one lives outside the community, and (3) Inmates shall suffer punishment only in the form of loss of freedom, and therefore they should develop their skills so that they may play an active roll in national development.

One of the prisoners' rights are protected in Article 14 letter k on Law of

Correctional. The articles stipulated the rights of a person's as an inmate, that they are entitled to parole. Parole is an early discharge after undergoing two-thirds of a prison sentence which must amount to at least nine months. Parole, is a development process of inmates that focuses on reintegration with the community or society-based. Soedjono Dirdjosisworo stated that inmates, other as an individual and part of society, in its treatment of development must not be alienated, but rather should be integrated into the society82 and thus, each of them are eligible for parole.

As stated in Article 4 of the Ministrial Regulation No. M.01.PK.04-10 of

2007 on Requirements and Procedures for Granting Assimilation, Parole, and

Furlough the objectives and functions of Parole are:

4. Generates motivation or encouragement to Inmates and young

offenders towards the achievement of development goals;

5. Provide opportunities for Inmates and Young Offender for education

and skills in order to prepare to live independently in the community

after release from a sentence;

82 Soedjono Dirdjosisworo, Sejarah dan Azas-Azas Penologi (Pemasyarakatan), CV Armico, Bandung, 1984 pg 135

6. Encouraging people to participate actively in the administration of

Correctional Institution.

In sum, the core of Parole is a treatment / development toward inmates with the involvement of community. Parole is very much related with the concept of social reintegration. It is in the mentioned by Snarr83, which confirms that reintegration requires involvement or participation of community institutions. In this case the reintegration departs from the premise, that if someone is able to engage in major social institutions as well as in any community activities, it will increase the opportunities for the emergence of a law-abiding behavior.

In accordance with the direction of the objectives of punishment within the framework of correctional system which also resembled significance to integrative objectives of punishment, the author will analyze whether the parole release of graft inmate, Hartati Murdaya was given in accordance with the objectives of the integrative theory of punishment.

A. Parole release of Hartati Murdaya toward the objective of punishment in

terms of special and general preventive

Special prevention was directed to the offender, namely to prevent the offender to repeat the crime that he has committed. Thus, Parole release of Hartati

Murdaya is already appropriate upon this context. Hartati Murdaya already knows and suffered the punishment imposed because of the crime she has committed, namely in the form of her deprivation of liberty. Here, we can found the function

83 Snarr in Sistem Pemasyarakatan Indonesia, accessed via accessed via http://ditjenpp.kemenkumham.go.id/arsip/bn/2009/bn5-2009-2.pdf, on 12 December 2014 15:12

79 of fixing and educating the inmate, which is expressed by the following statement from notable legal scholar Andenaes84 as follows;

“ Once a person has been actually punished he still under the threat of the law, his motivation is more complex than before. He now knows what it is like to be prosecuted and punished, and this may influence him in various ways. “

Furthermore, Roger Hood and Richard Sparks give an example that for people of the middle and upper classes, the problem of stigma and other consequences caused by the criminal is considered more important than the crime itself. It is also felt by Hartati, where her status as graft inmate resulting revokation from her current position as Chairwoman of the Indonesian Buddhist

Representative (Walubi) and deactived from the Board of Trustess of the

Democratic Party85.

While in view from the side of general prevention, the parole release of

Hartati Murdaya is not quite appropriate to be given. In connection with the general prevention, then according to John Andenaes86, there are three forms of influence in terms of general prevention, namely:

1. Effect of prevention

2. Effect to reinforce moral prohibitions

3. Effect to encourage the habit of law-abiding behavior.

84 Muladi and Barda Nawawi Arief, Op.cit, pg 113 85 Demokrat Keluarkan Surat Penonaktifan Hartati , accessed via, http://nasional.kompas.com/read/2012/08/13/14031093/Demokrat.Keluarkan.Surat.Penonaktif an.Hartati, on 31 December 2014, on 6:10 WIB 86 Muladi and Barda Nawawi Arief, Op.cit, pg 116

The influence of criminal law sanctions against the acts of persons other than the offender to this day is unknown the effective intensity. However, it is to be noted that the mere threat of punishment would not make much sense if it is not accompanied by the imposition of severe punishment anyway87.

Hartati Murdaya, whom found guilty of committing corruption was only sentenced 2 (two) years and 8 (eight) months in prison, lower than the 5 (five) years and 4 (four) months demand of the public prosecutor. Not to mention the special favor of Parole that is easily granted solely because she met the administrative and substantive requirements, making a special case / extraordinary measures of handling corruption cases become non existent.

It can reduce the effects that arise in criminal prosecution against the future potential offenders, that this kind of punishment upon the offender would not restrain other community members to commit a similar or other kind of crimes. With this Parole granted, people will tend to look at how a graft convict can swiftly released from criminal charged against her, giving the impression that corruption is something insignificant.

B. Parole release of Hartati Murdaya toward the objective of punishment in

terms of social defene

Parole release is a period of society-based guidance after undergone a criminal imprisonment in correctional institution. With this kind of guidance, the corrections system can still supervise the inmates, providing assistance upon their reintegration to the community, providing a sustainable program, and monitor the

87 Sudarto, Op cit, pg 83

81 progress of the adjustment of their reintegration outside correctional, and also look after for the inmates who return to prison if public safety is threatened. Upon the administration of parole, correctional institutions perform a number of functions88 such as maintaining / managing information under the jurisdiction of each prisoner in correctional institution, maintain / manage records every prisoner on parole, guiding inmate on parole, investigations relating to alleged violations of parole.

The decision upon granting parole for inmates were first going through a serious examination. The examination conducted by the Parole Board. In

Indonesia, parole was examined by Correctional Observer Team (TPP/DPP). Cole explains the basic of decisions taken relating to the disposition of parole, namely:

1) Assessment of institutional behavior (personality and self-reliance)

2) Evaluation of the physchological changes

3) Prediction of the public reaction

In Indonesia, the function of Parole Board conducted by Correctional

Observer Team (TPP). They are responsible for assisting Balai Pemasyarakatan in implementing guidance for correctional clients (inmates). The details of their duty is carrying out a hearing session aimed to (1) composing guidance program at initiation stage, the advanced stages, and final stages (2) discuss the case of a particular client in order to determine the guidance program (3) notifying the

88 Standar Layanan Pemasyarakatan, accessed via http://ditjenpp.kemenkumham.go.id/arsip/bn/2009/bn5-2009-2.pdf on 1 January 2015, 20:00 WIB

82 program plan to Head of Balai Pemasyarakatan and (4) conducted an assessment of the guidance program implementation89.

Assesment of implementation of guidance program by the Parole Board/

Observer team is to ensure that inmates are ready to reintegrate into the middle of the community. In contrast to other inmates, whom after serving their sentence could get their expiration, Parole release ensure inmates remain in control supervision and thus provide better protection fot the community upon the risk of recidivism, which seems very consistent with the objectives of punishment where the punishment given to the offenders intended to protect the public against the possible dangers. By the efforts of reintegration of criminals through the Parole as a form of guidance, the risk of danger can be reduced.

Moreoever, the Parole release allows her continue his usual life obligations such as his work, meeting family obligations, participating in recreational activities and any other pursuits that concern her in the community just like any other ordinary society members.

However, the objective of punishment of social defense were not only as in a sense of security, but also in terms of protection toward the sense of justice. Most people assess the decision to grant Hartati Murdaya's parole ignores the values of justice that is necessarily perceived by the public. This view, aside from the light sentenced result was also due to the inexsistence of a letter of recommendation as a justice collaborator from the KPK.

89 Loc.cit

C. Parole release of Hartati Murdaya toward the objective of punishment in

terms of social balancing.

Some people were disappointed due to the parole release of Hartati Murdaya.

Not to mention that the crime she has committed was corruption, which by some perceived to be an extra ordinary crime. Stanly E. Grupp90 stated that the reaction in the form of providing decent suffering for criminals is a matter that is expected to maintain order, and it was also a collective statement that is natural to the crime. However, the suffering associated by punishment should be restricted within the most narrow and punishment must contribute to the process of reintegration of inmates to society.

Parole release given to Hartati Murdaya was more inclined if it is seen by correctional system philosophy, which emphasized on treatment of offenders in terms of development, maintenance, and supervision. In the document of

Blueprint of Correctional Sytem Reform Implementation in 200991, chapter II affirmed that social reintegration was the core point which underlie the implementation of correctional system.

Philosophically, Corrections is a criminal system that has left the philosophy of retributive (retaliation), deterrence, and resocialization. In other words, punishment is not intended to make the suffering as a form of vangeance, it is not inteded to deter the offender with suffering, nor assumes the offender as someone with less socialization. Correctional system is in line with the philosophy of social

90 Muladi, Op.Cit, pg 92 91 Cetak Biru Pembaharuan Pelaksanaan Sistem Pemasyarakatan, accesed via, http://icjr.or.id/cetak-biru-pembaharuan-pelaksanaan-sistem-pemasyarakatan/, on 1 January 2015, 21:09 WIB

84 reintegration that assumes crime as a conflict between the offender and the society. Hence, punishment is intended to balancing and recover the conflict or to put it simply, to reintegrates the offender with it society.

Within the aforementioned, the author argues that the decision to grant Parole to Hartati Murdaya is already appropriate with the purpose of integrative objectives of punishment in context of the interest of offender. The obtained parole was more directed to restore her life as an offender and prepare herself as making it easier to integrate into society as a whole. The balancing, in this context, does not necessarily mean that she should be punish with the most severe kind of punishment. It was once delivered by Cesare Beccaria that the main reason of punishment is to ensure the continuance and survival of the community, and to prevent others from commiting crimes. The balancing will come not from a severe punishment, but from the most appropriate one.

Moreoever, the consequences caused by her criminal act of corruption has been considered to educate her and the guidance that she have been through inside the penitentiary has become an adequate pre-condition to reintegrate into society, especially because the correctional system as the basis of parole has left the philosophy of retaliation and deterrence. Hence, she deserves the parole.

On the other hand, in the relation of social defense especially toward the sense of justice, the decision to grant parole toward Hartati Murdaya betrays people's sense of justice. The parole could be swiftly given to a graft inmate, and thus has impoverished the extraordinary measure upon treatment of corruption.

4.2.3 Parole limitation alternative for graft inmates

Although parole is a fundamental right of every inmates, public's expectations of sentencing towards graft inmates shall also need to be understood. Society are still cling on to different treatment for graft inmate Parole grated to Hartati

Murdaya has eroded community's sense of justice because there is a gap arise between the decision to grant parole and public's expectations that there would be a different treatment for graft inmates. The different treatment, or rather, an extra ordnary measure could actually be done through the mechanism of affidavit / letter of recommendation as a justice collaborator for inmate whom applied for parole. In addition, a different treatment toward graft inmate can actually be done through judge's decision in the form of additional sentence, which outlined the reduction or elimination of parole as a right of inmates.

Therefore, aside from making restrictions on its operational regulation, there is an alternative-creative efforts that can be given through judicial mechanism, which is an attempt to provide additional punishment for graft inmate. This would be outlined on the judge's decision in the form of reduction / revocation of parole as one of inmate rights.

Deprivation of certain rights is one example of additional punishments set forth in the Criminal Code. Although the formulation of the articles in the

Criminal Code restricting the kind of rights that might revoked by judge's decision, the judge is actually at the utmost form of liberty to perform legal discovery (rechtsvinding) 92 because basically, the law does not solely exist in the

92 This view comes from the notion of Interessenjurisprudenz view of legal discovery. In this sense, Ahmad Ali stated that judges may deviate from the law for the benefit of society.

86 form of norm (legislation) but it can also lives as the principles and behavior in society.

Therefore, by the fact that the law contained in legislation have not been able to address the needs of society, in this case the public's sesen of justice toward graft inmate which is one kind of extraordinary crime, the judge can use extensive interpretation upon corruption and its nature as an extra ordinary crime and thus the judge can revoked parole as the rights of inmate in his decision.

5. CONCLUDING CHAPTER

5.1 Conclusion

Based on the aforementioned description and analyis, it can be concluded as follows:

1. Based on the analysis conducted by the author toward the Ministerial

Decree of Law and Human Right of the Republic of Indonesia Number

M.HH-26.PK.01.05.06 Year 2014 on Parole by the Minister of Law and

Human Rights of the Republic of Indonesia, Amir Syamsudin set forth in

Jakarta on 22 July 2014 to graft inmate, Siti Hartati Murdaya, are in

accordance with the requirements of parole in Government Reulation No.

99 year 2012 on Requirements and Procedures to Implement the Rights of

Prisoners as well as 4. Ministerial Regulation No. M.01.PK.04-10 of 2007

on Requirements and Procedures for Granting Assimilation, Conditional

Discharge, Parole, and Furlough. The absence of an affidavit as a justice

collaborator did not prevent her to get her parole release as a right of

inmate.

2. By the view of objective of punishment, the decision to grant Parole to

Hartati Murdaya as a graft inmate is already appropriate in terms of

treatment of the offender. However, by the context of social defense, the

ministry's decision to grant parole affronted people sense of justice. Such

decision makes extraordinary measures of handling corruption cases

become non existent and it was also contradicted to the spirit and efforts to

eradicate corruption in Indonesia. Despite of all that, the author considered

that a graft inmate is still entitled to get Parole release Because the core of

the Parole departed from the correctional system, that is philosophically no

longer uses the principle of retalitation and deterrence but rather focuses

on the implementation toward guidance of inmates in framed of human

rights. Neverthelss, the Parole should actually be given through a rigorous

mechanism.

5.2 Suggestions

1. Parole is still acceptable to be given to graft inmates. However, it needs

more detailed formulation towards it operational regulation. To this day,

there are different interpretations arised between the Directorate General

of Penetentiary with the KPK. In which, the Directorate General argued

that parole could be granted because Hartati Murdaya has complete its

administrative and substantive requirements while the KPK believes

parole decision of Hartati Murdaya is legally defective because she was

not considered as a justice collaborator. Therefore, the regulation of

granting parole in the future should be reformed. An affidavit / letter of

recommendation as justice collaborator from the KPK must be obtained as

a prerequisite to apply parole. The recommendation letter must be used as

a consent to grant parole. Without the letter of recommendation, the

application of parole should be rejected and thus, the concerned inmate is

not entitled to get the parole released.

2. There should be a possibility of the emergence of an additional sentence

such as the reduction or elimination of parole as right of inmates which

would be outlined in the judge's ruling. This would appear as an effort of

extraordinary measure of corruption which indicates that corruption has

89 different treatment compared to any other crimes. Hence, the government shall do some recodification on the upcoming penal code so that the judge would have a legal umbrella to perform additional penalty by its decision in form of revocation of parole.

REFFERENCES

LEGISLATIONS

Constitution 1945 of Republic of Indonesia Indonesian Penal Code Law No. 12 of 1995 on Corrections Law No. 31 of 1999 on the Eradication of Criminal Acts of Corruption Government Regulation No 99 of 2012 on Requirements and Procedures to Implement the Rights of Prisoners Ministerial Decree from the Law and Human Rights Ministry No. M.HH-26.PK.01.05.06 Year 2014 Regulation of the Minister of Law and Human Rights No. M.01.PK.04-10 of 2007 High Court Decision Number 13/PID/TPK/2013/PT.DKI, 24 April 2013

BOOKS Andi Hamzah, Korupsi Dalam Pengelolaan Proyek, (Jakarta: Akademik Pressindo, 1991) Chalres L. Newman, Sourcebook on probation, parole, and pardons, (Springfield : Charles &Thomas, 1968) Denny Indrayana, Negeri para mafioso: hukum di sarang koruptor, (Jakarta : Kompas, 2008) Herbert L. Packer, The Limits of the Criminal Sanction, (California: Stanford University Press,1968) Joan Petersilia, When Prisoners Come Home, (Canada : Oxford University Press: 2003) Mitchel P. Roth, Prison and prison systems : a global encyclopedia, (Greenwood: Greeenword Press, 2006) Michael D. Maltz, Recidivism, (Chicago: Department of Criminal Justice and Department of Information and Decision Sciences University of Illonois, 2001) Tim Penulis Buku Pendidikan Anti Korupsi, Pendidikan Anti Korupsi untuk Perguruan Tinggi, (Jakarta : Kemendikbud, 2011) Masfar Ismail, Pembebasan Bersyarat di Indonesia , (Jakarta:Djembatan, 1968) Muladi, Lembaga Pidana Bersyarat, (Bandung:Alumni, 1985) Muladi, Barda Nawawi, Teori-teori dan kebijakan pidana, (Bandung: Alumni, 1984) Marwan Effendy, Pemberantasan Korupsi dan Good Governance, (Jakarta: Timpani, 2010) Muladi, Barda Nawawi Arief, Bunga rampai hukum pidana, (Bandung : Alumni, 2007) Peter Mahmud Marzuki, Penelitian Hukum, (Jakarta: Kencana, 2008)

Rodney J. Henningsen, Probation and Parole (HBJ Criminal justice series),

Boston: Houghton Mifflin Harcourt, 1981)

Roeslan Saleh, Stelsel Pidana Indonesia, (Jakarta: Aksara Baru, 1983)

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Romli Artasasmita, Korupsi, Good Governance dan Komisi Anti Korupsi di

Indonesia, (Jakarta: Badan Pembinaan Hukum Nasional Departemen Kehakiman dan HAM RI)

Saldi Isra dan Eddy O.S Hiariej, Perspektif Hukum Pemberantasan Korupsi di

Indonesia, Korupsi Mengorupsi Indonesia: Sebab, Akibat dan Prospek Pemberantasan, (Jakarta: Gramedia Pustaka Umum, 2009)

Soedjono Dirdjosisworo, Sejarah dan Azas-Azas Penologi (Pemasyarakatan), (CV Armico: Bandung, 1984)

Soerjono Soekanto and Sri Mamudji, Penelitian Hukum Normatif Suatu Tinjauan Singkat, (Jakarta: Rajawali Press, 1985) Sudarto, Kapita Selekta Hukum Pidana: Masalah Penghukuman dan Gagasan Pemasyarakatan, (Bandung : Alumni, 2006) Sudarto, Hukum dan Hukum Pidana, (Bandung : Alumni, 2007) Transparency International, Makalah Seminar Internasional, Praktik-praktik yang Baik Dalam Memerangi Korupsi di Asia (Jakarta: Transparency International Indonesia: 2003)

JOURNALS Abdul Ficar Hadjar, Kendala dan Tantangan Aparat Penegak Hukum Dalam Konteks Pemberantasan Korupsi, http://ww.reformasihukum.org/ID/file Berihun Adugna Gebeye, Corruption and Human Rights: Exploring the Relationship, http://www.du.edu/korbel/hrhw/workingpapers/2012/70-gebeye-2012.pdf International Conference Against Corruption, Declaration of the 8th International Conference Against Corruption Institute for Criminal Justice Reform, Cetak Biru Pembaharuan Pelaksanaan Sistem Pemasyarakatan, http://icjr.or.id/cetak-biru-pembaharuan-pelaksanaan- sistem-pemasyarakatan Joan Petersilia, PH.D, Parole and Prison Reentry in the United States, http://www.appanet.org/eweb/Resources/PPPSW_2013/docs/su00appa32.pdf, Romli Atmasasmita, A preliminary Study of the Pemasyarakatan System, http://www.aic.gov.au/media_library/publications/proceedings/12/romli.pdf Tim Ditjenpp Kemenkumham, Sistem Pemasyarakatan Indonesia, http://ditjenpp.kemenkumham.go.id/arsip/bn/2009 Tim Ditjenpp Kemenkumham, Standar Layanan Pemasyarakatan,

http://ditjenpp.kemenkumham.go.id/arsip/bn/2009/bn5-2009-2.pdf

Tim Kerja Position Paper Advokasi RUU KUHP Seri #3, Pemidanaan, Pidana

dan Tindakan dalam Rancangan KUHP, http://docs.perpustakaan- elsam.or.id/ruu_kuhp/files/briefing/3.pdf

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Usman Koeswadji, Jurnal Ilmu Hukum: Analisis Perkembangan Teori Hukum

Pidana, download.portalgaruda.org/article.php?article=12060&val=882

INTERNET Aulia Pohan dkk Bebas Bersyarat, accessed via http://www.hukumonline.com/berita/baca/lt4c6e71cd65dbc/aulia-pohan-dkk-bebas- bersyarat Emerson Yuntho, Koordinator Divisi Monitoring Hukum dan Peradilan, Sindo News Release, http://nasional.sindonews.com/read/896958/13/icw-protes-pembebasan- bersyarathartati- Indonesia Investments, Corruption in Indonesia, accessed via http://www.indonesiainvestments.com/business/risks/corruption/item235, Indonesia most corrupt of key Asian nations PERC, http://in.reuters.com/article/2010/03/08/idINIndia-46740620100308, Pembebasan Bersyarat, Peluang Napi yang Sarat Arti, http://www.hukumonline.com/berita/baca/hol17359/pembebasan-bersyarat-peluang-napi- yangsarat-, Tak Sampai Tiga Tahun Hukuman Konglomerat, http://www.hukumonline.com/berita/baca/lt510f7e3bd2632/tak sampai-tiga-tahun-- hukumankonglomerat Nuriman Jayabuana, ICW: 38 Koruptor Bebas Bersyarat pada Era SBY, http://www.tempo.co/read/news/2014/09/08/063605135/ICW-38Koruptor-Bebas- Bersyarat-pada-Era-SBY, Taufik Hidayat, Menkum HAM: Tidak Ada Bebas Bersyarat untuk Paskah accessed via http://news.okezone.com/read/2011/10/31/339 Nita Dian, Profil Hartati Cerdik Mencari Sandaran, http://www.tempo.co/read/news/2012/08/08/078422222/Profil-Hartati-Cerdik-Mencari- Sandaran Demokrat Keluarkan Surat Penonaktifan Hartati , http://nasional.kompas.com/read/2012/08/13/14031093/Demokrat.Keluarkan.Surat.Penon aktifan Hartati,

THESIS Sanusi Husein, Lepas bersyarat dalam sistem hukum dan peradilan pidana di Indonesia, (Universitas Indonesia : T36429)

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APPENDIX

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