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Punishing ex-offenders via legislation disregards due process of law, and is given without objective considerations.

Why Indonesia should not bar ex-offenders from running for public office

Gearing up for Indonesia’s elections next year, the General Election Commission (KPU) passed the 2019 Legislative Election Regulation. This prohibits people who had been convicted of corruption, drug trafficking and child sexual violence from running in the election.

According to KPU, these crimes are “extraordinary and have damaging effects to the society”.

These crimes are severe. But, under Indonesia’s often flawed criminal justice system, taking away ex-offenders’ right to run for office by means of regulation could undermine our democracy and preclude a group of people from having a chance to serve the public.

Never-ending punishment

Deprivation of certain rights, including the right to hold public office, is not a new feature in Indonesian criminal law. Under the Criminal Code, a judge can bar a perpetrator of a crime from holding public office as an additional form of punishment.

But, in addition to the Criminal Code, a number of laws also bar ex-offenders from working in the public sector. Several laws in Indonesia bar convicted criminals from serving as police officers, judges, prosecutors, judicial commissioners, or other “government-related” positions, even as legal advocates.

As for legislators, the 2008 Law on Legislative Election requires lawmakers to never have been convicted of a crime that carries a penalty of more than five years in prison.

These laws mean that even though someone has already been sentenced by a judge for their crime and served that sentence, the state continues to punish the person by taking away certain civil rights. Punishing ex-offenders via legislation disregards due process of law, and is given without objective considerations.

Constitutional Court ruling

In 2009 the Constitutional Court gave a decision on a review of the Legislative Election Law that was requested by Robertus, who could not run in the 2009 legislative election in West Sumatra because he had been sentenced to nine years and eight months in prison in 1976 for violent theft.

Reviewing Robertus’s case, the court ruled that ex-offenders deserved a right to be elected to public office under certain conditions:

  1. they have to wait five years after their release before running
  2. they must announce to the public prior to their campaign that they were convicted criminals
  3. they are not repeat offenders or recidivists.

The court only decided on the right to run for elected positions (lawmakers, president, local leaders) where the public has the power to vote candidates in or out. Ex-offenders still could not serve in appointed positions such as a cabinet minister, a commissioner, or expert staff.

With this year’s legislative election regulation, the KPU is creating exceptions to the Constitutional Court decision for corruption, child sexual violence and drug trafficking.

Flawed criminal justice system

The KPU ruling is problematic because our criminal justice system is imperfect and often carried out unfairly.

Stealing or misappropriating money for personal profit is wrong and can impact the country’s development. But a number of people have to bear the status of being a corruptor due to disjointed legislation that conflates state losses and company losses. For instance, a former director of state-owned airline Merpati, Hotasi Nababan, was sentenced to prison for a business judgment that went awry and was deemed to cause state losses.

Child sexual violence sounds irredeemably wrong when we imagine an adult taking advantage of their power over a helpless child. But often in Indonesia those who are convicted of child sexual violence are children themselves. They date and have consensual sex. And the parent, often of the girl, who finds out about the sexual relationship reports the boy to the police. The boy then gets convicted for exploring his sexuality with his girlfriend and carries that with him for the rest of his life.

And, lastly, we have the case of drug trafficking. Many drug users who should be rehabilitated are given a label drug trafficker by a judge because the very vague prohibitions on possession of drugs under the Narcotics Law mean a drug user could be categorised as a drug trafficker.

Helping ex-offenders re-enter society

Legal expert Anthony C. Thompson argues that the government and legal community should provide sufficient tools to help ex-offenders re-enter their communities. While the government could provide re-integration programmes, lawyers, courts and law schools could collaborate to offer innovative and non-conventional assistance with such programmes. With these interventions, ex-offenders will have better prospects of not going back to the criminal circles and can reinvent themselves as members of society.

Removing an ex-felon’s right to hold public office is the reverse of the intervention that Thompson proposes. And it will result in Indonesia potentially precluding a large number of people – there are more than 110,000 people in Indonesian prisons – from becoming productive members of society.

Take the example of Frank William Abagnale Jr., an infamous conman in the 1960s who was sentenced to five years for writing a total of US$2.5 million in fraudulent cheques in 26 countries, and whose life was turned into a film starring Hollywood actor Leonardo DiCaprio.

Instead of alienating him from government-related affairs, the US government offered him a job to advise authorities in fraud-related cases. Later on, he founded a fraud-consulting firm that was designed to assist stakeholders in security and fraud cases. Abagnale’s story is evidence that the state should keep the doors open for ex-offenders to contribute to society.

Towards a just and democractic society

The state has power to govern people, including the power to restrict ex-offenders’ right to hold public offices.

But, instead of creating laws that restrict the rights of their subjects – in this case, ex-offenders – the best way to put all interests in equal place is by using judicial process. Let the judge examine facts, connect the dots between theories and cases, and decide whether it is good or not to expunge the offender’s right to hold office.

More importantly, the judge also needs to explicitly mention the time limit during which ex-offenders cannot exercise those particular rights. That mechanism perhaps will put justice at its noble table. In the end, the state should show more confidence in its citizens to choose their own representatives, whether they were a criminal or not.

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