Legal Literacy - In the Indonesian legal system, the President has special rights called prerogative rights, including the granting of amnesty and abolition. Although often mentioned together, they have different meanings and legal consequences. Amnesty is the pardon or elimination of all legal consequences of a criminal act against a particular criminal act or group of people. In other words, an act that was originally considered a criminal act is considered to have never happened, and the legal status of the person who receives it is fully restored. Abolition is the right to stop the investigation or criminal prosecution of a person. When abolition is granted, legal cases that are ongoing or about to begin against that person are permanently terminated. The main legal basis for both of these rights is Article 14 paragraph (2) of the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945), which reads:
The President grants amnesty and abolition with due regard to the considerations of the House of Representatives.

Main Differences with Clemency

Amnesty and abolition are often juxtaposed with clemency, but the three have fundamental differences:
  • Focus: Amnesty focuses on the act (removing the criminal status of an act), while abolition and clemency focus on the person. Abolition stops prosecution process, while clemency is forgiveness or commutation punishment that has been decided by the court.
  • Initiative: Amnesty and abolition are granted on the President's initiative in the interests of the state, although they may be proposed by other parties. In contrast, clemency must be requested first by the convict or their family.

Evolution of Granting Rules

The mechanism for granting amnesty and abolition has changed. Prior to the amendment of the 1945 Constitution, the rules referred to Emergency Law No. 11 of 1954. In the law, the President grants amnesty and abolition after receiving written advice from the Supreme Court (MA). However, post-amendment, the 1945 Constitution explicitly states that the President must consider the considerations of the House of Representatives (DPR), which strengthens the political aspect in this decision-making.

Urgency and Purpose of Prerogative Rights

The granting of amnesty and abolition is not merely a legal decision, but also a strategic political decision. The urgency of its use often arises from the need to maintain broader national interests. This prerogative right serves as an instrument to:
  • Achieve national reconciliation after a political or social conflict has occurred.
  • Maintaining political and security stability country.
  • Resolving politically sensitive cases where pure law enforcement may not provide the best solution.
Basically, this right is in line with the concept of prerogative, which is the power to act for the public good outside the existing framework of rules (the power of doing public good without a rule). This is a positive authority used by the President to achieve substantial justice and greater public benefit.