Crime & Punishment Indonesia has yet to realize its claim of having moved from a criminalization to a rehabilitation approach
The recent execution of six convicts for drug-related crimes raises profound ethical questions about what constitutes a just and appropriate punishment in light of changing moral and penal norms worldwide.
Following international rebuke and condemnation for the executions on human rights grounds, Indonesian officials and commentators attempted to reframe debate over the death penalty in terms the convicted drug traffickers’ causal responsibility for harms resultant from their criminal acts; many also invoked arguments that the executions upheld the rule of law in Indonesia, a prima facie principle that foreign powers ought accord due respect.
The arguments based only on causal responsibility for drug-related crimes are risable and not strong enough to be considered.
Instead, let’s look at whether the rule of law argument holds up when we examine how drug laws are actually implemented.
The rule of law is a principle of governance in which all persons — as well as the state itself — are accountable to laws, and that those laws are consistent with international human rights norms and standards.
More specifically, the rule of law means, in the words of jurist and legal theorist Eric Posner, “that judges decide cases ‘without respect of persons,’ that is, without considering the social status, attractiveness et cetera, of the parties or their lawyers.”
President Joko Widodo’s anti-drug agenda includes initiatives to establish rehabilitation centers and empower the National Narcotics Board (BNN) to assist in enforcing drug laws and developing standards for prosecutors to determine the difference between a suspected drug user and a trafficker.
The ultimate vision for these powers is the achievement of a Drug Free Society; success in this regard must be qualified by authorities’ obeisance to the rule of law.
But does Joko’s agenda evince a coherent link between controlling drugs and the human rights necessity for drug offenses based to be defined and punished on the basis of rule of law principles?
The supremacy of law is a fundamental to civil rights.
Indonesia has taken a prohibitionist stance toward drugs, on which it declared a war 15 years ago. In empirical terms, drug policy analysts have concluded that this “war on drugs” has failed to achieve its aim of a drug-free society, with serious negative implications for human rights. According to BNN, there were more than 4.2 million drug users in Indonesia last year.
According to Health Ministry data published by UNAIDS, Indonesia is one of the only countries in the Asia-Pacific region with an increasing rate of new HIV infections diagnosed.
With the exception of Papua, where the epidemic is generalized in the population, infections remain concentrated among the key populations at high risk.
Although no longer the source of the majority of new infections since 2007, injecting drug use still accounts for a significant source of newly diagnosed HIV in infections.
Compounding the public health implications for the non-incarcerated population is authorities’ clear inability to control drugs inside prisons — perhaps to an even greater extent than outside.
A 2010 report by the UN’s former special rapporteur on torture, Manfred Nowak, examined 350 Indonesian penal facilities with a combined capacity of 75,000 people. Yet in December 2007, the report found the facilities housed 134,000 people, of which 60,000 had not yet been sentenced. This overcrowding contributes the poor control of drug trafficking in prisons.
Should the new president, then, keep the old-style approach on his agenda?
Setting aside the question of the efficacy of Indonesia’s efforts in its war on drugs, we must consider arguments as to the death penalty’s role in minimizing legal indeterminacy and ensuring the rule of law.
The 2009 Anti-Narcotics Law included from the outset provisions that authorized judges to recommend rehabilitation over imprisonment, but this has, in practice, still not become the predominant approach adopted toward infringers.
Furthermore, regulations for determining a drug user from a drug trafficker — drafted jointly, though years late, by the BNN, the Attorney General and the Ministry of Justice and Human Rights, unveiled only in the past few month and still spottily implemented — rely on arbitrary and quite low thresholds for drug weight, as well as and subjective character assessments by penal and prosecutorial authorities. The regulations also totally eschew the question of drug purity.
Effectively, this has meant that the vast majority of people facing drug charges wind up facing similarly long sentences — except foreigners, who as recent executions show, are disproportionately given death, and well-connected defendants whose attorneys can pull enough strings with prosecutors to get a speedy disposition on their “user versus trafficker” assessment — a procedure that can effectively result in dismissal of their charge.
Indonesia claims to have moved from criminalization to a rehabilitation approach. However, realization of this stated policy premise needs clear and well-designed regulations and laws for drug possession and users’ health treatment that make it easy for authorities to uphold both the rule of law and protect citizens human and civil rights.
Equality before the law will lead to the fair judgment and solutions. Essential to this is the elimination of the stigma that drugs face by law enforcement, as well as in courts and prisons, that impinges in their ability to seek fair access to justice and social services.
It is time for the new administration to challenge the death penalty’s shoddy justification on causal responsibility grounds and instead ensure rule of law in Indonesia that is both enforceable and humane.
Asmin Fransiska is a senior lecturer at Atmajaya University in Jakarta