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Indonesia criminal code overhaul a step backwards for drug policy
Al Jezeera - March 30, 2018
Proposed revisions to the country's criminal code promote harsh penalties for the use and possession of narcotics – including society's ultimate sanction, the death penalty – instead of a health-oriented approach. Rather than enabling a safer, healthier future for the world's fourth largest population, the changes guarantee a surge in prison overcrowding, inflated public health costs, decreased access to health care, and increased drug trafficking, availability, and misuse.
The current criminal code (KUHP) is nearly identical to the penal code issued by the Dutch colonial authorities in 1918, which was retained when Indonesia gained independence in 1945. Its long-overdue revamp, which is in the final stages of deliberation in the House of Representatives, contains a new set of alarming provisions, including some that criminalise homosexuality, extramarital sex, and criticism of the president.
The latest draft revisions have been widely condemned by rights organisations. The United Nations human rights chief deemed the proposed amendments "inherently discriminatory", arguing that their sanctions fall disproportionately on the most marginalised segments of society. Last month, activists from the so-called Civil Society Alliance to Reject the Draft Criminal Code organised several protests rejecting the parliament's proposals. Indonesia's National Commission on Human Rights warned against the rushed adoption of the current criminal code revisions, calling for more input from the public.
Yet while the media and public have focused on the wider set of KUHP amendments, the inclusion of strict penalties for non-violent drug users has nearly slipped in unnoticed. The draft bill contains 22 articles on the use, possession, couriering, and smuggling of narcotics, all of which are treated as criminal offenses punishable with jail time, or in severe cases, death by firing squad.
A selective copy and paste job
Stiff repercussions for the use and supply of drugs are not a new development in this Muslim-majority, archipelago nation. Indonesia was rendered infamous by its harrowing execution of 14 prisoners in 2015, and more recently, by encouraging on-the-spot shootings of suspected drug dealers without due process.
Drug use and supply have been strictly regulated in Indonesia since 1976 (law no. 9), with subsequent amendments introduced in 2009 (law no. 35). The nation's current drug policy incarnation – which akin to the criminal code, is coincidentally under government review – endorses jail time and civil rights sanctions for those caught using psychotropic substances.
Despite favouring a punitive slant, 2009 amendments to the drug law are tempered by provisions aimed at steering drug users away from the criminal justice system and into rehabilitation. For instance, in cases involving drug use the law provides judges with wide discretion to impose drug treatment as an alternative to imprisonment. Despite ongoing challenges in terms of implementation, the formal recognition of substance use as a complex medical issue requiring health measures offers a lifeline to millions of drug users.
The draft version of the Criminal Code that we consulted (from February 2, 2018) reproduces the provisions on the punishment of drug use from Indonesia's current drug law nearly verbatim, but excludes others focused on health.
One of the most problematic proposals is the lack of distinction between those who use drugs recreationally with those who traffic drugs. In what is arguably one of the broadest, most elusive provisions, draft article 701 lumps together the "ownership, possession, storage, purchase, or cultivation of narcotics, even in cases where the narcotics are for their own use." In this way, the revised criminal code blanket criminalizes vastly different infractions, while failing to recognize drug dependence as a health concern.
Criminalisation of drug use produces added harms
After decades of fighting a brutal war on drugs, the Indonesian government has not been able to offer any convincing evidence that prison time, brutal crackdowns, or executions have curbed drug crime and reduced recreational use.
Counter to the government's claims that the death penalty has a deterrent effect, in practice drug crimes in Indonesia increased in the months after the 2015 executions. At the same time, law enforcement-heavy crackdowns have had no documented effect on drug use rates. Levels of illicit drug consumption in Indonesia have remained relatively stable since the early 2000s, and are much lower than rates found in the United States and many countries in Europe.
The uneven implementation of Indonesia's current drug law means that many drug users, especially those who cannot afford to pay bribes, continue to be thrown in jail. According to the Ministry of Law and Human Rights, Indonesian prisons are up to 273 percent over capacity, with drugs being the chief reason people end up in prison. As of February 2018, 84 percent of all prisoners across the archipelago, amounting to 82,467 men and women, were incarcerated on narcotics-related offences. Among prisoners held on narcotics-related charges, 32 percent were non-violent drug users.
Evidence from several countries with harsh approaches shows that criminalisation results in a domino effect of public health problems, too. Penalisation of drug use increases societal stigma and discrimination against recreational drug users, which can drive them away from seeking health care and fuel HIV and AIDS epidemics. Should the proposed criminal code bill become law next month, the outcomes will be more of the same.
Shedding colonial legacies?
Rather than doing away with remnants of Dutch colonial legacy, rights lawyers argue that the proposed codification of a strictly punitive approach to drugs in the criminal code is far more regressive than its colonial predecessor.
The Netherlands – a country with a relatively permissive approach to drugs – has managed to maintain stable cannabis rates among youth, low rates of HIV among hard drug users, and low levels of drug crime. These health and social benefits were achieved not with the heavy fist of law enforcement, but with pragmatic policies that placed narcotics interventions in the hands of public health authorities.
Faced with explosive heroin-fueled HIV epidemics in the 1980s and a failing, costly war on drugs in many of its European neighbours, the Netherlands adopted a set of policies now known as the "Dutch model". These included substantial investments in comprehensive health and social services like needle syringe programs and safe consumptions rooms where users could access clean drug injection equipment and seek counselling and treatment. These measures are credited with sparing the Netherlands many of the public health and criminal justice system costs incurred by countries with tougher approaches. By comparison, Indonesia's proposed RKUHP changes – which introduce new forms of discrimination focused solely on crime and punishment – would send the country backwards several decades.
Legal advocates have argued that narcotics should remain within the scope of the current drug law. Although in the eyes of many it is far from just, it retains the possibility of improvement. As a "living" document responsive to societal changes, the existing drug law is dynamic and amenable to reform. By contrast, the formal legal processes involved in amending the criminal code are cumbersome, inflexible, and lengthy. Discussions on the revisions started in the 1960s. It has taken until 2018 for criminal code revision to become a legislative priority.
At a time when much of the world is starting to understand the disastrous effects of prohibition, Indonesia should learn from its own drug war history, and move forward rather than backwards. There may not be another chance for reform for another 50 years.
[The views expressed in this article are the authors' own and do not necessarily reflect Al Jazeera's editorial stance.]
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