Author: admin lbhm

Death Penalty Does Not Deter Drug Traffickers

This piece was written by Ricky Gunawan and was published in The Jakarta Post  on 10 December 2014.

The Attorney Generals Office (AGO) has announced its plan to execute five people by the end of 2014: mostly drug traffickers.

Indonesia is among the few countries with the harshest drug laws, executing drug traffickers to create a deterrent effect.

However, Indonesia’s position to retain the death penalty, particularly for drug offenses, is problematic.

First, the Indonesian legal community often refers to drug trafficking as an “extraordinary crime”, thereby justifying the extraordinary punishment of the death penalty.

However, labeling drug trafficking as an extraordinary crime is groundless from the perspective of international law.

Article 6 of the International Covenant on Civil and Political Rights (ICCPR) — which Indonesia has ratified — states that for countries that have not yet abolished the death penalty, it may only be imposed for “the most serious crimes”.

Various UN bodies, such as the UN High Commissioner for Human Rights, UN Human Rights Committee, UN Special Rapporteur for extrajudicial, summary or arbitrary executions killings and the UN Office on Drugs and Crime, have consistently asserted that drug offenses do not meet the threshold of “the most serious crimes” to which the death penalty may lawfully be applied.

In his 2012 report to the UN General Assembly, the UN Special Rapporteur on extrajudicial killings stated that the death penalty should only be applied for offenses of intentional killings, based on the practices of retentionist states and the jurisprudence of the UN and other bodies.

In March 2014, the International Narcotics Control Board — the independent and quasi-judicial body for monitoring government compliance with the three international drug control conventions, of which Indonesia is a member, encouraged states to abolish the death penalty for drug-related offenses.

The 1988 Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances does not recognize the concept of “extraordinary crimes” for drug offenses. The convention places drug offenses into two categories.

First, drug offenses of a “grave nature”, such as the production, manufacturing and extraction of drugs.

Second, offenses that are “particularly serious”, such as the involvement of organized criminal groups in the production of drugs.

The 1988 convention does not explicitly recognize the death penalty for drug offenses.

Therefore, from an international drug law and international human rights law perspective, categorizing drug trafficking as an “extraordinary crime” and applying the death penalty to drug offenses is indefensible.

Second, the death penalty is retained because it is believed to have deterrence effect. This view is simply invalid. In 2008, Indonesia executed two drug traffickers and in 2013, it executed one more drug trafficker.

According to the 2012 death penalty report by the Harm Reduction International group, there were approximately 100 people on death row in Indonesia, including 58 drug traffickers.

According to the 2013 annual report of Indonesia’s National Narcotics Agency (BNN), there were 260 drug traffickers arrested in 2013 — an increase from 157 people in 2011 and 202 people in 2012. These numbers suggest that while the death penalty is continuously imposed and executions are carried out, the crime of drug trafficking shows no sign of abating. It seems obvious that the death penalty does not deter drug traffickers.

Further, in the past few years there have been cases where drug traffickers were able to operate from inside the prison.

This indicates that they may not be afraid of the penalty because they can bribe prison officials and other law enforcers. Hence, the argument that death penalty carries a deterrence effect is implausible.

Third, it is also often argued that drug trafficking has fatal consequences for younger generations and therefore drug traffickers deserve to be sentenced to death. But as William Schabas — an international scholar on the death penalty — rightly points out, in most cases, the drug traffickers are arrested and the drugs are confiscated. Interdicting drugs before they reach the public means that the trafficker sentenced to death could not have sold the drugs nor could anyone else and, hence, no lives have been lost.

Fourth, the higher probability that a harsh sentence is to be passed down, the higher probability that corruption is involved.

It is widely known that the Indonesian legal system is tainted with corruption and bribery. In this corrupted legal environment, if a drug trafficker is arrested and punishable by the death sentence, he or she is ready to pay high sums to enforcers to avoid prosecution or seek lenient sentences.

Rich drug traffickers will likely be able to evade the death penalty while those who are poor and cannot afford to bribe will be the ones facing execution.

The intention that the death penalty will get rid of drug traffickers is therefore not achievable and the risk that the state executes the wrong person is higher.

Fifth, organizations running illicit drug trafficking are involved in a complex network controlled by some powerful people. Those arrested are often just drug mules taking the greatest risks.

Imposing the death penalty on them will not deter the drug kingpins controlling the syndicate as they will continue to seek, groom and exploit vulnerable individuals to do the dirty jobs.

Illicit drug trafficking unquestionably has harmful effects on individuals and society. However, there is a common misconception that imposing the death penalty and executing those involved in drug trafficking is the magic formula to address this problem. As the above arguments demonstrate, the death penalty is ineffective for combating drug trafficking, and thus Indonesia must evaluate its strategy.

Indonesia should probably start by evaluating its unrealistic “2015 Indonesia Drug Free” program. While drugs have negative impacts on human beings, drugs can be positive too, for the purposes of health, science and technology.

This means that we cannot live in a “drug-free world”, but looking at Indonesia’s stubbornness to retain the death penalty despite its useless effect, one would ask whether Indonesia is open and ready to evaluate its misguided beliefs.

Are Indonesia’s Government and Civil Society Actors Debating Drug Policy in Parallel Universes?

This piece was written by Ajeng Larasati and Gloria Lai and was published in Talking Drugs on 21 December 2012.

When the head of Indonesia’s narcotics control agency (BNN), Mr. Gories Mere, said that his country’s drug policies were better than those of Portugal because they required all people who use drugs to be rehabilitated, he set the tone for his agency’s contribution to a national symposium on drug policies on diversion and treatment. IDPC, which was represented by Mike Trace (Chair), Ann Fordham (Executive Director) and Gloria Lai (Senior Policy Officer), were co-organising the symposium together with the United Nations Office on Drugs and Crime, BNN, and Indonesia’s Ministry of Health, held in Jakarta in early October.

In the context of ongoing difficulties with implementing new laws and regulations introduced since 2009, including mandating the registration of people who use drugs and their diversion into treatment centres, a Portuguese representative (Nuno Capaz, Dissuasion Commission, Lisbon) was invited to speak on his country’s system of decriminalisation and diversion of people who use drugs to treatment and services (only where the individual has such a need).  Just three weeks prior to the Jakarta symposium, over 20 government officials (including Mr Mere), parliamentarians, civil society and international agency (UNODC, AusAID) representatives had taken part in a study visit to Portugal to see for themselves the Portuguese model of decriminalisation and drug treatment. However at the symposium, there did not appear to be a prevailing mood for change amongst government agencies.  While the Ministry of Social Affairs insisted on the need to ensure that individuals were fully rehabilitated and did not relapse, though without explaining their plan to achieve that need, the Ministry of Health spoke frankly about the challenges faced in implementing laws on compulsory registration—including difficulties with coordinating all the agencies involved in the registration and treatment system—and improving the capacity of health centre staff to respond appropriately to people who use drugs.

In what seemed like a parallel universe, BNN representatives, proudly talked about having the ‘most beautiful’ rehabilitation centres in Southeast Asia, the effectiveness of relying on religious leaders to ‘rehabilitate’ people who use drugs where law enforcement agencies have failed in their efforts, and offering ‘sabbatical’ trips to islands for people who have stopped using drugs to help them with social reintegration.

However the symposium was refreshing in allowing a wide range of voices to be heard. A member of the House of Representatives committee responsible for health issues questioned the necessity and effectiveness of requiring the compulsory registration of people who use drugs, and urged the serious consideration of adopting instead drug courts (as with some states in Australia) or dissuasion commissions like those in Portugal. Edo Agustian of the national drug user network (PKNI) spoke about the fear that people who use drugs have about police abuse, and the need for them to feel assured about being safe from abuse and harassment if they were ever to willingly register themselves with the authorities. He also spoke about the increasing use of amphetamine-type substances (ATS) and the need for ATS-specific treatment on the one hand, but on the other, the need to recognise that many people use ATS occasionally and do not need treatment.

That there was an opportunity for a range of voices from government, community, and civil society to speak frankly about the specific issue of compulsory registration and the treatment system in Indonesia might have been an achievement in itself. That it could help to stimulate further steps towards lasting change in laws and institutional practises now depends on the ongoing efforts of all those involved. This was one of the aims of several Indonesian civil society actors, who gathered the day after the symposium for an IDPC civil society advocacy workshop.

At the workshop, IDPC shared an update on international and regional drug policy developments. At the international level, Mike shared some good news about movements toward drug policy reform in the United States and some Latin America countries. Meanwhile, news from the region showed that drug policy debates were not as dynamic as at the international level. Many Asian countries still impose compulsory treatment for people who use drugs, such as in Thailand.

Many participants exchanged views on the Indonesian government’s perception of diversion issues. Some participants also pointed out that there are still many civil society workers that lack understanding about Indonesia’s overall drug policy. To gain a better understanding about national-level policies, participants did an exercise to map the actors involved on drug policy issues in different areas, for example, providing harm reduction services,  gathering data related to drugs, and policy advocacy. Participants also engaged in other exercises to help identify the key problems in Indonesia’s current drug policies, as a basis for developing an advocacy plan. Among the problems identified were the need to amend the Narcotic Law and address the lack of coordination among all government agencies involved in drug policy.

At the close of the workshop, one participant from Papua shared her concern about Papua’s unique conditions where, unlike in the big cities, access to treatment, data, and information are very limited. Overall it was a fruitful two-day discussion. Even though there might have been an issue with language barriers, everyone had their opportunity to share their opinion on the challenges and opportunities in reforming Indonesian drug policy.

Judicial Killing in the War on Drugs—The Death Penalty for Drug Offenses

This piece was written by Ricky Gunawan and was published in Open Society Foundation on 26 November 2012.

The numbers are shocking.

At least 540 people executed for drugs in Iran in 2011.

At least 16 beheaded for drug-related offenses in Saudi Arabia in the first six months of 2012.

And thousands more languishing on death row awaiting a possible beheading, firing squad, lethal injection, or hanging. Many of them low-level mules, conned, coerced, or manipulated into carrying drugs into countries that retain capital punishment for drugs.

A new report, The Death Penalty for Drug Offences: Global Overview 2012—Tipping the Scales for Abolition, identifies 33 countries or territories that still retain the death penalty for drug offenses, including 13 where the sentence is mandatory. The report documents the laws in place as well as how frequently the sanctions are applied.

The report was launched with the UK All Party Parliamentary Group on the Abolition of the Death Penalty at the UK House of Lords, hosted by Baroness Vivien Stern, the Chair of the group.

While there have been alarming numbers of people who were executed or sentenced to death for drug offenses, Tipping the Scales for Abolition recognizes some positive legal and political developments in these countries. In 2012, Singapore and Malaysia recently took steps to review their mandatory death penalty for drug offenses. In India and South Korea, courtroom challenges helped overturn mandatory capital sanctions.

As the findings of this report suggest, the global trend toward the abolition of the death penalty—particularly in the context of drug offenses—is moving in the right direction. Fewer than 10 countries actually carried out executions for drugs in 2011/2012 and the number of countries with capital drug laws on the books, are in decline.

Where these laws remain, however, they are entrenched in highly politicized “moral” rhetoric of governments. Drugs are posited as an “evil” that destroys the future of youth and society. Drug offenses are very often referred to as more dangerous than murder.

These arguments clash with human rights standards, which applies strict limits on the death penalty in international law. Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR) calls on States to reserve the death penalty for what the treaty terms “most serious crimes.” The UN body—and numerous human rights scholars and experts—have repeatedly asserted that drug offenses do not meet this standard.

In defense of their death penalty policies, governments sometimes argue that as drugs have potentially fatal consequences, these crimes should be equivalent to murder. However, as Prof. William Schabas—a leading expert on international law and the death penalty—argues, in most cases, the drug traffickers have been arrested and the drugs been confiscated. This means, the cargo never reached the public and thus there is no choate lethal or grave offense for which they are being punished.

While the movement to abolish the death penalty has made incredible strides in recent decades, what is not well-known is the role drug offenses play in modern capital punishment discourse.

In many countries that retain the death penalty, drug offenders make up the majority of those who are condemned to die. While it would certainly be ideal to abolish the death penalty for all crimes, a major incremental step would be to ensure international standards are followed vis-à-vis capital punishment for drugs.

HRI estimates that there may be as many as 1,000 people executed for a drug offense every year. But as the organization’s report shows, these sanctions are indefensible in international law—and they should be abolished.

Indonesia: Lost in Transition?

This piece was written by Ricky Gunawan and was published in The Jakarta Post on 10 May 2012.

President Susilo Bambang Yudhoyono is expected to apologize on behalf of the state to victims of past human rights abuses and their families. One thing is certain, however. The President is sure to deny accusations that he was involved in any crimes against humanity in the past, or else he will be prosecuted and brought to justice.

Then the question is why would he want to apologize for a wrong that he did not commit?

David Miller argues that a nation cannot legitimately enjoy benefits that have been inherited without acknowledging responsibility for past incidents that have involved injustices. This includes providing redress for past abuses.

Yudhoyono has not administered this country from zero. The successes he has achieved during his tenure cannot be completely claimed as his administration’s own accomplishments. He leads this country with all the benefits that have been attained by previous presidents.

Apart from past achievements, there were also mistakes committed. It is hypocritical for Yudhoyono to enjoy and only recognize the benefits that his administration has inherited without recognizing the unjust treatment that the previous governments practiced.

Therefore, Yudhoyono must sincerely apologize to the victims of past human rights violations and their families.

However, as a state in a transition from authoritarianism to democracy, Indonesia is confronted with addressing past injustices. An apology is one way, but there are other things that have to be done as well to resolve past human rights violations.

An apology must be followed by a conviction to prosecute those responsible. An apology neither negates nor replaces prosecution of the perpetrators of human rights violations, because both of them have different roles to play in this transitional context.

An apology is the state’s formal expression of remorse toward injustices endured by the victims and their families. Meanwhile, prosecution is a way to recognize that those injustices shall not be ignored. People may forgive the perpetrators but not forget the crimes.

Of course, however, as Michael Freeman points out, there is a possibility that fair trials may acquit the accused and this may increase the suffering of the victims. Yet, prosecution conveys a clear message to the perpetrators and potential perpetrators in the future that no one is above the law.

Additionally, if perpetrators of atrocious crimes can fool justice, it is a grave insult to the moral conscience of the victims and their families. If Indonesia is truly built upon the rule of law where everyone is equal before the law, the fact that perpetrators can evade justice is an utter nonsense.

This May marks the 14th year of Reform and nonetheless, there are no significant signs that the truth of past human rights abuses shall be revealed or that those who bear responsibility shall be brought to justice. The inability of the state to address past injustices seems to suggest that Indonesia is lost in transition.

Insofar that these transitional initiatives are not thoroughly undertaken, Indonesia has not yet come into a democratic stage in a substantive way. Indonesia may claim to be the third-largest democracy — but perhaps it is in only in a procedural sense. Indonesia may be commended for successfully held free and fair elections.

However, that is not sufficient.

Democracy carries its substantive importance when the outcome of it protects human rights effectively. Therefore, Yudhoyono’s apology must be followed by the prosecutions of those responsible for past human rights abuses. An apology that is disingenuous and undertaken as political accessory is a mockery as it ridicules victims’ pains and their families’ grievances.

The prosecution of perpetrators of human rights abuses is needed because it is also about what kind of legacy that Indonesia as a nation will bequeath to future generations. Ghastly chapters of Indonesia’s history will never be fully finished so long as perpetrators are left unpunished and victims not given adequate reparations.

The absence of prosecution equals impunity and condones the reproduction of state-sponsored violence. It is the absence of justice that has let perpetrators of past human rights abuses brazenly come forward as presidential candidates.

These unfinished transitional initiatives contribute to public amnesia and thus society does not feel guilty by voting or endorsing presidential candidates with poor human rights records. People who have committed egregious crimes do not have the integrity to be our leaders.

If human rights violators can be elected our leaders, human rights protections in the future will be in peril. Bringing those perpetrators to justice will repair the damage that has been done to the victims and, with wholehearted truth-telling, Indonesia can proudly step into peaceful democracy without being haunted by its historical burden. Yudhoyono had better have this clear transitional agenda; otherwise, his apology is no more than empty words.

Indonesian Odyssey: A Drug User’s Quest for Treatment

This piece was written by Ricky Gunawan and was published in Asia Catalyst on 12 February 2010.

The story of Rose – the first drug user sentenced by Indonesian courts to rehabilitation instead of prison – continued this month, with some dramatic twists and turns that highlight obstacles to implementing Indonesia’s newly improved policy.

Rose was transferred from Pondok Bambu Detention Center to Cibubur Drug Dependence Hospital (RSKO Cibubur), on Monday, February 8, 2010. As I wrote in December, it took months after her July sentence for the corrupt detention system to actually move her to the hospital. During that time, Rose suffered from withdrawal symptoms without any medication. But even once the transfer was finally completed, it seemed the drama had only begun.

Rose was transferred to RSKO Cibubur using a hospital vehicle, and accompanied by staff of our organization, LBH Masyarakat. Once she arrived, hospital staff examined Rose regarding her addiction history, and gave her some medicine. They then charged a fee of around US$42.

In response to the medical fee, we argued that Rose was transferred to the hospital as ordered by the court, and also that she comes from poor family. Therefore, she should be released from any fees.

The administration officer at the RSKO Cibubur informed us that in order to get free drug treatment there, a civil health insurance card (jamkesmas – insurance for poor people) would be required. Otherwise, Rose would be liable for the fees of about US$270/month for six months – an astronomical sum for an impoverished Indonesian family.

Actually, we suspected this might happen. Rose’s mother had already begun the process of applying for a jamkesmas card in Bandung, West Java, where Rose is a resident. However, Rose’s mother found herself trapped in Indonesia’s rotten bureaucracy, ping-pong-ed from one unit to another unit.

Eventually, she was informed by the first officer who assisted her at the regional health agency that jamkesmas has a quota system. In other words, the government can only cover a limited number of poor people. If a poor person wants to apply for jamkesmas, s/he has to wait until someone from that quota dies.

This information was conveyed to RSKO Cibubur, but the administrative officer still refused to treat Rose without a jamkesmas card. Knowing Rose’s condition in Jakarta, Rose’s mother became seriously distressed about the bureaucracy in Bandung.

We were asked to deposit a large amount of money and sign a guarantee letter saying that if by Wednesday, February 10, Rose’s jamkesmas card is not submitted, we agree to cover all the medical expenses. We did so, and then we asked Rose’s auntie in Jakarta to sign the guarantee. But, she would only guarantee the costs until Wednesday. If on Wednesday Rose’s jamkesmas is not ready, Rose’s family has to pay all the medical expenses. Of course, as an underprivileged family, this is impossible for them.

And if Rose’s family can’t afford to pay the expenses, and the hospital can’t receive her, what’s the point of sending Rose to a drug treatment hospital for rehabilitation?

The hospital’s standpoint — that they want to treat Rose but need some guarantee of payment — is understandable. Since it is the state’s responsibility to pay the expenses, the state should provide a jamkesmas card. But the jamkesmas system, in which an impoverished person can join only if another jamkesmas holder dies, is completely ridiculous.

Luckily, we learned that in December 2009 the Ministry of Health had introduced a new program called “Jamkesmas for Newly Impoverished Persons”. This new program is available for impoverished people who are in correctional facilities, detention centers, social shelters or who are victims of natural disasters. Fortunately, Rose qualifies for this program.

On Tuesday afternoon, Rose prepared all the documents needed and on the next day her application was approved. At first, the administration officer at the hospital refused her application, because the program is so new that detention facilities don’t even know about it yet. Finally, Rose was accepted for treatment at the hospital.

Rose’s dreadful experience once again reflects the fragility of Indonesia’s legal system when it addresses drug users and the issue of addiction. Indonesia’s Narcotics Law clearly states that the state will pay the treatment costs for drug addicts who are found guilty of committing drug offenses, as this is considered part of the punishment period. But as the first person to be so sentenced, Rose had to work hard to convince the hospital that she is impoverished, and that her rehabilitation is a court’s order.

Rose’s case shows that Indonesia does not yet have a system in place ready to serve convicted drug users who need rehabilitation. Had the whole system been set up, it would be obvious that Rose had to go to rehab first, treat her addiction and then serve her prison sentence. It would also be clear who is responsible for transferring Rose from detention center to the hospital, and what procedures to follow when arranging for treatment costs. Instead, Rose and her supporters have had to advocate to create such a system at every step of the way.

One thing is for sure: Indonesia needs to develop a good system that can address the above issues very quickly. If a drug user needs to be imprisoned, it is far better for her or him to go to rehab first to treat the addiction, instead of prolonging her or his suffering and creating new health crises for prisons.

Addicted to Corruption in Indonesia

This piece was written by Ricky Gunawan and was published in Asia Catalyst on 3 December 2009.

Rose (not her real name) has been using drugs for more than ten years. During that time, she had been arrested a number of times, and her life has been harrowing. Not long ago, she began to feel hope for the first time, when in a breakthrough decision, Indonesia’s judges decided to send her to a rehabilitation center to treat her addiction.

However, Indonesia’s rotten and corrupt judicial system dashed her hopes.

Rose was arrested by the police on January 23, 2009 and after a lengthy legal process, received a court decision on July 27. Normally, Indonesia’s courts sentence drug users to prison. In this case, the court ordered her to be imprisoned for one year and eight months, but to begin with a period of rehabilitation for six months. This meant that once she got out from rehab she would only need to stay in prison for one year and two months. Since she had already served six months in detention waiting for her court hearing, that would be deducted from the total sentence, and Rose would only need to serve eight months in prison after her time in rehab.

The court’s decision to sentence Rose to rehab was a breakthrough and a first for Indonesia. It signaled that courts are finally beginning to consider drug users as victims from a health perspective, and to understand that putting them in prison will not treat their addiction. In fact, Indonesia’s poor correctional facilities will only deteriorate their health.

However, as of this writing – more than three months after the court decision – Rose is still waiting in a detention center.

What went wrong? After the court delivered its decision, the prosecutor’s office should have executed the judgment; in this case, they should have transferred Rose from Pondok Bambu Detention Center to Drug Dependence Hospital in Cibubur, Jakarta, for six months, and then sent her on to the correctional facility for eight months.

But the prosecutor, detention center and hospital officials had no idea of how to transfer such a person. Rose is the first person detained in the Pondok Bambu Detention Center to be sentenced to rehab. The prosecutor claimed that they have no standard operational procedure for transferring a person from a detention center to a rehab center.

Poor administration and bad bureaucracy have led Rose’s sentence-execution letter to ping-pong from one unit to another within the prosecutor’s office, with many typos added along the way, thus necessitating repeated rewriting of the letters. Disgracefully and predictably, the prosecutor has tried to extort Rose for fees in order to “expedite the process”.

It seems that the prosecutor doesn’t understand the concept of drug dependence. A drug user who is suffering from serious addiction, and who is detained for more than three months without proper medication, is of course having a very hard time. Ignoring Rose’s dire need to get drug dependence treatment simply amounted to ill-treatment. Rose is suffering terribly in detention.

It is deeply disappointing to see that after more than ten years of efforts at institutional reform, the prosecutor’s office has failed to eradicate the cancer eating away at its heart: that is, corruption. If in this petty case, a prosecutor is unable to handle the execution of a straightforward sentence to rehab, then it is no wonder that in cases involving corruption of high-rank government officials, members of parliament, or even in the case of Munir – Indonesia’s assassinated human rights defender – the prosecutor is utterly impotent.

The key to successful institutional reform lies in the ability of institutions to recognize their own weaknesses. They need to be able to acknowledge that there are internal problems that need to be fixed, and be open to constructive criticism as well as expert assistance from outside. Without this ability to diagnose and fix its own weaknesses, the institution itself will be left behind and excluded by other enhanced and modern institutions that are transparent, accountable, and that have zero tolerance of corruption.

Indonesia’s prosecutors should learn a lesson from Rose’s heartrending story. It should be a basis for the prosecutor in developing procedures to handle similar cases in the future, so that no one again will undergo what Rose has — and still is — suffering.

War on Drugs in RI: Demonizing The Most Vulnerable

This piece was written by Martin Lundqvist and Ricky Gunawan and was published in The Jakarta Post on 12 December 2008.

When arriving at the international terminal of Soekarno-Hatta Airport, Jakarta, the first tangible impression is the huge neon sign reading \”Welcome to Indonesia — Death Penalty for Drug Traffickers!\” This sign is indicative of the Indonesian government\’s policy on drugs, which has resulted in the adoption of a \”war on drugs\” law, as well as in stigmatizing and discriminating against the domestic drug user community.

According to Law No. 22/1997 on Narcotics anyone handling narcotics is a criminal. This means that the drug dealer, the drug trafficker and the drug user are liable for criminal prosecution. There is no doubt that the drug trafficker should be prosecuted and punished, but the drug user? The government claims to have adopted a \”war on drugs\” — a war which has resulted in criminalizing and stigmatizing some of the most vulnerable people in society — the drug addicts.

This law has been accompanied by several government-initiated advertising campaigns, the basic tenet of which is to portray the drug addict as the antithesis of \”goodness\”. S/he is portrayed as a sinful person who will end up in hell, contrasting with the \”good citizen\” who will go to heaven in the afterlife. The drug user is additionally depicted as inhuman and is virtually demonized in these campaigns.

As a natural consequence of this law and the advertisement campaigns, discrimination against drug users is a common feature in Indonesian public life — most notably seen in the relationship between the police and the drug user. It seems many police have a quota of arrests to meet every month — arrests which are disproportionately aimed at drug users.

Additionally, they are often arrested and then asked for money in order to be released. Given that the average salary for the police is only around Rp 3 million (US$241.35) per month, this is an easy way to increase their income. In their interactions with drug users the police often use torture, threats and illegal detention as a means to gain confessions of alleged crimes or for payment of bribes.

Torture practices are especially experienced by female drug users. They are frequently subjected to sexual harassment from the police. It is common knowledge amongst the women that in order for them to be released they must provide sexual services to the police. In their daily language this is referred to as: tukar body (exchange body). In practice then, their options are restricted to paying money, providing sex services, or staying detained.

The drug user is an ideal victim for abuse of power, since very few of them are likely to file complaints about police misconduct. This is partially so because many of them have internalized the values of the \”war on drugs\” campaigns, and feel they somehow deserve to be tortured.

They also have a widespread fear of the police — a fear which is highly rational given the normal (violent) pattern of interactions between the police and the drug user. Therefore, the police enjoy almost full impunity when it comes to violating the human rights of drug users.

Sadly, very few legal aid and human rights organizations advocate against torture when the victim is a drug user. They are worried that this might negatively affect their \”good image\” as human rights defenders. This is regrettable, but also quite understandable, when considering the perception most Indonesians have of drug users, which is condemning, to say the least. However, defending human rights should be about defending every human being\’s rights — regardless of their sex, race, gender, religion or social status.

As mentioned, large sectors of the Indonesian public hold strongly disapproving attitudes toward the drug user, attitudes which (to a large extent) derive from the government\’s demonizing campaigns. Drug users are considered to be sinful and should therefore be excluded from the environment of the \”good citizens\” — including education and health institutions. The consequence of this is that many schools have a strict admissions policy where prospective students have to pass a urine test in order to prove that they are \”clean\”.

When it comes to healthcare, drug users are often treated in a demeaning manner by doctors and health care personnel. For example, they are frequently asked questions such as: \”why do you want to get sick? You know drugs make you sick, still you use it\”. The drug user has to endure moral condemnation which should have no place in a professional medical institution.

Finally, it is important to note that drug addiction is indeed a major societal problem which needs to be combated. However, this need not include criminalizing and stigmatizing a large group of citizens. Many international examples show that it is possible to be \”hard on drugs\” while also respecting the needs and human rights of its citizens.

Heavy drug addiction is a health hazard, and the addict should be given proper medical care to help combat his addiction, rather than to be prosecuted and put in jail. Pursuant to Indonesian Law No. 11/2005, the government must recognize the right of everyone to enjoy the highest attainable standard of physical and mental health, and thus must maximize available resources to achieve full realization of this right.

This law is derived from the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Indonesia has signed and ratified. Indonesian Law No. 22/1997 unfortunately proves that the government is more concerned with its \”war on drugs\” than with the health and human rights of some of its most exposed citizens.

Laws Against Torture Needed

This piece was written by Ricky Gunawan and was published in The Jakarta Post on 22 November 2008.

On Jan. 22, 2007, Hartoyo was at home with his partner, Bobby (not his real name), when two men forcibly entered his house and proceeded to vandalize his property before assaulting the two men. Hartoyo and Bobby were then dragged outside to a place where a crowd of around 15 people had gathered. They were subjected to beatings and verbal abuse. Hartoyo was ordered by the attackers to immediately vacate the boarding house. The attackers then informed the local police authorities.

The two victims were taken by four police officers to the Banda Raya Police Station where they were made to strip down to their underwear and were viciously beaten and verbally abused by the officers. The police officers later sexually abused Hartoyo and then forced his partner to perform oral sex on him. The two were then dragged to the police station courtyard where officers sprayed them with ice-cold water.

The police also forced Bobby to urinate on Hartoyo\’s head. Hartoyo and his partner were then taken to a police lockup, where they were held until morning.

This ruthless, inhuman and barbaric torture has been a cavernous trauma for Hartoyo. Furthermore, this abysmal event scars Indonesia\’s face of humanity.

More than a year later, in October 2008, the case was finally tried by the Banda Aceh District Court. However, as the court regarded the torture merely as a minor offense, there was only one judge hearing the case.

During the trial, the judge did not examine the acts of torture but rather focused on Hartoyo\’s sexual orientation. The judge advised him to turn away from sin, giving the impression that it was permissible for the perpetrators to beat and assault the victims because of their different sexual orientation.

In about 30 minutes, the judge had made his decision: The four perpetrators were sentenced to three months\’ imprisonment with six months of probation and a fine of Rp 1,000.

Given that the case was tried as a minor offense, the verdict was final and binding — leaving no hope for the victim to appeal.

Hartoyo\’s case is only one example of how the Indonesian legal apparatus treats this kind of torture. The court obviously treats the \”common enemies of all mankind and all nations\” nicely and inadequately by ruling they only committed a minor offense.

From this case, we can also draw the conclusion that torture creates double standards within the state institutions, especially the police and judiciary. How is it possible that such severe violence took place in this very modern day and the perpetrators received a very light punishment?

This case demonstrates how the absence of laws on torture resulted in no justice for the victims of torture. The absence of laws on torture denies victims and their families any avenue for justice and redress. The right to redress and compensation for grievances wreaked by the State is a fundamental principle of the Convention against Torture, to which Indonesia is a party. Indonesia, which does not provide a legal remedy for such unspeakable acts, is also violating its international obligation imposed under the Convention.

Reports from many national and international human rights groups show there have never been investigations into cases of torture and other ill-treatment, and where victims have been reluctant to submit a complaint to the relevant authorities. Even if the perpetrators were convicted, they were not convicted under the laws on torture. Definitely, there is a problem in dealing with torture in Indonesia.

The UN Special Rapporteur on Torture has recommended that for a country such as Indonesia, there is a crucial need for an independent national authority, such as a national commission or ombudsman with investigatory and/or prosecutorial powers, which should be immediately established to receive and to investigate complaints on torture cases.

Complaints about torture should be dealt with without further delay and should also be investigated by an independent authority with no connection to that which is investigating or prosecuting the case against the alleged victim. Wherever a person has a plausible complaint of having been tortured by the police or military officers, it too entails the notion of an effective remedy.

Without establishing a proper, impartial and effective accountability mechanism to investigate torture cases as well as enacting domestic laws on torture, there will be more cases like Hartoyo\’s in the near future. Indonesia\’s tortured commitment, apparently, is dragging the country into a tortured nation.

No Anti-Torture Laws 10 Years On

This piece was written by Ricky Gunawan and was published in The Jakarta Post on 10 October 2008.

On Sept. 28, 1998, Indonesia ratified Convention against Torture. It was expected that this ratification would be a milestone in the struggle against torture. It was meant to impede rampant and continuous torture practices committed by Indonesian police officers and military forces at the time.

Despite the ratification, however, there is no corresponding domestic law criminalizing torture.

For some, torture is the same as maltreatment. According to international human rights law, however, torture is categorized as the highest of crimes. The jus cogens nature of torture justifies states taking universal jurisdiction over torture wherever committed.

International human rights law provides that offenses jus cogens may be punished by any state because the offenders are \”common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution\”. Those who commit torture are classed as acting against humanity (hostis humanis generis). Meanwhile, maltreatment is simply an ordinary crime.

Torture has an enormous impact on the lives of victims, victims\’ families, perpetrators and their families, those aware of such practices in civil society, and enforcement agencies. Torture is not just about breaking the victims, both physically and mentally.

It will haunt the victims for the rest of their lives. Torture is always deliberate and the victims are always unwary. The inflicted pain is acute and chronic. Central to the practice of torture is the intention of cruelty and destruction.

Torture is acknowledged as an ultimate denial of the inherent dignity of every individual. It focuses the power of the state apparatus against a single, defenseless individual, who is often locked in a small, murky room. Torture aims to isolate, hurt and humiliate the victim by using one of the most basic human nature, the aversion of pain or suffering, to overpower dignity. Moreover, it aims to strip the individual of the very qualities on which human rights are based.

The consequences of torture are multidimensional and interrelated. No part of the victim\’s life is untouched. Although the effects of the physical pain suffered diminish after months or years, lasting physical impairments resulting from torture, such as amputation, hearing loss, blindness, muscle impairment, inability to bear children, sexual dysfunction, scars and poorly healed fractures, are permanent mementos of the trauma endured.

In addition to the physical wounds, torture victims suffer from psychological symptoms such as feelings of anxiety, guilt, shame and powerlessness in relation to the problems of everyday life. They can also suffer from poor sleep and recurrent nightmares.

Torture stigmatizes and ostracizes the victims. The families, spouses and children of the victims also bear the brunt, left to lead secluded and demoralized lives.

The aftermath of torture does not solely affect the victims and their families. It affects the perpetrators as well. Torturers and their families also suffer from comparable psychological effects, though they enshroud them using a facade of pride and superiority.

The torturer will be living a normal life even though they have just committed a serious crime. In fact, in terms of family relationships, torturers are living a double life: They are nice fathers at home, while also cruel, ruthless and cold-blooded people.

Despite the unspeakable aftermath of the crime as well as a plethora of reports and declarations issued by the international community, torture persists in more than half of the countries in the world, including Indonesia. Torture remains a problem of great magnitude in the world.

Societies allowing the practice of torture to take place are more likely to develop a culture of violence, generating further atrocities. Deterring such actions and establishing measurable systems to effectively prevent torture may come only from respect of human dignity and social sanity, without which, torture remains an abhorrent violation of human rights and human dignity.

The question left is, will the Indonesian government put its overly repeated commitments to pass proper laws on torture into reality or not? Ten years is, of course, more than enough for the Indonesian government to thoroughly understand the gravity of torture. Recognition of the grave nature, however, devoid of a single law to criminalize it will never bring such evil practices to an end.

Death Sentence, Is It Our Right?

This piece was written by Ricky Gunawan and Answer C. Styaness and was published in The Jakarta Post on 5 September 2008.

Setting out the pros and cons about the death penalty always creates hot debate. Many countries including Indonesia, as well as several U.S. states, still have capital punishment, while the practice has been abolished in Europe and Australia.

Opponents of capital punishment argue there are many who still do not realize or recognize the death penalty violates the right to life as an inherent right of all human beings.

The death penalty is a form of cruel, inhuman and degrading punishment. It is nothing more than legalized murder done by the state in the name of justice. If we think murder is extremely cruel — so much so the perpetrators must receive a death sentence — then how can we say preparing an execution team of twenty shooters to take someone\’s life is not inhuman?

One of the favorite arguments put forth by retentionists — those who support the death penalty — to justify capital punishment is it is one of the most effective deterrents for would-be criminals. They argue the death penalty is needed to prevent other members of society from committing crimes.

Statistics from many countries, however, demonstrate the death penalty has little effect on decreasing crime. It is not the severity of the punishment which will deter crime and convey justice for the victim but the certainty perpetrators are convicted after a just, transparent trial, a legal process which determines guilt based on evidence.

\”But the death penalty meets society\’s need for justice.\” Retentionists often use this argument as well. Anyone who has committed a serious crime deserves to die. Eye for an eye, tooth for a tooth, a life for a life. Is that the kind of justice we stand for here?

If so, then why not torture a torturer? At this point, we strongly condemn the practice of torture or, at least, prohibition of torture is clearly codified in the UN Convention against Torture. Letting that argument play out, why doesn\’t our legal system allow the state to rape a rapist?

It is simply because, deep down inside our conscience, we all know justice is not about taking that which the perpetrator has taken from us. For a long time, we have been sickened by cruel crimes and have asked the government to impede such cruelty by applying the death penalty. Yet we never put two and two together to see capital punishment does nothing more than continue the chain of atrocity.

Retentionists often link the notion of death penalty with a victim\’s need for justice. But who are they to talk about what any victim considers justice to be?

Victims often forgive perpetrators and even unequivocally declare they do not want the perpetrators to be executed. If we really want to punish perpetrators for the victims\’ sake, it is akin to punishing people based on emotional considerations. If punishments are linked to victims\’ feelings, then sanctions become subjective and risk becoming arbitrary.

Let\’s not forget the criminal justice system is vulnerable to error, an essential consideration in this debate. Fallibility is something we, as human beings, cannot avoid since it is in our nature. We cannot prevent all false convictions even with the system of judicial appeal.

Even an impartial and transparent legal process cannot always prevent this sort of human error. It is thus imprudent to allow this vulnerable system to decide if someone \”deserves\” to die or not.

As has already been proved in many cases, a court may execute someone who is falsely convicted. There are cases in which the executed were found innocent after the real perpetrators confessed and, unfortunately, after the executed had already lost their life. When this happens, consider who is responsible. If we are speaking of justice, what kind of justice can the victim, the executed one, and his or her family experience? We cannot bring the wrongly convicted back to life. Are retentionists willing to be responsible?

One final argument which Indonesian retentionists use to defend their position on the death penalty is a decision by Indonesia\’s Constitutional Court. In that decision, the right to life guaranteed in Article 28I, paragraph 1, of the Constitution is also subject to \”limitation\” as mentioned in the subsequent Article 28J, paragraph 2. The Constitutional Court confirmed the death penalty is not a violation of the right to life, only a limitation of that right.

That decision hinges on how we interpret what rights can be impaired, and which cannot. Is it true the right to life, explicitly mentioned in the Constitution as a right which cannot be derogated, is also subject to \”limitation\” as the Constitutional Court ruled?

Life is grace. It is a grace which is given by God. If He is the one who gave us life, then He must be the one with the right to take it. Who are we, as humans, to think we have the right to arrange somebody\’s moment of death? Who are we to judge whether someone is evil enough and hence deserves to die?

Are we playing God?