The Act 35/2009 Advocacy Coalition and National Criminal Code Reform Alliance reject the inclusion of criminal drug offences in the revised draft Criminal Code (RKUHP). Aside from perpetuating the criminalisation of people who use drugs, the proposed changes merely create legal uncertainty for these individuals and further ostracize them from the health-based approaches stipulated in Article 4 of the Narcotics Act.
Up until the present, Indonesian narcotics policy has tended towards criminalising people who use drugs. Since the enactment of Act No.9 1976 concerning Narcotics, the government has imposed criminal sanctions on users due to opacity in the differentiation between narcotics dealers with people who use drugs. The prevalence of criminal penalties for people who use drugs continued to rise up until the introduction of Act No. 35 2009 concerning Narcotics; which at this moment is also undergoing revision by the government.
The Narcotics Act adopts a “double track system” for people who use drugs, allowing for two different kinds of sentence: prison and rehabilitation. The aim of this system is to fulfill one of the objectives of the Act, inserted in Article 4 letter d, which “…guarantees the arrangement of medical and social rehabilitation efforts for narcotics abusers and addicts”.
The biggest problem with the Narcotics Act lies in the application of the article concerning criminal acts. The criminalisation of people who use drugs in Article 127 represents an approach which is both worn-out and not in accordance with the objectives of the Narcotics Act as a whole. It has been proven that imposing criminal sanctions on people who use drugs does not bring a reduction in rates of illegal drug trafficking, but instead gives rise to new problems. In practice, users are not only criminalised for drug abuse, but experience excessive sanctions for the possession, purchase, storage or cultivation of narcotics which are for personal use only.
The negative impacts of criminalisation for people who use drugs – such as violence, torture and trial manipulation, along with impacts on psychological, social, economic and health – indicate that prison is not the solution for these individuals. The health impacts in particular can have a domino effect for both people who use drugs and the general population. The absence of access to healthcare for users throughout criminal proceedings can result in symptoms associated with withdrawal, contagious illnesses (HIV/AIDS, hepatitis, tuberculosis), and death.
Throughout the nine year period it has been in effect, we believe the objectives of the Narcotics Act as outlined above are yet to be achieved. The reality is the number of people who use drugs receiving prison sentences remains far greater than the number receiving rehabilitation. According to the Director General of Correctional Institution’s data, as of December 2017 there were 33,698 people who use drugs in detention.
In our opinion, these figures indicate ongoing confusion regarding the implementation of the rehabilitation efforts guaranteed for people who use drugs under the Narcotics Act. At the same the moment the government began efforts to improve the Act through the compiling of draft revisions, the decision to include regulations about narcotics in the draft revised Criminal Code emerged. In other words, there is slated to be two elements of law which contain approximately the same regulations concerning one kind of behaviour. We believe this will have a stimulative impact on the practice of imprisoning people who use drugs.
In the light of this, it is ill-advised to include narcotics articles in the Criminal Code given any regulation of criminal narcotics provisions is exclusively covered by the Narcotics Act. Such matters should not be regulated separately in the Criminal Code, especially since there are no fundamental changes in the proposed criminal offences in the RKUHP, in either the formulation of articles or matters of punishment and sentencing. These proposed changes will only serve to perpetuate criminalisation.
This criminalisation of people who use drugs in the RKUHP is further aggravated by the essentially unyielding, difficult to change and highly political nature of the existing Criminal Code. These traits are at odds with the issue of narcotics, which is dynamic and subject to drastic change; a discrepancy which makes narcotics policy increasingly difficult to revise.
The vortex of legal threats for people who use drugs do not represent the salvation of the nation’s youth, but are instead “blasphemies” against the aim to guarantee the right to healthcare for people who use drugs through medical and social rehabilitation.
In relation to the matters above, the Act 35/2009 Advocacy Coalition and National Criminal Code Reform Alliance:
- Urge the People’s Representative Council to remove criminal narcotics offences from the draft revised Criminal Code (RKUHP).
- Urge the relevant government bodies, namely the National Anti-Narcotics Agency, the Ministry of Health and the Ministry of Social Affairs, not to agree to this legislative proposal
- Urge the government and People’s Representative Council to decriminalise drug offenders by adopting the harm reduction and health-based approaches mandated in revisions to Act No. 35 2009 concerning Narcotics.
The Act 35/2009 Advocacy Coalition and National Criminal Code Reform Alliance,
January 19th, 2018
This press release was created for a press conference titled “Narcotics in the draft revised Criminal Code: A Serious Threat for Legal Certainty” held at the office of LBH Masyarakat on the 19th of January, 2018. The speakers at this press conference were Yohan Misero, S.H. (Drug Policy Analyst at LBH Masyarakat), Alfiana Qisthi, S.H. (PKNI Legal Advocate), Asmin Fransiska, S.H., LL.M, Ph.D (Lecturer and Head of LPPM Unika Atmajaya), Totok Yulianto, S.H. (Head of the PBHI), Subhan Panjaitan, S.H., M.H. (Rumah Cemara Advocacy Officer) and Rima Ameilia, S.Sos, M.Krim (Mappi FHUI Researcher). This press release was translated by Iven Manning.