Para Pendekar di Sudut-Sudut Gelap Kota

“Demi Keadilan Berdasarkan Ketuhanan Yang Maha Esa…Pengadilan Negeri… telah menjatuhkan Putusan sebagai berikut…Mengadili…menyatakan bahwa terdakwa secara sah dan meyakinkan terbukti bersalah… menjatuhkan hukuman… penjara.”

Melakukan pekerjaan-pekerjaan hukum di ibukota secara umum menjanjikan beberapa hal yang menyenangkan: uang, jabatan, atau, setidak-tidaknya, ketenaran. Jakarta adalah pusat pemerintahan dan juga pusat ekonomi. Bayangkan betapa banyak kepentingan yang berseliweran di ruas-ruas jalannya.  Bayangkan apa yang orang rela lakukan demi mengecap sedikit kejayaan. Hukum, kemudian, dapat menjadi alat yang sempurna untuk meraih banyak hal. Dari sana, para pekerja hukum, sebagai prajurit-prajurit kepentingan, berargumen, berdebat, bersidang, melakukan apa pun yang diperlukan untuk memenangkan pertandingan.

Di luar riuhnya semua janji-janji Jakarta, ada beberapa insan yang tak memperdulikan semua itu dan memberikan waktu dan ilmunya bagi kepentingan yang tak mampu memberinya uang, jabatan, dan ketenaran. Insan-insan yang menemukan dirinya dalam pengabdian. Insan-insan yang memperoleh kesadaran bahwa ada yang lebih indah daripada gemerlapnya ibukota.

Kepentingan-kepentingan yang mereka perjuangkan tidak selaras dengan yang masyarakat percaya sebagai sesuatu yang pantas diperjuangkan. Kepentingan-kepentingan yang mereka perjuangkan bahkan, dalam taraf tertentu, diperangi oleh negara.

Pun demikian, mereka tak gentar. Walau masih jauh di ujung jalan, mereka tidak mundur teratur melainkan maju bertarung. Meski sulit, mereka meyakinkan diri bahwa perubahan, bagaimana pun bentuknya, akan, terus, dan pasti terjadi. Mereka tepis anggapan utopis, terus optimis meski dipandang sinis.

Mereka adalah pendekar. Seorang sakti yang memberi dirinya untuk masyarakat. Para pendekar ini hadir di sudut-sudut gelap ibukota. Mereka hadir untuk orang-orang yang mengklaim otonomi atas tubuh sendiri dan diancam dimasukan ke dalam penjara atas nama Undang-Undang Narkotika. Mereka hadir untuk orang-orang yang dibedakan oleh masyarakat karena identitas dan orientasi seksual yang berbeda. Mereka hadir bagi mereka yang berusaha membeli nasi esok hari lewat tubuh. Mereka hadir bagi mereka yang diancam dibunuh atas nama efek jera dan keadilan. Mereka hadir bagi mereka yang tak memiliki sumber daya untuk membela diri sendiri. Mereka hadir.

Mereka hadir untuk melawan. Melawan sistem peradilan yang korup luar biasa. Melawan narasi umum di tengah masyarakat. Melawan nafsu-nafsu pribadi. Melawan cemooh orang-orang terdekat.

Kemanusiaan harus bersorak karena ia tetap nyata berkat hadirnya para pendekar ini. Mereka yang terus bekerja tanpa diiringi sorot kamera televisi dan tanpa dikejar-kejar kuli tinta. Mereka yang, setelah seharian jungkir balik dari Polsek sampai Mahkamah Agung, bersenda gurau di depan kantor, menikmati hidup yang getir lewat secangkir kopi di ujung bibir, serta menghembuskan segala kelelahan lewat tembakau.

Mereka mungkin bukan pendekar dengan pedang yang paling tajam. Mereka mungkin bukan pendekar dengan wajah paling tampan. Mereka tidak sempurna. Tapi hati mereka luar biasa lebar dan oleh karenanya ada baiknya kita berkata:

Terima kasih.

Ditulis oleh: Yohan David Misero

No One Should Be Executed for Drug Offenses

Jokowi Should Halt Executions Under Indonesia’s Corrupt Judicial System

This piece was authored by Asmin Fransiska, was co-authored by Ricky Gunawan, and was published in The Conversation on 16 Februari 2015. 

In Indonesia, the fate of death row convicts lies largely in the hands of the country’s president, who can decide to spare their lives after examining their clemency requests.

Indonesian President Joko Widodo, popularly known as Jokowi, seemed to have made up his mind to kill more than 60 drug convicts as he pledged to reject their clemency requests even before they arrived. He argued it would be a “shock therapy” to solve a national drug “emergency”.

Last month, six drug convicts were shot dead as part of Jokowi’s anti-drug “therapy”. Another 11, including Bali Nine duo Andrew Chan and Myuran Sukumaran, face imminent executions.

Jokowi’s blanket rejection is a blatant violation of Article 6 of the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a state party. It states that “anyone sentenced to death shall have the right to seek pardon or commutation of the sentence\”.

As president of a country with an imperfect and corrupted judicial system, Jokowi should know that the human cost of the death penalty is too high to be used as a solution for crimes. Taking someone’s life is irreversible.

Brutal murderers and drug kingpins should receive the heavy penalty. However, such punishment should be carried out humanely to reflect the degree of our human civilisation. Examples of unfair trials irrefutably show that in deciding the fate of a death row convict, Jokowi should firmly uphold human rights principles.

Pervasive unfair trials

In Indonesia, police torture and unfair trials are pervasive. This happens in cases that are punishable by the death penalty.

In 2004, a Nigerian – Tony (not his real name) – was convicted for drug dealing. When the police came to Tony’s home, he was not there. The police told Tony that they wanted to search his place.

Tony came voluntarily. Were Tony really involved in drug dealing, he could have escaped. Instead, he chose to come back to his place.

Tony said the police tortured him to confess that the drugs found in his place were his. He never had adequate legal representation throughout his legal proceedings, during which he had to contend with a poor interpreter and dubious evidence.

The court’s conclusion that Tony committed drug dealing was racially biased:

… black people from Nigeria are often monitored by the police because they often deal drugs in Indonesia in a neat and secretive way.

The court sentenced Tony to death.

In 2005, two Indonesians, Ruben Pata Sambo and his son Markus, were sentenced to death for premeditated murders. The case against them was highly fabricated. They were both tortured by the police to confess to a crime they never committed.

In 2006, the real perpetrators provided written testimonies that Ruben and his son were never involved in the murders. The two men are still on death row.

In 2013, a European national was arrested for drug offences. During police investigations, he was assisted by at least three different lawyers, all of whom only had interest in his money. The lawyers extorted money from him.

From the investigations up to the court hearings, the defendant was not assisted with a proper legal defence. The court sentenced him to death without him having meaningful legal assistance.

These cases shows how the Indonesian legal apparatus ignores minimum procedural and evidential guarantees of fair trials. Supporters of the death penalty may argue that these are a minority of cases, which do not represent the overall picture of death penalty cases in Indonesia. But that these cases exist and human lives are at stake in the face of corruption and unfair trials means that a closer examination of all death penalty cases in Indonesia is a must.

Moratorium on death penalty

Even though Jokowi firmly believes in the death penalty as a crime deterrent – at least for now – he must revise his policy on blanket rejection of clemency appeals. He must seriously and meticulously review all death penalty cases.

The UN Safeguards guaranteeing the protection of the rights of those facing the death penalty state:

Capital punishment may be imposed only when the guilt of the person charged is based upon clear and convincing evidence leaving no room for an alternative explanation of the facts.

Jokowi must conform to this standard. If there is a single doubt that a death row convict was sentenced to death because of weak evidence, case fabrication, torture, judicial extortion/bribery, no adequate legal aid, or no proper translation, the sentence should be commuted.

While a review is undertaken, Indonesia must apply a halt to executions. Through this careful review, Jokowi’s eyes may be opened to the ugly side of Indonesia’s justice system: that our system is so broken and dysfunctional that human life should never be the price.

Mass Executions of Drug Offenders Won’t Help Indonesia

This piece was written by Ricky Gunawan and Ajeng Larasati and was published in Open Society Foundation on 23 January 2015.

Indonesian President Joko “Jokowi” Widodo was elected in July 2014. Hailed as a man of the people, his campaign was built on a platform of human rights. He updated Jakarta’s drainage system, kick-started health care reform, and built a reputation as a leader who implements policies based on pragmatism and common sense.

But on January 18, Jokowi placed himself in a category of his own: he became the first president of Indonesia to execute six people in one night since the country’s democratic reformation in 1998.

The people sentenced to death were people convicted of drug trafficking. Five of the six were foreigners, which prompted a swift and emphatic international outcry. Three of the countries whose citizens were among the executed recalled their ambassadors from Indonesia, and several advocacy groups condemned the executions in no uncertain terms.

The uproar is well founded—using the death penalty to solve a country’s drug problems is not a solution at all. The Community Legal Aid Institution in Jakarta, Lembaga Bantuan Hukum Masyarakat (LBHM), worked tirelessly to stop Sunday’s executions. On January 16, LBHM and the leaders of drug-user communities hand-delivered an open letter to the presidential palace.

In the letter they made it clear that Jokowi’s decision to employ the death penalty would not help alleviate Indonesia’s drug problems—in fact, it’s likely to make them worse. Since capital punishment for drug offenses was introduced in 1997, drug crimes have risen, not fallen. And those being executed aren’t the ones driving the illicit drug trade. Some of the traffickers who are sentenced to death are merely drug mules, many of them coerced into carrying the substances they were arrested with, or unaware that they were carrying them at all.

Furthermore, executing people used as drug mules only exacerbates the vulnerability of drug users, because when the state executes a drug mule, kingpins must find a new one. These new traffickers are consequently pulled further away from health services, harm reduction programs, and support—the very mechanisms that could help them reclaim their lives from addiction.

Despite all this evidence to the contrary, Jokowi has said that the executions represent his government’s firm commitment to the fight against drugs, and that more executions will follow. In addition, he’s vowed not to grant clemency to any of the 64 convicted traffickers on death row, even though a blanket rejection of clemency is a violation of Indonesia’s commitment under the International Covenant on Civil and Political Rights. A blanket rejection of clemency also breaches the core principle of criminal law, which requires every case to be considered on its individual merits.

Political observers have speculated that Jokowi’s hard line on executions—out of step with his relatively progressive agenda—is intended to satiate conservative elements of his government. If that’s truly the case, it represents a stunning display of opportunism, as people are literally sacrificed in the name of political maneuvering.

LBHM’s campaign is aligned with the UN Human Rights Committee, UN Office on Drugs and Crime, and UN Special Rapporteur on extrajudicial, summary, or arbitrary executions. All have stated that executions for drug offences are in violation of international human rights law.

We at LBHM feel the weight of these threatened executions acutely. Since 2008, we have assisted Francis (not his real name), a Nigerian citizen sentenced to death for possession of heroin. Francis has exhausted all his legal avenues of appeal and is relying on presidential clemency for his life—a hope that appears dim for those convicted under the Jokowi administration.

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.