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Caveat - Volume February-March 2014 - LBH Masyarakat

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In this edition, Muhammad Afif Abdul Qoyim, an LBH Masyarakat’s caseworker, writes an article analyzing the possibility of the detainees, who are detained in police stations or other law enforcement …

In this edition, Muhammad Afif Abdul Qoyim, an LBH Masyarakat’s caseworker, writes an article analyzing the possibility of the detainees, who are detained in police stations or other law enforcement agencies’ detention center, losing their right to vote. This is because the Election Committee does not seem very well prepared in securing their right to vote. He emphasizes, in the “Human Rights, Law, and Politics” column, the Election Committee must not only focus on the statutory election violations, – either those came from the political parties or the political candidates, but they also must be concerned with the detainees’ right to vote and to ensure that right is guaranteed, this is because right to vote is one of citizen’s rights protected by the Indonesia’s Constitution.
In the “Human Rights, HIV, and Drugs Policy” column, Aditiya Putra – an LBH Masyarakat’s Human Rights and Law program officer, writes an article about the new Indonesian social security and health care regulation. He criticizes this regulation on the ground that it is very discriminative against drug users. He argues that social security should be given equally to all citizens – a principle of universal coverage. However, contrary to this principle, the government, by enacting this regulation of social health security, the drug users will potentially be excluded from accessing that social security system. This is a discriminatory policy and it violates drug users’ right to health, as Aditiya argues.
Also, in this column, Ratna Dyah Kusumadewi, a legal intern at LBH Masyarakat, analyzes the inconsistencies of drug rehabilitation verdicts in Indonesia. She critically analyzes three different courts decisions. She pinpoints cases and rules, which could be precedents for judges to enforce rehabilitation based judgment for drug offenders, who are in need for drug treatments. She also recommends that judges should not merely interpret laws in black letter laws but also looking at the individual circumstances of each case for the interest of justice.
The last but not the least, Albert Wirya – an LBH Masyarakat’s volunteer and currently completing criminology studies at the University of Indonesia, will share his experience on working on a criminal casework, which the LBH Masyarakat is the clients’ legal representative. The case is
4 CAVEAT | February - March 2014
about a group of fishermen who are suspected trying to smuggle foreigners into Australia. In
“From Our Archive” column, Albert analyzes the case from the point of views of criminology. In
his essay, Albert focuses on the law enforcement performance when working on an organized
crime, which he argues that they might wrongfully prosecute minors but ironically fail to catch
the ‘big fish’.

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  • 1. Volume February - March 2014 LBH Masyarakat presents you the February - March 2014 edition. EDITOR’S NOTE Experts in education argue that knowledge is impossible to measure. Even the Intelligent Quotient (IQ) Test – often used as a measure of intelligence – has questionable validity. Despite the fact that our formal education system believes that a student’s knowledge can be accurately calculated by tests and exams, it is broadly accepted that knowledge is a characteristic that is particularly difficult to ascertain because it exists solely within the human mind. Chain of Ignorance FROM OUR ARCHIVE Since the enactment of Law No. 40 Year 2004 regarding the National Social Security System, the Government of Indonesia has attempted to implement a policy that provides social security for all individuals in Indonesia. The proposed policy is a mandate of the Constitution of Indonesia, particularly Article 28H paragraph (3) on the right to social security and Article 34 paragraph (3) which stresses the state’s obligation to provide health service facilities. A Brief Critical Review of Indonesia’s Health Care and Social Security Systems HUMAN RIGHTS, HIV, AND DRUG POLICY #1 Accessible and good quality drug treatment should be made available for people who use drugs. This is in accordance with the spirit of the section 4(d) of the Law No. 35/2009 on Narcotics. In the article, it states that one of the aims of the Narcotics Law is to guarantee the provision of medical and social rehabilitation for people who use drugs. The objective of this statutory rehabilitation seems to propose new paradigm in looking at drug addiction problems. Section 54 of the Law states that drug users have to undergo medical or social rehabilitation. The Inconsistencies of Drug Rehabilitation Verdict HUMAN RIGHTS, HIV, AND DRUG POLICY #2 Amidst the hustle and bustle of 2014 legislative elections, one group of citizens seems to be overlooked by everyone – political parties, election bodies and the public at large. They are police detainees whose political rights, despite the legal limitations to their freedom of movement, are constitutionally guaranteed. Unfortunately, despite such guarantees they are at risk of losing their right to vote as a result of the conditions they are in. The Right to Vote of Detainees: Between Constitution and Inconsistency HUMAN RIGHTS, LAW, AND POLITICS Lembaga Bantuan Hukum Masyarakat Tebet Timur Dalam III, No. 54A Jakarta 12820, INDONESIA P. +62 21 830 54 50 F. +62 21 8370 99 94 E. contact@lbhmasyarakat.org, caveat@lbhmasyarakat.org http://www.lbhmasyarakat.org
  • 2. CAVEAT | February - March 20142 CAVEAT is published by the Community Legal Aid Institute (LBH Masyarakat), Jakarta, Indonesia. All rights reserved. Neither this publication nor any part of it may be reproduced without prior permission of the LBH Masyarakat. This publication is supported by the Levi Strauss Foundation. The content of this publication does not necessarily reflect the opinion or position of the Levi Strauss Foundation. CAVEAT welcomes any feedback and contributions. If you are interested in contributing a guest editorial piece or article, please contact us at contact@lbhmasyarakat.org or caveat@ lbhmasyarakat.org LBH Masyarakat welcomes any financial contribution for the development of CAVEAT. Name : Lembaga Bantuan Hukum Masyarakat Bank : Bank Mandiri Branch : Tebet Timur, Jakarta, Indonesia No. Acc. : 1 2 4 – 0 0 0 – 5 0 3 – 6 6 2 0 Swift Code : B M R I I D J A CONTENTS EDITOR’S NOTE ........................................... 3 HUMAN RIGHTS, LAW, AND POLITICS......... 5 The Right to Vote of Detainees: Between Constitution and Inconsistency HUMAN RIGHTS, HIV, AND DRUG POLICY.. 11 A Brief Critical Review of Indonesia’s Health Care and Social Security Systems HUMAN RIGHTS, HIV, AND DRUG POLICY.. 17 The Inconsistencies of Drug Rehabilitation Verdict FROM OUR ARCHIVE................................. 22 Chain of Ignorance MANAGING EDITOR: Ricky Gunawan EDITORIAL BOARD: Andri G. Wibisana, Dhoho Ali Sastro, Ajeng Larasati, Antonius Badar, Yohan David Misero, Cendy Adam, Aditiya Putra M. Afif Abdul Qoyim, Riki Efendi. FINANCE AND CIRCULATION: Ahmad Zaki, Dede Khaerudin, Herlina. REVIEWER: Miki Salman, Louise McNeil, Siti Munafiah Walker. ADDRESS: Tebet Timur Dalam III, No. 54A Jakarta 12820, INDONESIA Phone : +62 21 830 54 50 Fax : +62 21 8370 99 94 E-mail : contact@lbhmasyarakat.org, caveat@lbhmasyarakat.org Website : www.lbhmasyarakat.org DESIGN AND LAYOUT: Hari Cahyono
  • 3. CAVEAT | February - March 2014 3 EDITOR’S N O T E Welcome to the 2014 February-March edition of CAVEAT. In this edition, Muhammad Afif Abdul Qoyim, an LBH Masyarakat’s caseworker, writes an article analyzing the possibility of the detainees, who are detained in police stations or other law enforcement agencies’ detention center, losing their right to vote. This is because the Election Committee does not seem very well prepared in securing their right to vote. He emphasizes, in the “Human Rights, Law, and Politics” column, the Election Committee must not only focus on the statutory election violations, – either those came from the political parties or the political candidates, but they also must be concerned with the detainees’ right to vote and to ensure that right is guaranteed, this is because right to vote is one of citizen’s rights protected by the Indonesia’s Constitution. In the “Human Rights, HIV, and Drugs Policy” column, Aditiya Putra – an LBH Masyarakat’s Human Rights and Law program officer, writes an article about the new Indonesian social security and health care regulation. He criticizes this regulation on the ground that it is very discriminative against drug users. He argues that social security should be given equally to all citizens – a principle of universal coverage. However, contrary to this principle, the government, by enacting this regulation of social health security, the drug users will potentially be excluded from accessing that social security system. This is a discriminatory policy and it violates drug users’ right to health, as Aditiya argues.  Also, in this column, Ratna Dyah Kusumadewi, a legal intern at LBH Masyarakat, analyzes the inconsistencies of drug rehabilitation verdicts in Indonesia. She critically analyzes three different courts decisions. She pinpoints cases and rules, which could be precedents for judges to enforce rehabilitation based judgment for drug offenders, who are in need for drug treatments. She also recommends that judges should not merely interpret laws in black letter laws but also looking at the individual circumstances of each case for the interest of justice. The last but not the least, Albert Wirya – an LBH Masyarakat’s volunteer and currently completing criminology studies at the University of Indonesia, will share his experience on working on a criminal casework, which the LBH Masyarakat is the clients’ legal representative. The case is
  • 4. CAVEAT | February - March 20144 about a group of fishermen who are suspected trying to smuggle foreigners into Australia. In “From Our Archive” column, Albert analyzes the case from the point of views of criminology. In his essay, Albert focuses on the law enforcement performance when working on an organized crime, which he argues that they might wrongfully prosecute minors but ironically fail to catch the ‘big fish’. Your comments and feedback are, as always, welcomed and appreciated. We hope you will find CAVEAT useful in providing in-depth analyses and discussions on alternative perspectives of human rights situations in Indonesia that may have been unnoticed. ~ The Editor ~
  • 5. CAVEAT | February - March 2014 5 The Right to Vote of Detainees: Between Constitution and Inconsistency HUMAN RIGHTS, LAW, AND POLITICS By: Muhammad Afif1 Background Amidst the hustle and bustle of 2014 legislative elections, one group of citizens seems to be overlooked by everyone – political parties, election bodies and the public at large. They are police detainees whose political rights, despite the legal limitations to their freedom of movement, are constitutionally guaranteed. Unfortunately, despite such guarantees they are at risk of losing their right to vote as a result of the conditions they are in. The right to vote is the embodiment of political rights of citizens in a democracy. All efforts should be made, therefore, to guarantee and protect citizen’s participation in elections, regardless of any limitations to their freedom of mevement. Not fulfilling these important political rights in these elections can seriously undermine democracy itself. Statutory laws provide strong guarantees to political rights of citizens in general and detainees in particular. Article 27 paragraph (1) of the 1945 Constitution affirms that all citizens are equal before the law and the government without exceptions. Article 28 I paragraph (2) of the 1945 Constitution also states that every person is entitled to be free from any discriminatory treatment and to protection against such discriminatory treatment. Moreover, the right to vote is also regulated in several legislations, including article 43 paragraph (1) Law no. 39 of 1999 regarding Human Rights2 and article 19 paragraph (1) Law no. 8 of 2012 regarding Election of Members of the House of Representatives (DPR), Regional Representatives Council (DPRD), and the Regional Representatives Council (DPD).3 Article 40 Law 8/2012 essentially states that the election administrators shall make a supplementary voters list for those who, due to certain circumstances, cannot exercise their 1 Muhammad Afif is a public defender at LBH Masyarakat. 2 “Every citizen has the right to be chosen and to vote in elections based on equality through voting that is direct, public, free, confidential, honest, and fair in accordance with the provisions of the legislation”. 3 “a citizen of Indonesia who on the day of the election is of 17 years (seventeen) years of age or more or is/has been married, has the right to vote”.
  • 6. CAVEAT | February - March 20146 voting rights, including such circumstances as detainee status, illness, or those affected by natural disasters. KPU has also issued KPU Regulation No. 9 of 2013 regarding Voters List. Chapter VII of the Regulation about the Special Voters List explicitly provides the specific mechanism for implementing political rights of detainees. Unfortunately, despite the strong guarantees and specific mechanisms prescribed in the aforementioned laws and regulations to guarantee detainees’ political rights, including the right to vote, it does not seem that they have been effective to genuinely guarantee these rights – as this essay seeks to argue. Political Rights of Detainees are at Risk Fifteen years since the Reformasi movement marked the end of authoritarian rule in Indonesia, its democracy still faces many challenges. One of the legacies of the New Order regime, among other things, is the persistent culture among state agencies of not involving citizens in policy making or decisions that impacts citizens’ lives. The lack of genuine recognition of equality of citizens in participating in the political process still characterizes and undermines democracy in Indonesia. However, despite its young democracy, Indonesia has made important inroads towards building a strong democratic system by building institutions to uphold the rule of law – an essential element of democracy. Since Reformasi, Indonesia has established the Constitutional Court as the bastion of constitution, the Corruption Eradication Committee (KPK) with its strong and consistent anti-corruption drive that has done much to improve democracy in Indonesia. Importantly, Indonesia’s civil society has also gained strength. In fact, according to many metrics, Indonesia has one of the most active and vibrant civil societies in the region that engages and watches the course of state administration. Indonesia also successfully held several general elections in the post-authoritarian era – in 1999, 2004 and 2009 – that were relatively safe, orderly and peaceful, without any significant unrest or other disturbance. Many have praised Indonesia’s achievement in this regard, and reasonably so, as many post-authoritarian countries, particularly in Asia, have not been as successful in running honest and peaceful elections. Such massive elections have been successful not only at the national level for presidential and legislative elections, but also for the elections of head of regencies, municipalities and provinces. In 2013, there have been no less than 152 local elections all over Indonesia.4 However, a glimpse of news surrounding this election shows that citizens’ political rights violations are still widespread, both at the local and national level. There are a number of ways how such violations can occur, including: 1. Rejection of candidacy (right to be a candidate); 2. Omission of citizens from the Permanent Voter List (DPT); 3. Citizens who have been registered in the DPT but did not get the invitation to vote; 4 Source: http://www.adeksi.or.id/detail_berita.php?no=228, accessed on March 13, 2014.
  • 7. CAVEAT | February - March 2014 7 4. Intimidations by candidate supporters to coerce people into voting for certain candidates; 5. Unused ballots that are counted, disadvantaging certain candidates. Much attention has been given to violations as described above. However, one thing seems to escape the attention of everyone: the deprivation of detainees’ right to vote, particularly while under police custody. The fact that the freedom of movement of detainees is limited should not mean that other basic rights would limit by their status as detainees. Their right to vote remains and is unrestricted, and clearly there is no legal provisions providing such restrictions (or even revocation) as a result of being a detainee. The political rights of detainees are affirmed in the Explanation to Article 14 paragraph 1(m) of Law No. 12 of 1995 about Correctional Services, stating: “What is meant by “other rights” are political rights, the right to vote, and other civil rights”. Deprivation of detainees’ rights can occur in several ways: 1. Detainees are not registered at all in the DPT list; 2. Detainees are registered in the DPT list but could not exercise their right because the Detention Facility’s address is different from the detainees’ address on the DPT list; 3. Detainees could have exercised their voting rights if not for the administrative requirements of having to present IDs (KTP/KK). The following table presents a summary of media reports on cases where detainees could not exercise their voting rights in the period of the 2012-2013 elections: 5 6 No Period Area Modus 1 2012 KPU Jakarta Province In the election of the Governor and Vice Governor of Jakarta which lasted two rounds in 2012, facts were found that detainees in the Jakarta Metropolitan police, except Bekasi district police, Bekasi City police, Depok district police, Tangerang district police and City of Tangerang district police, could not exercise their political rights. 2 2013 KPU Papua Province In the election of the Governor and Vice Governor of Papua Province there were findings that hundreds of detainees in the Papua Province’s district and subdistrict police could not cast their votes and exercise their political rights.5 3 2013 KPU Maluku Province In the election of the Governor and Vice Governor of Maluku Province there were findings that several vulnerable groups, including detainees, could not exercise their rights in that election.6 5 Source:http://www.jpnn.com/read/2011/06/23/96061/index.php?mib=berita.detailid=156535, accessed on March 6, 2014. 6 Source:http://www.komnasham.go.id/profil-8/profil-13/perwakilan-maluku/415-keterangan-pers-komisi-nasional- hak-asasi-manusia-komnas-ham-tentang-pelaksanaan-pemilihan-umum-gubernur-maluku, accessed on March 6, 2014.
  • 8. CAVEAT | February - March 20148 4 2013 KPU East K a l i m a n t a n Province In the election of the Governor and Vice Governor of East Kalimantan there were reports that detainees of the Penajam Paser Utara (PPU) district police could not cast their votes.7 6 2013 KPU North S u m a t r a Province In the election of the Governor and Vice Governor of North Sumatra Province the voter turnout was low. Some detainees, who were recently transferred from Police Detention to the State Prison, could not exercise their political rights.8 7 2013 KPU West Java Province In the election of the Governor and Vice Governor of West Java Province, many police detainees in the West Java provincial police jurisdiction, including detention centers in City of Bekasi police, Bekasi District police, Depok District police, could not exercise their political rights. 78 These cases provide an overall picture about how the state observes the detainees’ political rights. Detainees’ voting rights are guaranteed by law, as stipulated in the Explanation to Article 14 paragraph 1 (m) of Law No. 12 of 1995 regarding Correctional Services: “What is meant by “other rights” are political rights, voting rights, and other civil rights”. The existence of a constitutional guarantee and the above provisions captures, essentially, the heart of policy formulation regarding the fulfillment of voting rights of detainees. One of the best examples in this regard was the practice of the East Java General Election Committee (KPU) in the 2013 elections of the Governor and Vice Governor for 2013-2018. East Java Election Committee issued a policy, Document No. 211.03/KPU-Prov-014/VIII/2013, of August 26, 2013, regarding Implementation of Voting Rights for Inpatients, Prisoners, Police Detainees, and On- Duty Professionals. It was reinforced by Circular No. 220.02/KPUProv-014-/PKD.JTM/VIII/2013, of August 28, 2013. It states, essentially, that police detainees are entitled to use their voting rights provided that the Voting Administrators (KPPS) do the rounds to pick up and deliver the right to vote for the police detainees.9 The East Java is an example of a good practice by election administrators to fulfil the voting rights of detainees. That said, East Java may be an exception rather than the rule. One can cite, again, the Jakarta Governor and Vice Governor election in 2012 as a worrisome example where detainees lost their right to vote in 13 municipal detention facilities, 109 sub-district detention facilities, and a detention facility at the Jakarta Metropolitan Police and the National 7 Source:http://www.tribunnews.com/regional/2013/09/10/delapan-tahanan-di-polres-penajam-ikut-mencoblos, accessed on 6 Maret 2014. 8 Source: http://sumutpos.co/2013/03/53794/402-penghuni-rutan-tak-bisa-nyoblos, accessed on March 6, 2014. 9 Source:http://news.detik.com/surabaya/read/2013/08/22/235125/2338077/466/para-tahanan-gunakan-hak-suara- melalui-tps-keliling, accessed on March 13, 2014. The same news could be found on http://www.surabaya. go.id/berita/detail.php?id=23323, accessed on March 13, 2014, and http://kelanakota.suarasurabaya.net/ news/2013/123453-Tahanan-Siap-Nyoblos-di-Pilgub-Jatim-, accessed on March 13, 2014.
  • 9. CAVEAT | February - March 2014 9 Police Headquarters in DKI Jakarta administrative area.10 The election in DKI Jakarta could serve as a reflection about elections in other regions of Indonesia. If detainees in DKI Jakarta are deprived of their political rights, imagine what the situation would like in places farther away where observers and election monitoring resources are even scarcer. Certainly, it would require further studies to confirm this whether this prospect is true. Inconsistency on Constitutional Mandate The biggest challenge for election administrators in executing quality elections is not only in spotlighting violations by political parties – including criminal election violations11 – and minimizing such violations, but also to accommodate the interests of citizens who voluntarily cast their votes. For the 2014 elections KPU has targeted a 75% turnout, an increase of 5% from the 2009 general elections. However, this time, voter turnout has actually fallen further compared to the participation in the 2004 general elections12 and 1999 general elections13 . Ensuring citizen participation is something that can be anticipated and solved. However, thus far, citizen participation, especially protecting detainees’ right to vote, has scarcely been addressed. This situation is in reference to the 2,700 detainees in detention facilities under the jurisdiction of Metro Jaya being at risk of losing their right to vote.14 The treatment of election administrators that leads to detainees as citizens losing their right to vote can be categorized as a form of discrimination and a violation of political rights of citizens. It is not for lack of legal instruments and mechanisms, as many are already available, but because KPU and Bawaslu have not been paying serious attention to protect detainees’ right to vote. Conclusion and Recommendations Violations to the right to vote have been in the media spotlight from year to year. However, there has not been much follow through or any serious response to this situation. What often materializes, instead, is that detainees are practically isolated from the democratic process, despite the constitutional and statutory law guarantees. To ensure that no such violations of detainees’ voting rights occur in the future, election bodies must develop an action plan to ensure that detainees are able to vote at police detention centers. One example to facilitate this is presenting some form of identification (either KTP/KK) as the administrative requirement to exercise the right to vote in elections. This can be achieved 10 Source:http://www.tempo.co/read/news/2012/07/11/228416290/Tahanan-Polda-Metro-Kehilangan-Hak-Pilih, accessed on March 14, 2014. 11 See:http://pemilu.sindonews.com/read/2014/03/05/113/841528/demokrat-gerindra-ppp-diduga-langgar-pidana- pemilu, accessed on April 2, 2014; see http://indonesiasatu.kompas.com/read/2014/04/03/0952519/partai. demokrat.terancam.pidana.pemilu?utm_source=WPutm_medium=boxutm_campaign=Kknwp, accessed on 3 April 2014; see http://pemilu.sindonews.com/read/2014/03/05/113/841528/demokrat-gerindra-ppp-diduga- langgar-pidana-pemilu, accessed on 2 April 2014. 12 Source:http://news.detik.com/pemilu2014/read/2014/04/01/134826/2541988/1562/1/apakah-target-partisipasi- pemilih-75-pemilu-2014-bisa-dicapai, accessed on April 2, 2014. 13 Source:http://nasional.kompas.com/read/2011/10/19/22585240/Tingkat.Partisipasi.Pemilih.Terus.Merosot, accessed on April 2, 2014. 14 Source:http://www.tribunnews.com/nasional/2014/04/04/2700-tahanan-di-wilayah-polda-metro-terancam- kehilangan-hak-pilih, accessed on April 4, 2014.
  • 10. CAVEAT | February - March 201410 by an MoU between KPU and National Police, as the institution responsible for guaranteeing the security and safety of the detainees. The Police, most certainly, should know the identities/ origins of detainees under their custody. There is no reason that they cannot ensure that persons under their custody are, in fact, lawful voters to be able to put them on the list of supplementary voters as specified in KPU Regulation No. 9 of 2013. KPU and the Police could setup voting booth in detention centers for that purpose. Alternatively, KPU can also come to detention centers to pick up the votes cast by detainees, following the good precedent set by the KPU of East Java Province.
  • 11. CAVEAT | February - March 2014 11 HUMAN RIGHTS, HIV, AND DRUG POLICY 1# 1 By: Aditiya Putra2 Since the enactment of Law No. 40 Year 2004 regarding the National Social Security System, the Government of Indonesia has attempted to implement a policy that provides social security for all individuals in Indonesia. The proposed policy is a mandate of the Constitution of Indonesia, particularly Article 28H paragraph (3) on the right to social security and Article 34 paragraph (3) which stresses the state’s obligation to provide health service facilities. In accordance with the provision of social security enshrined in the Constitution, the Indonesian People’s Consultative Assembly (MPR RI) issued a Decree No. X/MPR/2001 which assigned the President of Indonesia the task of establishing a National Social Security System aimed at providing a comprehensive and integrated social security system.3 Furthermore, in 2011 the Indonesian People’s Representative Council (DPR RI) passed a Law No. 24 regarding the Social Security Agency which complements the National Social Security System Law. According to the Social Security Agency Law, the Health Care Agency (BPJS Kesehatan) was to be established and start operating from 1 January 2014.4 To support the implementation of the BPJS Kesehatan, the government was obliged to pass a number of derivative regulations, one of which is the Presidential Regulation No. 12 Year 2013 regarding Health Security, then amended by the Presidential Regulation No. 111 Year 2013. In both of the Presidential Regulations there is a provision that excludes health security for persons with drug and/or alcohol dependence.5 It should be noted that the purpose of BPJS Kesehatan is to guarantee the provision of health care to all people in Indonesia6 without any exceptions – this isn’t the case for people who use drugs and alcohol, however. 1 Known as Badan Penyelenggara Jaminan Sosial Kesehatan, BPJS Kesehatan. 2 Aditiya Putra is a human rights and law program officer in LBH Masyarakat (Community Legal Aid Institute). 3 Law No. 40 Year 2004 regarding the National Social Security System, General Stipulation, para. 2. 4 Law No. 24 Year 2011 regarding the Social Security Agency Art. 60. 5 President Regulation Number 12 Year 2013 regarding the Social Health Security, then amended by the President Regulation Number 111 Year 2013, Art. 25 letter i. 6 Desk Informasi, “Mulai 1 Januari, Seluruh Rakyat Dijamin Berobat oleh BPJS”, http://www.setkab.go.id /berita- 11608-mulai-1-januari-seluruh-rakyat-dijamin-berobat-oleh-bpjs.html, accessed on 24 February 2014. A Brief Critical Review of Indonesia’s Health Care and Social Security Systems1
  • 12. CAVEAT | February - March 201412 The policy, which excludes health insurance for individuals who suffer from health problems as a result of drug dependence, seems to discriminate against certain groups. The situation is even more alarming given that in 2009 there were 3.3 million drug users, but only 0.5 percent received treatment.7 Therapy and rehabilitation services which are affordable in terms of cost and availability in Indonesia are still limited in number.8 The exclusion policy above raises a concern from two perspectives: insurance and the right to health. Health Care: An Insurance Perspective It should be understood why everyone should have health insurance – health insurance is a way of overcoming risks and uncertainty as well as cost implications. Insurance helps people reduce the risk for individuals and shift such risk to a group of people in a pooling manner. In the context of insurance law, there are three key principles: a. Insurable Interest Insurable interest is the reasonable concern of a person to obtain insurance for any individual or property against unforeseen events such as death, losses, etc. Insurable interest arises from, for example, ownership relations, family/work relationships, agreement, etc. b. Utmost Good Faith Each party is required to disclose any material fact or facts that might impact on insurance coverage of an object (duty of disclosure) and is prohibited from making false or incorrect statements (misrepresentations) in the insurance agreement. If the obligations and prohibitions are violated, the insurance agreement can be canceled, even if the insured candidate shows good faith during the process of contract.9 c. Indemnities and Proximate Cause As an indemnity agreement, the insurer has a duty to recover losses suffered by the insured.10 For the proximate cause principle, this principle can be interpreted as the closest cause with the risk. Recently, the meaning of proximate cause is defined as “dominant cause”.11 The above three principles are important because they can prevent the spread of moral hazard by stopping people from profiting from the insurance agreement.12 In addition to the above principles, there are criteria that help guide the specific operations of health insurance, such as:13 7 Hertanto Soebijoto (ed.), “Hanya 0,5 Persen yang Dapat Layanan”, source http://megapolitan. kompas. com/ read/2010/12/06/14062282/ Hanya.0.5.Persen.yang.Dapat.Layanan, accessed on 26 January 2014. 8 Ibid. 9 Ibid., p. 31. 10 Ibid., p. 49. 11 Ibid., pp. 54-55. 12 See, for example, Kornelius Simanjuntak, Brian A. Prasetyo, Myra R.B. Setiawan, Hukum Asuransi, Depok: Djokosoetono Research Center FHUI, 2011, pp. 25-28. 13 See, for example, Yaslis Ilyas, Asuransi Kesehatan-Review Utilisasi, Manajemen Klaim dan Fraud (Kecurangan Asuransi Kesehatan), Depok: Fakultas Kesehatan Masyarakat, 2003, p.14.
  • 13. CAVEAT | February - March 2014 13 a. Health insurance is a health financing system that works on the concept of risk transfer. It can work as long as the person who wants to join health insurance is not sick. b. In the health insurance system, the risk of becoming sick is jointly covered by the participants through paying a premium to a company. In other words, the function of insurance is to transfer risk from one individual to the group and share the amount of loss by a fair proportion among the whole group. c. The health insurance business should be based on risk management with the following process: define the purpose, identify the risk, evaluate the risk, then searching risk management, implementing and evaluating risk reduction. With this risk management approach, it can be concluded that if one has a serious risk, one should pay the more expensive premium. In relation to the necessity of health insurance itself, supporters of social justice disagree with social security depending on the existence of private health insurance which, by its nature, is profit-oriented.14 They are of the view that it is the obligation of the government to provide health services for its own people. The implementation can occur in varying models. Either, for example, the government manages health services directly or through a non-profit organization which is financially supported by the government. This way, risk pooling can be done in a large group. Given that government-based social health insurance obligates all people to participate in the social health insurance program, it is therefore unlikely that bias selection will take place in the social health program.15 In Indonesia, BPJS Kesehatan has run the social health insurance program since 1 January 2014. BPJS Kesehatan aims to provide health insurance for every single person in Indonesia, including foreigners who work a minimum of six months in Indonesia as long as they pay the premium.16 The service provided by BPJS Kesehatan is comprehensive (it includes preventive, promotion, curative and rehabilitative measures) regardless of the amount of the premium paid by the participants.17 Health Care: A Right to Health Perspective Thedefinitionandcontentoftherighttohealthcanbefoundininternationallaw.TheInternational Covenant on Economic, Social and Cultural Rights (ICESCR) article 12 states that everyone has the right to health. The right to health contains two elements: the first is about health care, and the second is about the basic requirement for health.18 In addition to these elements, the UN Committee on Economic, Social and Cultural Rights (which oversees the implementation of the ICESCR by States Parties) has issued a framework to guide the application of the right to health, which is as follows: 14 Hasbullah Thabrany, Introduksi Asuransi Kesehatan, Jakarta: IDI, 1999, p. 56. 15 ‘Bias selection’ occurs when a social health insurance provider conducts either a cream-skimming approach or an adverse selection approach. Cream skimming is an approach where the provider only seeks people whose health risks are low and disregards high risk people, while the adverse selection approach is vice versa. 16 President Regulation No. 12 Year 2013, regarding the Social Health Security Art. 1 para 4. 17 “Jaminan Kesehatan Nasional” http://www.depkes.go.id/index.php?vw=2id=ants_13090 00001, accessed on 26 January 2014. 18 B.C.A Toebes, The Right to Heath as a Human Right in International Law, Intersentia Publisher, 1999, p. 245.
  • 14. CAVEAT | February - March 201414 –– “Availability. Functioning public health and health-care facilities, goods and services, as well as programs, have to be available in sufficient quantity within a State. The precise nature of the facilities, goods and services will vary depending on numerous factors, including the State’s developmental level. They will include, however, the underlying determinants of health, such as safe and potable drinking water and adequate sanitation facilities, hospitals, clinics and other health-related buildings, trained medical and professional personnel receiving domestically competitive salaries, and essential drugs, as defined by the WHO Action Program on Essential Drugs. d. Accessibility. Health facilities, goods and services have to be accessible to everyone without discrimination, within the jurisdiction of a State. Accessibility has four overlapping dimensions: • Non-discrimination: health facilities, goods and services must be accessible to all, especially the most vulnerable or marginalized sections of the population, in law and in fact, without discrimination on any of the prohibited grounds. • Physical accessibility: health facilities, goods and services must be within safe physical reach for all sections of the population, especially vulnerable or marginalized groups, such as ethnic minorities and indigenous populations, women, children, adolescents, older persons, persons with disabilities and persons with HIV/AIDS. Accessibility also implies that medical services and underlying determinants of health, such as safe and potable water and adequate sanitation facilities, are within safe physical reach, including in rural areas. Accessibility further includes adequate access to buildings for persons with disabilities. • Economic accessibility (affordability): health facilities, goods and services must be affordable for all. Payment for health-care services, as well as services related to the underlying determinants of health, has to be based on the principle of equity, ensuring that these services, whether privately or publicly provided, are affordable for all, including socially disadvantaged groups. Equity demands that poorer households should not be disproportionately burdened with health expenses as compared to richer households. • Information accessibility: accessibility includes the right to seek, receive and impart information and ideas concerning health issues. However, accessibility of information should not impair the right to have personal health data treated with confidentiality. - Acceptability. All health facilities, goods and services must be respectful of medical ethics and culturally appropriate, i.e. respectful of the culture of individuals, minorities, peoples and communities, sensitive to gender and life- cycle requirements, as well as being designed to respect confidentiality and improve the health status of those concerned - Quality. As well as being culturally acceptable, health facilities, goods and services must also be scientifically and medically appropriate and of good quality. This requires, inter alia, skilled medical personnel, scientifically approved and unexpired drugs and hospital equipment, safe and potable water, and adequate sanitation.” 19 19 General Comment No. 14 on the Highest Attainable Standard of Health, (Committee on Economic, Social and Cultural Rights, 2000).
  • 15. CAVEAT | February - March 2014 15 At national law, the provision of the right to health can be found in the Constitution of Indonesia20, Human Rights Law21 and Health Law. According to the Health Law, everyone has the right to health.22 As a human right, the right to health is guided by one of its underlying principles: the principle of non-discrimination. This principle is important because it offers a counter-argument against the exclusion policy for people who use drugs in accessing health care services. The non-discrimination principle can be found in the UN Charter,23 Universal Declaration of Human Rights (UDHR)24 and also international covenants such as the International Covenant on Civil and Political Rights (ICCPR)25 and International Covenant on Economic, Social, and Cultural Rights (ICESCR).26 Neither the ICCPR nor the ICESCR specifies the definition of discrimination. However, article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) provides that the term ‘racial discrimination’ shall mean “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Article 1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that the term ‘discrimination against women’ shall mean “any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.” From the definitions of discrimination provided by the ICERD and CEDAW, Li Weiwei argues that a universal composite concept of discrimination can contain the following elements: stipulates difference in treatment; has a certain effect; and is based on a certain prohibited ground.27 Is the Exclusionary Policy of Health Insurance Discriminatory? From an insurance perspective, it is understood that everyone needs health insurance because it can help reduce the risks associated with getting sick. It is a method of ensuring that when one is sick, one is able to afford the cost of health treatment. It is an idea to guarantee the fulfillment of the right to health. Therefore, through BPJS Kesehatan, the Indonesian government must cover all people in Indonesia as a matter of human rights obligation.28 20 See article 34 para (3) the Constitution of Indonesia. 21 Human Rights Law does not explicitly mention the phrase “right to health”. However, article 9 paragraph (1) of the Law which states that “everyone has the right to live, sustain their living, and increase their quality of life” may be interpreted to encompass the content of the right to health. Further, article 49 paragraph (2) mentions the right to health for women, and articles 62 and 64 state that children have the right to health. 22 Ibid., art. 4. 23 See article 1 para (3), article 55 (c), article 56 UN Charter . 24 See article 1, article 2, article 4, and article 7 UDHR. 25 See article 26 ICCPR. 26 See article 2 para (3) and article 3. 27 Li Weiwei, Equality And Non-Discrimination Under International Human Rights Law, (Oslo: University of Oslo, 2004),p. 8. 28 Law No. 36 Year 2009 regarding Health, Art. 4.
  • 16. CAVEAT | February - March 201416 From a human rights perspective, the exclusion policy is discriminatory because a policy which excludes people who use drugs from accessing health insurance – a policy that is intended to implement universal coverage and is essential for someone to access health treatment – will only worsen the condition of people who use drugs. At the moment, it appears that people who use drugs find it difficult to access drug treatment because of financial issues. The presence of BPJS Kesehatan can help them access drug treatment. One may want to understand the rationale behind the decision to have such a policy. One may then question why the government excludes people who use drugs from BPJS Kesehatan. The answer might be that the government is afraid to be seen as taking a weak stance on the drug use problem. One may notice that Indonesia has one of the most draconian drug laws in the world, as well as a massive campaign on the ‘war on drugs’ – which unfortunately is failing and ignoring the rights of people who use drugs. However, if that is the case, it is a rather weak justification, because the issue of drug dependence is a health issue. Therefore, looking at drug use as a moral issue and placing it as an evil that has to be eliminated is not just futile but also an irrelevant argument.1 As a counter-argument, the government could claim that people who use drugs do not necessarily need to access BPJS Kesehatan. Because, they could argue, drug treatment was already available prior to the existence of BPJS Kesehatan. However, people who use drugs almost always fail to obtain drug treatment. As reported in a news article, only eighteen thousand people have accessed treatment out of the estimated four million drug users in Indonesia.2 These conditions not only show the difficulty of accessing drug treatment, but also discourage people from accessing the treatment. Finally, it must be noted that people who use drugs are people with medical issues. As people who are sick, they must have access to health care services. By excluding them from the health insurance program, the government not only discriminates against people who use drugs but also violates their right to health. If BPJS Kesehatan can cover people who use drugs, they will then able to access health insurance and go on to obtain proper and better drug treatment available to them. 1 See article 54 Law No. 35 Year 2009. 2 Pinta Karana, “Pengguna Narkotika di Indonesia Enggan Rehabilitasi”, http://www.bbc.co.uk/indonesia /berita_ indonesia/2014/01/140124_bnn_narkotika_naik.shtml, accessed on 3 April 2014.
  • 17. CAVEAT | February - March 2014 17 The Inconsistencies of Drug Rehabilitation Verdict HUMAN RIGHTS, HIV, AND DRUG POLICY 2# By: Ratna Dyah Kusumadewi1 Background Accessible and good quality drug treatment should be made available for people who use drugs. This is in accordance with the spirit of the section 4(d) of the Law No. 35/2009 on Narcotics. In the article, it states that one of the aims of the Narcotics Law is to guarantee the provision of medical and social rehabilitation for people who use drugs. The objective of this statutory rehabilitation seems to propose new paradigm in looking at drug addiction problems. Section 54 of the Law states that drug users have to undergo medical or social rehabilitation. In addition to the section 54, section 103(1) states that judges can decide or order drug users to undertake drug rehabilitation whether they are proven guilty or not guilty of drug offence. In this article I will examine three High Court decisions where the judges were reluctant to encourage drug users to seek rehabilitation. Those are: Jakarta High Court Judgment No. 208/ PID/2012/PT.DKI, Jakarta High Court Judgment No. 39/PID/2011/PT.DKI, and Surabaya High Court Judgment No. 283/PID/2010/PT.SBY. Brief Cases: Decision No. 208/PID/2012/PT.DKI Hari Antonius was found guilty of possessing 0.0244 grams of heroin as indicted under section 112 of the Narcotics Law. The judges sentenced Hari to six months rehabilitation in Drug Addiction Treatment Hospital (RSKO) Cibubur, Jakarta. Having dissatisfied with the decision, the Prosecutor then filed an appeal to the Jakarta High Court. On this appeal, the High Court approved the South Jakarta District Court’s decision. However, their opinion was different in regard to the sentence. As a result, the judges at the High Court converted the appellant rehabilitation sentence to two years imprisonment. 1 Ratna Dyah Kusumadewi is a legal intern at LBH Masyarakat (Community Legal Aid Institute). She graduated from Faculty of Law, Jember University.
  • 18. CAVEAT | February - March 201418 The High Court argued that section 103 of the Narcotic Law, the Supreme Court Practice Direction No. 4/2010, and the Supreme Practice Direction No. 3/2011 could not be used as grounds for appeal. The reason was that the appellant was proven guilty for violating section 112(1). In another word, the Jakarta High Court was of the view that rehabilitation sentence could not be applied to any defendant who violates section 112(1) of the Narcotic Law. Brief Cases: Decision No. 39/PID/2011/PT.DKI In this case, Anthony was charged by the Prosecutor under section 112(1) of the Narcotics Law for possessing 0.2650 grams of crystal methamphetamine. After examining this case, the South Jakarta District Court stated that the criminal act which had been committed by the defendant made out all the elements characterized in section 127(1) of the Narcotics Law, regardless that section was not indicted by the Prosecutor. Subsequently, the Prosecutor filed an appeal to the Jakarta High Court. The High Court judges overruled the South Jakarta District Court’s decision. The High Court sentenced the defendant to four years imprisonment. In the judgment, the judges stated that the application of section 127(1) of the Narcotics Law, which was based on the defendant’s confession about the use of the narcotics and the explanations from two expert witnesses, was neither right nor wrong. They were of the view that the elements of the section 112(1) in relation to drug possession were been made out. Therefore, the appellant must be found guilty of committing drug offence which is stipulated under section 112(1) of the Narcotics Law. Brief Cases: Decision No. 283/PID/2010/PT.SBY Wahyu Alfian was arrested by police officers when he was trying to throw a pocket of dry leaf marijuana and eight paper sheets. Wahyu was charged by the Prosecutor under section 111(1) and section 127(1) of the Narcotics Law. The Kediri District Court stated that the defendant was guilty of committing drug offence as stipulated under section 127(1) of the Narcotics Law with one year imprisonment and rehabilitation in Lido Rehabilitation Center, in Sukabumi, West Java. The Prosecutor initiated an appeal to the Surabaya High Court because they were dissatisfied with the court’s outcomes. The High Court judges overruled the rehabilitation sentence. They argued that the drug offence, which was committed by the defendant, did not fulfill the Supreme Court Practice Direction on drug rehabilitation verdict for drug offender. Interpreting Section 103 of the Narcotics Law Upon careful examinations of the above High Court decisions, which annulled the previous court decisions imposing rehabilitation for the defendants, there are at least two criteria for the court to impose rehabilitation verdict. First, rehabilitation verdict can only be imposed in violation of section 127(1) of the Narcotics Law. Second, pronouncement of rehabilitation sentence must fulfill the Supreme Court Practice Direction No. 4/2010 on the placement of drug users into
  • 19. CAVEAT | February - March 2014 19 medical and social rehabilitation centers. Nevertheless, these two criteria held by the High Court may not have plausible justification. Section 103 of the Narcotics Law states that: 1. Judges who examine the case of drug users, may: a. Decide to order the concerned individual to undergo treatment and/or care through rehabilitation, if s/he is proven guilty committing a drug offence, or b. Stipulate to order the concerned individual to undergo treatment and/or care through rehabilitation, if s/he is not proven guilty committing a drug offence. 2. The period of treatment and/or care for drug users as described in paragraph (1) letter a, shall be counted as the serving of their sentence. According to the above the section, the criteria for receiving rehabilitation verdict can only be imposed when section 127(1) is violated, and not in accordance to section 103. Section 103 states that rehabilitation order can be imposed to drug users even they are not guilty of committing drug offences. The drug offences in this article are offences that are met the criteria under section 111-148 of the Narcotics Law. There is no article of the drug offences that is excluded from the application of section 103(1)(a) and (b) of the Narcotics Law. In relation to the second criteria in which the judges considered that rehabilitation verdict pronouncement must fulfill the Supreme Court Practice Direction No. 4/201, it is a positive procedure where a drug user can take advantage in the examination process. Hence, it will open a wide opportunity for a drug user to obtain rehabilitation through a court decision. However, the Supreme Court Practice Direction is not unproblematic. There are potential problems that we must assess further. The Supreme Court Practice Direction explains that section 103 is only applicable in certain situation, one of which is there is a presence of a letter from a laboratory assessment which can verify a defendant addiction. This letter should be based on the police request. Practically speaking, this criterion is not easy. In most, or perhaps almost all cases, when drug users are arrested by the police, they are not caught red-handed using drugs. Further, after they are arrested and drugs tested (mostly through urine test), the result is more likely to be negative. One of the reasons is, the accused may not have the chance to use the drugs (because already arrested) or they have already used it but the testing can no longer trace the effect of drugs use in their body. The effect of drugs that remain in human body system is different in each individual. It could depend on various factors such as the person health, the type of drug, how to use the drug and others subjective factors that could make laboratory testing result may not entirely valid. There are other ways to verify whether someone is a drug addiction or not. One of those ways is assessment. If a judge really empathize with a drug user to receive a treatment, to know whether a defendant is a drug user, the judge may want to apply thorough medical assessment not just urine test. This way, a judge can then understand if a defendant is, indeed, a drug addict. In the
  • 20. CAVEAT | February - March 201420 third case – Wahyu’s case – the Eklesia Foundation provided treatment for the defendant since February 2009. They knew that the defendant was in addiction after conducted an assessment on him. This kind of assessment was done through medical and psychological examination to seek characteristics of addiction and seek information from his family members and closest friends. Accordingly, from applying this kind of assessment method, they concluded that Wahyu is in addiction because of/and using drugs. In addition to this, there are many other ways to do a drug assessment yet the most important thing to know is that lab testing verifying one’s addiction status can be invalid – particularly if it relies only on urine testing. The Supreme Court Practice Direction also fails to capture the nature of illicit drug trafficking and its relations with drug use. Illicit drug trafficking is an unlawful activity(s). Under the Indonesian law, these unlawful activities are formulated as drug offences in sections 111-148 of the Narcotics Law. However, the Narcotics Law as well as the Practice Direction fails to differentiate drug users with traffickers. A drug user may buy drugs or sell drugs to generate incomes. A drug user will have in her/his possession, or maybe own the drugs as well. This element of possessing a drug, he/she may be prosecuted for drugs selling or drugs possession, rather than drugs use. In practice, when a drug user is arrested when possessing drugs, s/he will be charged for drugs possession. In theory, the police are not wrong if they want to charge the drug user with possession of drugs. However, this is of course an unfair application and interpretation of the Narcotics Law and the Practice Direction. A fair interpretation would be that if someone is arrested for drugs possession or drugs selling, a fundamental question should be asked is, what is the purpose of such activity? If it is in a small amount of drugs and for personal use, that person should be indicted under section 127 regarding drugs use and not for the other section. When faced with a situation where a person possesses a small amount of drugs for personal use and she or he is indicted under article of drugs possession, judges should examine the case using section 127. Understanding the intention of section 4(d) of the Narcotics Law In criminal cases it is common when a court decision is overruled by higher court, including in drugs cases. However, one must closely examine the nature of drugs cases to analyze whether annulment from a higher court is reasonable or not. If a drug user is sentenced to rehabilitation and then a higher court annulled such decision, one would ask whether the judges thoroughly comprehend the intention of the Narcotics Law, especially section 4(d). In the Hari’s case, two expert witnesses were summoned to give evidence before the court. Both are doctors specializing in drug addiction. Both testified that Hari was their patient. One of them added that Hari was undergoing methadone treatment therapy at Kramat Jati Clinic. In the second case, Anthony also summoned two expert witnesses. The first one was a doctor who testified that the defendant was his patient in Drug Addiction Treatment Hospital in Jakarta. The second expert witness stated that the defendant had consumed narcotics since 1995. The addiction made Anthony felt so anxious and experienced light depression. Those conditions were known from a psychiatric examination.
  • 21. CAVEAT | February - March 2014 21 Similar to the other two cases, in Wahyu’s case, he also summoned an expert witness confirming that he had history of drugs addiction. Despite that the testimony of expert witnesses who could confirm those defendants addiction history, High Courts’ judgments annulling the first instance court decision. This could be an indication that either the High Court judges do not understand the issue of experiencing addiction or they simply ignore the facts presented before the court. Either way, the High Court judges in these three cases have infringed the defendants’ right to drugs rehabilitation. The ignorance of the High Court judges in upholding the first court decision appeared to be a blatant disregard of the new spirit embraced by the Narcotics Law as shown in the section 4(d). The objective of such provision is aimed to ensure that drug users can access medical and social rehabilitation. With the presence of such provision, the policy makers wanted to convey a signal that the Narcotics Law acknowledges that drug addiction is a health issue and not a criminal issue. Therefore, it should be addressed through medical measures rather than punishment. Principally, if there were more drugs users who could access drug treatments; it would likely encourage other drugs users to access those treatments. Consequently, drugs addiction problem in a general population would be better addressed. The availability of treatments for drugs users will also help to minimize the problems of HIV/AIDS and hepatitis C among the drug users group. On the contrary, inaccessible treatments would make drugs users remain in addiction – including those in prisons. If that happened in a correctional facility, such condition would continue their addiction and it might further escalate the spread of HIV inside prisons. It will certainly cause massive impacts on their health and prison population in general. It is in this context that the new Narcotic Law offers a new paradigm on providing rehabilitation services for drug users. This is manifested through section 4(d) in which it can be concluded that judges are mandated by the Statute to order rehabilitation decision when they examine drug addicted defendants who would like to access rehabilitation treatments. In brief, the annulment on rehabilitation verdict of those three cases does not conform with section 4(d). Closing In legal theory, there is a famous school of thought called positivism. The High Court judgments which invalidate district court rehabilitation decision are appeared to confirm their position on positivism. The High Court judges only see the law in a black letter way without having an insight understanding of what is in underneath the written law. This method of interpretation of law can undermine a sense of justice. Judges should not merely be a trumpet of law, but they should have thought innovatively on their decision to ensure that laws when are enforced will bring justice – including for the defendants. The Law No. 48 year 2009 on the Authority of Judiciary instructs judges to delve, follow, and understand the values of the law and the sense of justice within the society. Moreover, section 4(d), section 54, and section 103 of the Narcotics Law, give judges the authority to apply rehabilitation verdict to drug users. Thus, with the mandate given by the law and power of authority, the judges should use it wisely and ensure that their decisions will give the opportunity for drug users to access treatment.
  • 22. CAVEAT | February - March 201422 Chain of Ignorance FROM OUR ARCHIVE By: Albert Wirya1 Experts in education argue that knowledge is impossible to measure. Even the Intelligent Quotient (IQ) Test – often used as a measure of intelligence – has questionable validity.2 Despite the fact that our formal education system believes that a student’s knowledge can be accurately calculated by tests and exams, it is broadly accepted that knowledge is a characteristic that is particularly difficult to ascertain because it exists solely within the human mind. If knowledge can’t be measured, can we measure ignorance? Ignorance must be absolute, as it is clear there cannot be a sliding scale of zero knowledge. Someone with even a partial amount of knowledge could not be deemed ignorant. Therefore, rather than “measuring” ignorance it simply becomes necessary to “prove” it – that is, proving that what someone held in mind is definitely nothing. In criminal law, ignorance – or the absence of knowledge – is one of many elements that can help prove someone’s innocence. Not Knowing = Not Guilty? There are many legal experts who define guilt in criminal law. One of these experts is Langemeijer Noyon who argues that the criteria of guilt are (1) that the offender knew or should have known about the essence of his/her act that he or she commits, (2) that offender knew or should have assumed that his/her act violated the law, and (3) that the conduct was not a result of the person’s abnormal mental health.3 Knowledge is also viewed as an important element of intention. In dolus malus, a type of intention, the presence of will is not enough – there must also be knowledge that such an act is prohibited and violates the criminal law.4 Nowadays, it is too difficult to prove the offender’s knowledge of law, so the fictie principle was introduced. This principle assumes that everyone knows the law. 1 Albert Wirya is a casework volunteer at LBH Masyarakat. He is studying Criminology at the University of Indonesia. 2 Based on article in independent.co.uk, IQ alone couldn’t measure intelligence because this test does not take into account the complex nature of the human intellect which is believed to consist of short-term memory, reasoning and verbal agility. For further reading, please see http://www.independent.co.uk/news/science/iq-tests-are- fundamentally-flawed-and-using-them-alone-to-measure-intelligence-is-a-fallacy-study-finds-8425911.html. 3 Kanter, E Y, and S R Sianturi, Asas-asas Hukum Pidana di Indonesia dan Penerapannya (Jakarta: Alumni AHM- PTHM Press, 1982) p. 162. 4 Ibid p. 171.
  • 23. CAVEAT | February - March 2014 23 One type of scale of intention in criminal law is intention with utmost awareness. This scale determines how far the offender’s knowledge and awareness of his/her conduct (and the consequences of the conduct) extends. This principle does not only require the offender’s knowledge on act result that is definite, but also his/her awareness on another result that is not according his/her will. The Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana/ KUHP) also include the element of knowledge when committing a criminal act in words such as “that is known” as mentioned in Articles 110, 112, 119, 204, etc., “is knowing” in Articles 325, 326, 327, 396, and “already know” in Article 524. It is clear that sometimes human ignorance is useful and can allow someone to avoid the harsh consequences of the criminal law. Seven Fishermen Who Didn’t Know This ‘ignorance test’ can be applied in the case of seven fishermen. They were arrested near Onrust Island on August 22nd, 2013. These seven fishermen were accused of trying to smuggle illegal immigrants from Indonesia to Christmas Island in Australia. “I am just a fisherman. Why have I been arrested?” These were the words of Aras Bin Taggi, one of the fishermen who was arrested. On August 22nd, around 11 PM, Aras with his friend, Diki, carried 15 foreigners from Dadap shore (Banten Province – 1 km from The Thousand Islands) to Onrust Island. They were told by their friend, Tomik, that the foreigners wanted to go fishing. For this service, they were promised 800,000 Rupiah (approximately USD$70) in addition to the 100,000 Rupiah (approximately USD$9) they had already received as a down payment and spent on ship equipment. This job was also assigned to another seven traditional fishermen boats. One of the seven boats was driven by Wardono and Safrudin. After being informed of the job, these fishermen prepared their boats on the shore. Around 10PM, eight mini-buses (in Indonesia this kind of car is referred as ‘angkot’) stopped near the beach. These cars carried many foreigners and, after dropping off the passengers, they left. The foreigners quickly boarded the boats that had been prepared. These fishermen then obediently followed the order that they had received: to transport the foreigners to Onrust Island. Of the eight boats that sailed, two boats were stopped by the Water Police. Those two boats, captained by Aras-Diki and Wardono-Safrudin, were the last to leave the shore. Water Police patrol ships stopped and arrested them at almost midnight. They were charged with trying to smuggle illegal immigrants in violation of Article 120 of the Law number 6 year 2011 regarding Immigration. The person who ordered Aras, Diki, Wardono, Safrudin and other fishermen to sail was Tomik – another clam fisherman in Dadap. According to his confession, he was ordered by others named Jamsari and Marsini to instruct the fishermen to take the foreigners on their boats. Jamsari is a
  • 24. CAVEAT | February - March 201424 district mayor who was known and trusted by Tomik. Tomik was also arrested by the police at his home. Jamsari and Marsini’s locations were still unknown when this piece was written at the end of February. As part of the same event, two fishermen from Flores – Suharjo and Aspian – were also arrested on Onrust Island on 22nd August, 2013. They were the crew of Madina Ship. They were brought from Flores to Jakarta with a promise that they would be paid five million Rupiah (approximately USD$430) a month for fishing. On August 22nd around 10 PM, Iqbal, their captain, commanded them to sail the boat to Onrust Island. Their purpose was allegedly for fishing. When they had almost arrived at the island, two small boats approached them, carrying foreigners. The foreigners, seeing Suharjo and Aspian’s boat, immediately jumped on board. The two boats proceeded to sail to the shore. Iqbal and Rojak, the boat’s mechanic, went with the two boats to take the GPS and food supply. Suharjo and Aspian, on the other hand, were ordered to wait. Suharjo and Aspian couldn’t communicate with the foreigners due to the language barrier. After the departure of the two boats, more boats of the same size came and dropped foreigners on Suharjo and Aspian’s boat. Then the police came and arrested Suharjo and Aspian for trying to smuggle people. Iqbal and Rojak became fugitives. These fishermen didn’t know why they were arrested, only that they delivered people to go fishing. The two fishermen from Flores had only obeyed their captain’s orders, without knowing the true purpose of the foreigners in their boat. According to the law, they weren’t guilty because they didn’t deliberately and knowingly transport foreigners out of Indonesian territory. In this context, the court should first prove what level of knowledge the fishermen held in this case. This could be ‘zero knowledge’, ‘a little knowledge’ or ‘should have known’. Organized Crime Structure There are two models in organized crime. First is the bureaucracy model which has a complex hierarchy and the command coming from the top leader to implementer level.5 There is a chain of communication from the top down; therefore the purpose of the act from the top to bottom remains the same. If a Columbian mafia leader wants to deal drugs in a harbor, he will command his loyal staff who will then command their staff at the lowest position of the hierarchy to take the transaction of drugs in the harbor. Therefore, this lowest member of staff knows precisely the purpose of his act, as passed down from the boss. The second model is the patron-client network. In this model, contact occurs from person to person, so one individual can relay the message to a lot more people than he knows. This model works in relation to social exchanges where the patron provides economic and protection services and the client gives tangible assets in return.6 Human smuggling organizations don’t have a clear command structure. This is because there 5 Abadinsky, Howard, Organized Crime (Belmont: Wadsworth, 2010) p.12. 6 Ibid.
  • 25. CAVEAT | February - March 2014 25 are very few people who are capable enough to control the whole operation.7 The research that was conducted by Zhang and Chin8 analyzing human smuggling in China showed the same vagueness in structure. Smuggling organizations which are usually complex and highly organized turn out to have an unclear hierarchical order. Although some of the snakeheads (big bosses) have already been revealed, none of them appear to have knowledge of the whole operation. So, it could be said that human smuggling organizations work in the second model: patron- client network. The task that was given to these seven fishermen is clear. These arrested fishermen became the patrons who provided their clients, the foreigners, transportation across the country. But they aren’t the only patrons, there are many patrons who provided service – for example, forging documents, providing accommodation, and much more. These patrons all work for different purposes because the clients’ needs were different in different situations. Therefore, it is hard to conclude that the purpose held by the very first patron – to smuggle humans – was the same as the purpose of each of the seven fishermen. This model of organized crime shows that the ignorance of the fishermen about human smuggling is not surprising. They work daily as clam fishermen, but sometimes they provide transportation for people to go on vacation to Kepulauan Seribu. Therefore, accompanying foreigners to go fishing is viewed as part of their routine. If the police investigation continues to the upper commander of these fishermen, we can’t be certain that these people who still are fugitives (Jamsari, Marsini, Iqbal, Rojak) can reveal details of the whole operation. It could be that they are just the clients of another “patron”. Besides them, there were also the eight angkot drivers who delivered the foreigners to Dadap shore. The drivers’ knowledge of human smuggling can’t be assumed either. They could be just “friends of friends” – a phrase that is usually used by Sicilian mafia to refer to someone who they don’t know but who is also involved in crime. In the long run, we can find a chain of ignorance that formed this smuggling operation. The people who know clearly about this crime must exist, but are very difficult to catch. Contrarily, the people who work on the base of ignorance must face the risk of prosecution. In this case, the state can admit that their public education regarding the crime of human smuggling is lacking. Not every person, especially fishermen, understands the requirement of Article 120 of the Immigration Law. Nowadays, Indonesians usually see bule9 as a source of income rather than a dangerous business. The state could, of course, declare that these seven fishermen actually knew that what they took part in is a human smuggling crime. They could claim that the fishermen knew it was wrong but couldn’t resist the temptation to make money. However, this accusation is far more serious, as it suggests that the culture of crime is deeply rooted in Indonesia, with people on all sides of the spectrum organizing to help each other realize the same criminal purpose. 7 Zhang, Sheldon, Smuggling and Trafficking in Human Beings (Westport: Praeger, 2007) pp. 95–6. 8 Zhang, Sheldon, and Ko-Lin Chin, ‘Enter the Dragon: Inside Chinese Human Smuggling Organizations’ (2002) 40 Criminology 4. 9 A neutral Indonesian idiom for white foreigners, usually American/European people.
  • 26. CAVEAT | February - March 201426 Bibliography Abadinsky, Howard, Organized Crime (Belmont: Wadsworth, 2010) Kanter, E Y, and S R Sianturi, Asas-asas Hukum Pidana di Indonesia dan Penerapannya. (Jakarta: Alumni AHM-PTHM Press, 1982) Zhang, Sheldon, Smuggling and Trafficking in Human Beings (Westport: Praeger, 2007) Zhang, Sheldon, and Ko-Lin Chin, ‘Enter the dragon: Inside Chinese human smuggling organizations’ (2002) 40 Criminology 4
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