EDITOR’S NOTE

LBH Masyarakat presents you
the February-March 2013 edition.

HUMAN RIGHTS, LAW, AND POLITICS

The Indonesi...
MANAGING EDITOR:
Ricky Gunawan

CONTENTS
EDITOR’S NOTE ........................................... 3
HUMAN RIGHTS, LAW, AN...
EDITOR’S
N O T E
LBH Masyarakat presents you the February-March 2013 edition.
In March 2013, Indonesia resumed the executi...
Last but not least, in A Letter from Jember, Naila Rizqi Zakiah, a volunteer with LBH Masyarakat
Jember Office, shared her...
HUMAN RIGHTS, LAW, AND POLITICS

Condemnation of the Recent
Execution by the Indonesian
Attorney General’s Office
The Indo...
HATI Coalition concurs that every perpetrator of serious crime should receive punishment that
reflects the gravity of the ...
HUMAN RIGHTS, LAW, AND POLITICS

AMNESTY INTERNATIONAL

URGENT ACTION

NINE MORE TO BE EXECUTED IN INDONESIA

Nine people ...
-  alling on them to release information on the number of prisoners under sentence of death
C
in Indonesia and disclose th...
to 12 years’ imprisonment and the President granted clemency for two others who had been
sentenced to death for drug traff...
HUMAN RIGHTS, HIV, AND DRUG POLICY

Discoursing Human Rights
Protections for LGBT
in Indonesia
Ajeng Larasati1

Introducti...
the Governor of Jakarta at that time.4
It was in during 1981-1982 when an “unexpected cluster of cases”, which was later k...
In an internal learning forum conducted by the Indonesian National Commission on Women’s
Rights, Augustine from ArdhanaryI...
and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The
non-discrimination princ...
The Yogyakarta Principles are based on the recognition of the right to non-discrimination.
Theyaddress a broad range of hu...
equally it would be the Menteng Sector Police Office. When LBH Masyarakat accompanied one
transgender person who was beate...
from the location, many LGBT people and the society at large do not know that there is an
easier option to reporting a vio...
FROM OUR ARCHIVE

Vince: A Lesson from
Juvenile Facing Drugs Case
By: Antonius Badar1

Introduction
Monday, 18 March 2013,...
is certainly common when one faces legal problems and must deal with criminal proceedings, not
to mention, that this was a...
tried to convince Vince’s family not to pay anything to anyone,as it could just be a trick, not
to mention illegal, and co...
LBH Masyarakat visited the National Commission for Child Protection (KPAI) to seek their support.
Represented by Apong Her...
that was found by the police and the results of laboratory examination, which confirmed that the
evidence found was indeed...
A LETTER
F R O M
JEMBER
Bryan: A Story of a Teenager, Drugs and Poverty
Dear friends,
Prison is not a strange place at all...
to stay with their parents. Poverty makes this family must struggle very hard to fulfill their needs.
Bryan didn’t go to s...
As far as I understand, I may be wrong, but the government seems absent in this issue. If the
government doesn’t do anythi...
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Caveat - Volume February-March 2013 - LBH Masyarakat

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The Indonesian Civil Society Coalition against the Death Penalty (HATI Coalition) condemns the recent execution of Adami Wilson by the Attorney General’s Office, on Thursday, 14 March 2013.

“All human beings are born free and equal”. Regardless of the reality, this is the value that underpins human rights. Human rights is about equality, about everybody having the same rights, and that the government has the obligation to protect, respect and fulfill it. But, what if there area group of people who,since early in their lives, are discriminated and seen as less of a human being, and then thrust into marginalization,unable to claim their rights? What role must the government play to protect the rights of these people?

Monday, 18 March 2013, the Central Jakarta District Court decided to send a child who uses drugs to receive rehabilitation in a government social rehabilitation for children. Vince (not his real name) was one of ten suspects who were involved in this case. The proceedings were relatively quick and should be appreciated as the judge handed down the rehabilitation verdict to the child instead of imprisonment and put priority on children rights throughout the process.

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Caveat - Volume February-March 2013 - LBH Masyarakat

  1. 1. EDITOR’S NOTE LBH Masyarakat presents you the February-March 2013 edition. HUMAN RIGHTS, LAW, AND POLITICS The Indonesian Civil Society Coalition against the Death Condemnation of the Recent Execution by the Indonesian Attorney General’s Office Penalty (HATI Coalition) condemns the recent execution of Adami Wilson by the Attorney General’s Office, on Thursday, 14 March 2013. “All human beings are born free and equal”. Regardless of the HUMAN RIGHTS, HIV, AND DRUG POLICY reality, this is the value that underpins human rights. Human rights Discoursing Human Rights Protections for LGBT in Indonesia is about equality, about everybody having the same rights, and that the government has the obligation to protect, respect and fulfill it. But, what if there area group of people who,since early in their lives, are discriminated and seen as less of a human being, and then thrust into marginalization,unable to claim their rights? What role must the government play to protect the rights of these people? Monday, 18 March 2013, the Central Jakarta District Court decided to send a child who uses drugs to receive rehabilitation in a government social rehabilitation for children. Vince (not his real name) was one of ten suspects who were involved in this case. The proceedings were relatively quick and should be appreciated as the judge handed down the rehabilitation verdict to the child instead of imprisonment and put priority on children rights FROM OUR ARCHIVE Vince: A Lesson from Juvenile Facing Drugs Case throughout the process. A Letter From Jember Prison is not a strange place at all for me. When I joined LBH Masyarakat in Jember about a year ago as a volunteer, I had a lot of opportunities toto visit prison. This interesting experience enables me to know more about criminal justice system, prisons, crimes, and also juveniles. LBH Masyarakat Jember Office regularly provides legal counseling and psychological counseling, conducted together with local psychologists here, to juveniles. As a teenager, my interaction with juveniles attracts me more to understand their situation before and after committing crimes. And from there, I have befriended with few of them. Volume February - March 2013 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. 2. MANAGING EDITOR: Ricky Gunawan CONTENTS EDITOR’S NOTE ........................................... 3 HUMAN RIGHTS, LAW, AND POLITICS......... 5 Condemnation of the Recent Execution by the Indonesian Attorney General’s Office HUMAN RIGHTS, LAW, AND POLITICS ........ 7 Amnesty International Urgent Action HUMAN RIGHTS, HIV, AND DRUG POLICY.. 10 Discoursing Human Rights Protections for LGBT in Indonesia FROM OUR ARCHIVE................................. 17 Indonesian National Narcotic Board: In Between Enforcing Drug Laws and Fabricating Cases EDITORIAL BOARD: Andri G. Wibisana, Dhoho Ali Sastro, Ajeng Larasati, Antonius Badar, Magda Blegur, Ilkham Sofiar, M. Afif Abdul Qoyim, Riki Efendi. FINANCE AND CIRCULATION: Ahmad Zaki REVIEWER: Miki Salman 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: haridesign A LETTER FROM JEMBER........................... 22 -- 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 Bank Branch No. Acc. Swift Code 2 : Lembaga Bantuan Hukum Masyarakat : Bank Mandiri : Tebet Timur, Jakarta, Indonesia : 1 2 4 – 0 0 0 – 5 0 3 – 6 6 2 0 : B M R I I D J A CAVEAT | February - March 2013
  3. 3. EDITOR’S N O T E LBH Masyarakat presents you the February-March 2013 edition. In March 2013, Indonesia resumed the executionsof death penalties since it last executed in 2008. The move was strongly criticized by national and international human rights community. LBH Masyarakat together with other human rights organizations, Imparsial and KontraS, held a joint press conference condemning the execution. In Human Rights, Law, and Politics column we put our joint press release. For us, the resumption of executionsis both surprising and worrying. It is a major setback because it is in contradiction to the positive steps that Indonesia has been taking towards the abolition of the death penalty. It is worrying because the Attorney General Office plans to carry out nine more executions this year. Given the seriousness of the issue at the moment, we also include an urgent action from the Amnesty Internationalin the column. The urgent action asks the Indonesian government to overturnits plan to execute nine more death convicts this year. In Human Rights, HIV, and Drug Policy column, Ajeng Larasati, LBH Masyarakat’s Human Rights, HIV, and Drug Policy Reform Program Coordinator, writes about protecting LGBT rights in Indonesia. She describes the typical human rights violations faced by LGBT in Indonesia. She argues that the government’s failure to adequately and effectively respond to the abuses perpetuates the ongoing problems. Larasati recommends that in addition to strengthening government bodies like the National Human Rights Commission, empowering LGBT community would also help to address the rights abuses that they often face. Her full analysis can be found in Discoursing Human Rights Protection for LGBT in Indonesia. In From our Archive, Antonius Badar, LBH Masyarakat’s Case Coordinator, shared his views on a recent juvenile case that LBH Masyarakat handled. Badar recounted how LBH Masyarakat handleda juvenile case in which a boy was involved in drugs offences. LBH Masyarakat assisted the juvenile in obtaining social rehabilitation. Badar wrote afull chronology of the case and the legal proceedings as well as the issues faced in advocating for his case in Vince: A Lesson from Juvenile Facing Drugs Case. CAVEAT | February - March 2013 3
  4. 4. Last but not least, in A Letter from Jember, Naila Rizqi Zakiah, a volunteer with LBH Masyarakat Jember Office, shared her experience of befriending a juvenile in a local prison. In her article, Zakiah provided an analysis of the relationship between juveniles, drugs and poverty, reflecting from her experience. It is hoped that reading her article, readers can better understand the context of juveniles facing drugs cases. Her article is entitled Bryan: A Story of a Teenager, Drugs and Poverty. As always, comments or criticisms are more than welcome to enrich our discussion and add to our knowledge. 4 CAVEAT | February - March 2013
  5. 5. HUMAN RIGHTS, LAW, AND POLITICS Condemnation of the Recent Execution by the Indonesian Attorney General’s Office The Indonesian Civil Society Coalition against the Death Penalty (HATI Coalition) condemns the recent execution of Adami Wilson by the Attorney General’s Office, on Thursday, 14 March 2013. Wilson was a Nigerian national. This execution was the first one carried out by Indonesia since it last executed people in November 2008. Death penalty is a violation of the right to life guaranteed by the Indonesian Constitution under article 28A juncto article 28I, which states that everyone has the right to life and that the right cannot be derogated under any circumstances. This constitutional guarantee is in accordance with Indonesia’s international legal obligation,which took effect after Indonesia ratified the International Covenant on Civil and Political Rights (ICCP) in 2005. Death penalty is also an inhumane punishment, does not have the intended deterrent effect, and is a violation of human dignity. HATI Coalition asserts that Wilson’s execution is a major setback to Indonesia’s human rights policy and infringes the political commitmentsit made at the UN General Assembly session in December 2012, when Indonesia abstained from voting on the resolution in support of the moratorium on the death penalty. The abstention was a positive shift after Indonesia consistently voted against the moratorium in previous resolutions. Wilson’s execution has put the progress in reverse and iscounter-productive for Indonesia’s efforts to defend its migrant workers and nationals currently facing the death penalty abroad. With this execution, Indonesia no longer has the moral and political high ground to demand other countries to not execute Indonesian nationals. The execution of Adami Wilson is also disconcerting because it paves the way for the execution of nine other convicts next in line on Attorney General’s list. HATI Coalition urges the Attorney General Office to cancel the planned executions and to reinstate the moratorium on executions of all death convicts in Indonesia. A moratorium is important not only to halt the executions but will also put Indonesia back on the path it has built towards the abolition of the death penalty. This will put Indonesia backin line with the global trend, as no more than 20 countries in the world carried executions in 2011. CAVEAT | February - March 2013 5
  6. 6. HATI Coalition concurs that every perpetrator of serious crime should receive punishment that reflects the gravity of the crime. However, such punishment should not deprive human life. Death penalty does nothing more than sustain revenge. When we condemn the most serious crimes by condemning the perpetrators to death – including for crimes that result in the loss of human life –we are also committing the very act that we condemn. Promoting the death penalty under the pretense of delivering justice for the victims of most horrendous crime is no different than encouraging revenge – an eye for an eye, a very archaic notion of justice that is incongruent with the norms of modern human civilization. Punishment should be undertaken in a manner that still respects human life and dignity. Taking away that dignity undermines our own dignity.Instead, the philosophy of modern sentencing proposes restorative justice, not retributive, to give the opportunity for perpetrators to correct their act and restore the harm they have caused in society. This will afford every human being the chance to better the societythey live in, and humanity at large. Indonesia must stop the executions it has just resumed and move towards the abolition of the death penalty, and it must do so immediately. Jakarta, 16 March 2013 Indonesian Civil Society Coalition against the Death Penalty KontraS – LBH Masyarakat – Imparsial 6 CAVEAT | February - March 2013
  7. 7. HUMAN RIGHTS, LAW, AND POLITICS AMNESTY INTERNATIONAL URGENT ACTION NINE MORE TO BE EXECUTED IN INDONESIA Nine people are at risk of execution in Indonesia,as the state has resumed executions. According to the Attorney General’s Office, the execution of Adami Wilson on 14 March was only the first of 10 executions to be carried out in 2013. Indonesia has carried out its first execution since November 2008. A Malawian national, Adami Wilson, was executed by firing squad on 14 March: he had been sentenced to death in 2004 for trafficking drugs. Following the execution, the Attorney General announced that the authorities planned to execute at least nine other people under sentence of death in 2013. According to the Attorney General’s Office, three of these nine were sentenced to death for drug-related offences and six for premeditated murder. The authorities have not revealed the names of the nine or their execution dates, but all are believed to have exhausted all their appeals. Death sentences in Indonesia are carried out by firing squad. The condemned prisoner has the choice of standing or sitting and whether to have their eyes covered, by a blindfold or hood. Firing squads are made up of 12 people, three of whose rifles are loaded with live ammunition, while the other nine are loaded with blanks. The squad fires from a distance of between five and 10 metres. There are at least 130 people under sentence of death in Indonesia. Around half of those on death row, many of whom are foreign nationals, have been convicted of drug-related offences. So far in 2013 at least six people have been sentenced to death. At least 12 people were sentenced to death in 2012. Please write immediately in English, Indonesian or your own language: - alling on the authorities to halt executions immediately and commute all outstanding death C sentences to terms of imprisonment; - rging them to establish an immediate moratorium on executions, with a view to abolishing U the death penalty; CAVEAT | February - March 2013 7
  8. 8. - alling on them to release information on the number of prisoners under sentence of death C in Indonesia and disclose their names and other relevant information to their families; - ointing out that the decision to resume executions has set Indonesia against global trends P towards abolition of the death penalty. PLEASE SEND APPEALS BEFORE 10 JUNE 2013 TO: President H.E. SusiloBambangYudhoyono Istana Merdeka Jakarta Pusat 10110 Indonesia Fax: +62 21345 2685 Salutation: Your Excellency Attorney General BasriefArief Jl. Sultan Hasanuddin No. 1, Jakarta Selatan, DKI Jakarta 12160 Indonesia Fax: +62 21 725 1277 (keep trying) Salutation: Dear Attorney General And Copies to: National Human Rights Commission Chairperson Siti Noor Laila Jl. Latuharhari No. 4B, Menteng Jakarta Pusat 10310 Indonesia Fax: +62 21 392 5227 Also send copies to diplomatic representatives accredited to your country. Additional Information Indonesia resumed executions on 14 March 2013 after a four year hiatus, when Adami Wilson a 48-year-old Malawian national, was put to death for drug-trafficking (news of the execution was only received after it had already taken place, no Urgent Action was released, but please see Amnesty International news story: http://www.amnesty.org/en/news/indonesia-first-executionfour-years-shocking-and-regressive-2013-03-15 ). The execution was a shocking and regressive step after years of positive indications that Indonesia was moving away from the death penalty. In October 2012, after news that President SusiloBambangYudhoyono commuted the death sentence of a drug trafficker, Foreign Minister Marty Natalegawa said the move was part of a wider push away from the use of the death penalty in Indonesia.Also in 2012, the Supreme Court commuted the death sentence of a drug trafficker 8 CAVEAT | February - March 2013
  9. 9. to 12 years’ imprisonment and the President granted clemency for two others who had been sentenced to death for drug trafficking. Amnesty International recognizesthe need for governments to deal with murder, drug trafficking and other serious crimes, but believes the death penalty does not provide a solution. There is no clear evidence that the death penalty deters crime any more effectively than other forms of punishment. Amnesty International believes that the death penalty is the ultimate cruel, inhuman and degrading punishment, and a violation of the right to life as proclaimed in the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), to which Indonesia is a state party. Article 6 (2) of the International Covenant on Civil and Political Rights (ICCPR) restricts the use of the death penalty to “the most serious crimes” which has been interpreted as meaning crimes involving intentional killing. Moreover, Article 6(6) of the ICCPR states that “Nothing in this article shall be invoked to delay or to prevent the abolition of capital punishment by any State Party to the present Covenant”. The Human Rights Committee, the body overseeing the implementation of the ICCPR, has stated that Article 6 “refers generally to abolition [of the death penalty] in terms which strongly suggest... that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life”. The then UN Commission on Human Rights, in resolution 2005/59, called upon all states that still maintain the death penalty “to make available to the public information with regard to the imposition of the death penalty and to any scheduled execution”. On 23 March 2012, the UN Human Rights Council adopted resolution 19/ 37 on the “Rights of the child” in which it called on states to ensure that inmates on death row, as well as their families and legal representatives are provided, in advance, with adequate information about a pending execution, its date, time and location, to allow a last visit or communication with the convicted person. Amnesty International opposes the death penalty unreservedly in all cases, and supports the global trend against the use of the death penalty, powerfully expressed most recently in the UN General Assembly’s 20 December 2012 resolution calling for a worldwide moratorium on executions with a view to abolishing the death penalty. At the voting, Indonesia for the first time abstained from voting against a resolution calling for a global moratorium on the death penalty. Today 140 countries have abolished the death penalty in law or practice: in the Asia-Pacific region, 28 out of 41 states are abolitionist in law or practice. Name: Adami Wilson (m) and unknown prisoners facing the death penalty Gender m/f: m and unknown UA: 109/13 Index: ASA 21/010/2013 Issue Date: 29 April 2013 CAVEAT | February - March 2013 9
  10. 10. HUMAN RIGHTS, HIV, AND DRUG POLICY Discoursing Human Rights Protections for LGBT in Indonesia Ajeng Larasati1 Introduction “All human beings are born free and equal”. Regardless of the reality, this is the value that underpins human rights. Human rights is about equality, about everybody having the same rights, and that the government has the obligation to protect, respect and fulfill it. But, what if there area group of people who, since early in their lives, are discriminated and seen as less of a human being, and then thrust into marginalization,unable to claim their rights? What role must the government play to protect the rights of these people? This article will assess how Indonesian government protects the human rights of LGBT group. It will take a look at the regulation of human rights protection in general and on the LGBT issue nationally. Assuming that there is a regulation protecting the rights of LGBT, this article will see such regulation is implemented. At the end, this article will list recommendations on how the government canplay their role in protecting the rights of LGBT. LGBT stands for lesbian, gay, bisexual, and transgender. Alternatively, in some part of the world the term LGBTIQ is also used, which stands for lesbian, gay, bisexual, transgender, intersex, and queer or questioning. These are the terminologies that are commonly used to describe people’s sexual orientation and/or gender identity.2 According to GAYa Nusantara, one of the Indonesian leading LGBT organizations, LGBT people have been presented from the beginning of human history. People have been changing their gender identity or had sexual relations with others who have the same sex as s/he is.3 In 1969, the first transgender organization in Indonesia was established with the facilitation of Mr. Ali Sadikin, 1 Ajeng Larasati is Human Rights, HIV, and Drug Policy Reform Program Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat). 2 For more explanation on what LGBT and/or LGBTIQ are, please see among others: http://www.lgbt.ie/information. aspx?contentid=84, http://www.insideoutys.org/programs/resources/talking-talk-lgbtiq-terms/. 3 See http://gn-intern.blogspot.com/2009/03/perjalanan-sejarah-waria-gay-dan.html 10 CAVEAT | February - March 2013
  11. 11. the Governor of Jakarta at that time.4 It was in during 1981-1982 when an “unexpected cluster of cases”, which was later known as Acquired Immunodeficiency Syndrome (AIDS), was found amongst gay people in California and New York City, United States of America.5 This “unexpected cluster of cases” was proposed to be named as Gay-Related Immune Deficiency (GRID). Following that, an organization called Gay Men’s Health Crisis was found to address AIDS, which was initially known as GRID. Being an LGBT is really a challenge. Although they are not, and hopefully will never be, criminalized under the Indonesian laws, the government has yet to legally acknowledge their existence. For instance, gay and lesbian couples cannot get married and individualscannot change their identity without undergoing a sex reassignment surgery, which includes genital surgery.6 Strangely, although the existence of gay and lesbian couplesis not recognized, they are explicitly prohibited fromadopting children.7 It is rather peculiar that the government prohibits something it believes does not exist. Selected Cases of Rights Violations Faced by LGBT Mike is an openly gay man who was working in Aceh when he was tortured by the local police. One day, while he was in a room with his partner, some people raided the room and beat him and his partner. These people called the police to get Mike and his partner and later took them to a local police station. Mike and his partner were initially relieved, thinking that at the local police office they will be safe. But it soon turned into a nightmare when 7 (seven) police officers started torturing them, forcingthem to take off all their clothes, pointing a gun at the anus of one of them. When his partner told the police he wanted to pee, they coerced him to pee on Mike’s head. They were released the next day after some human rights activists came to the police office.8 Although lesbian couples might not as easily be noticed as gay couple, they also are as vulnerable of becoming victims of human rights violations. Lesbians areregularly coerced to marry men by their families. When some have the courage to marrytheir partners, the law in Indonesia does not allow this to take place legally. In such cases, some of them choose to falsify their identities so they can be ‘registered’ as men. When neighborsfind out, such marriagesrisk being annulled.9 Trans-persons’ life is also as vulnerable as that of gay’s and lesbian’s. Unlike gay and lesbian, transgender people are more visible from their appearance. Some of them are rejected from schools or work places due to their appearance. 4 See http://www.gayanusantara.or.id/. 5 See http://www.cdc.gov/mmwr/preview/mmwrhtml/00001114.htm. 6 Article 56 (1) Law Number 23 Year 2006 Regarding Civil Administration regulates that any other important event related with population affairs will be proceeded following to a court decision. Gender change is under this criterion of event: http://www.hukumonline.com/pusatdata/detail/26195/node/. 7 See Article 13 Government Regulation No 54 Year 2007 Regarding Child Adoption, http://www.hukumonline. com/pusatdata/detail/27072/node/640; Supreme Court Circular Letter No. 6 Year 1983 Regarding the Revision of Supreme Court Circular Letter No 2 Year 1979 Regarding Child Adoption, http://jdih.mahkamahagung.go.id/v1/ surat-edaran-mahkamah-agung/Kebijakan-Mahkamah-Agung/Surat-Edaran-Mahkamah-Agung/Tahun-1983/ (click on ‘SEMA Nomor 6 Tahun 1983’). 8 Summarized from a book called “Biarkan Aku Memilih: Pengakuan Seorang Gay yang Coming Out”, by Hartoyo and Titiana Adinda. 9 See http://www.tempo.co/read/news/2013/01/13/078454051/Surat-Nikah-Pasangan-Sesama-Jenis-Bakal-Dicabut. CAVEAT | February - March 2013 11
  12. 12. In an internal learning forum conducted by the Indonesian National Commission on Women’s Rights, Augustine from ArdhanaryInstitute, shared the common violations faced by LGBT groups in Indonesia. The first violation is sexual abuse, where 9 out 10 LBT people testified that they face various type of sexual harassment, includingrape, and other coerced sexual encounters. The second and third types of violation are physical and emotional abuses. The abuse does not only come from third parties like police officers, but from their families and friends as well.10 Apart from abuse, there are many facets on LGBT’s life that are vulnerable to discrimination.11 When discrimination takes place and the government doesnothing to protect LGBT rights, the government is breaking its promise to protect, respect and fulfill the rights of LGBT people. In April 2010, the National Human Rights Commission (NHRC) was holding a training on law and human rights for transgender people in Depok, when a group of people claiming to be the Islamic Defender Front (Front Pembela Islam/FPI) violently entered the venue and attempted to stop the training. They ransacked the room, threw glasses and plates inside the room. The committee had to move the participants to a safer place. Nobody wasseriously injured, but many were psychologically shocked. Not only because the attack was so sudden, but also because of what the participants felt afterwards, namely, humiliation after such an aggressive attack brutally raiding them likes animals. Worse, they were attacked while in the middle of an event conducted by the NHRC, a state body. This was not only an attack on the dignity of participants, but also that of the NHRC and the state. Dodo, from Arus Pelangi, together with the representatives from the transgender group, reported this attack to the NHRC. The Chairperson of NHRC, Ifdhal Kasim, regretted that although some police officers were present during the attack, they did nothing to stop the attackers and protect the participants and the committee. To this day, there is no follow up to the case. The violence against LGBT people continued. In March 2011, Shakira, a transgender sex worker, was shot dead by an unknown person. She was not the only victim. Two other transgender sex workers were injured and hospitalized as a result of the shootings. It was said that before they were shot, the suspects verbally abused and then shot them. The police interviewed eight witnesses. The bullet from Shakira’s body has been extracted as well, and it is supposed to be in the process of investigation.12 Until now, however, the investigation failed to identify the perpetrators. State Obligations on LGBT Rights One of the basic principles of human rights is non-discrimination. It is an overarching principlein all the major human rights treaties and is the central theme of some international human rights conventions. In simple terms, non-discrimination means that no one shall be denied their human rights on the basis of a non-exhaustive list of factors, including sex, race, skin color and so on. The non-discrimination principle applies to both the civil and political rights, as well as the economic, social, and cultural rights. Indonesia has ratified the International Convention on Civil 10 See: http://www.komnasperempuan.or.id/old/demo08.trabas.web.id/metadot/indexa145.html?id=3851isa=Cate goryop=show 11 A compilation case study of discrimination against LGBT people made by ArusPelangi is available here: https://www.box.com/s/0ydkbw0euff74mgubozv. 12 See http://www.tempo.co/read/news/2011/04/04/064325058/Pelaku-Penembakan-Waria-Taman-Lawang-MasihMisteri. 12 CAVEAT | February - March 2013
  13. 13. and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The non-discrimination principle, therefore, also applies in the implementation of human rights in Indonesia. Article 28D (1) of the Constitution of the Republic of Indonesia states that: “Each person has the right to recognition, security, protection and certainty under the law that shall be just and treat everybody as equal before the law.” By having this article in the Constitution, the government guarantees that everybody is entitled torecognition, security, protection, and equal treatment before the law. There should be no special treatment or privileges, for instance,to government officials who commit crimes. Conversely, people in the margins of society shall also be afforded the same protections and treated equally as those who have power. This means that everybody, no matter what their sex, their skin color, or their political ideology are entitled with legal protection of their rights, including those who have same-sex relationships or gender identity. Apart from the Constitution, in Indonesia, human rights are further protected under Law 39/1999 regarding Human Rights. The Law on Human Rights acknowledges thatevery person is recognized as a human being with the right to claim and receive equal treatment and protection before the law.13 Not only that, there are other forms of rights regulated under this law, such as the right to privacy, right to self-development, and right to life. All of the rights listed under this law belong to every person, without discrimination on any grounds, not even sexual orientation or gender identity. None of the above laws specifically regulate LGBT rights. It is true that the law does not differentiate the subject of rights bearer. But in the implementation, human rights violation against LGBT people is happening across the world, ranging from prohibition from formal education to outright criminalization punishable by death. Recently, in the United States, a transgender girl was prohibited from using girls’ bathroom in her school. This treatment discourages her from going to school and denies her access to education.14 Many of the violations, or stigma against LGBT people, have led to suicide because they cannot bear the pressure.15 Therefore, a specific human rights law, which takes into account sexual orientation and gender identity, is necessary to provide strong legal grounds to protect the rights of LGBT. To ensure the basic standard of how the government should treat LGBT people, a group of international experts launched the Yogyakarta Principles in Geneva in March 2007. The Yogyakarta Principles, named after the city where the development of the principles took place, confirm international legal standards on how governments and other actors should end violence, abuse, and discrimination against lesbian, gay, bisexual, and transgender people, and ensure full equality.16 The Principles affirm binding international legal standards to which all States must comply.17 13 Article 5 (2) of the Law Number 39 Year 1999 Regarding Human Rights 14 See http://abcnews.go.com/Health/colorado-transgender-girl-banned-grade-school-bathroom/ story?id=18607443#.UX6R3NiW4wo. 15 See http://www.lgbtqnation.com/2011/09/alarming-trend-in-suicide-among-lgbt-youth-nearing-pandemic-sayscdc/. 16 See http://www.hrw.org/news/2007/03/25/yogyakarta-principles-milestone-lesbian-gay-bisexual-and-transgenderrights. 17 See http://network.idlo.int/HI/CHI/Files/YOGYAKARTA_PRINCIPLES.pdf. CAVEAT | February - March 2013 13
  14. 14. The Yogyakarta Principles are based on the recognition of the right to non-discrimination. Theyaddress a broad range of human rights standards and their application to issues of sexual orientation and gender identity, such as extrajudicial executions, violence and torture, access to justice, privacy, non-discrimination, rights to freedom of expression and assembly, employment, health, education, immigration and refugee issues, public participation, and a variety of other rights. They also emphasize the principle of equality before the law. Addressing the Problems As mentioned above, LGBT groups have been subject to various types of human rights violations. The perpetrators of such actsthat amount to human rights violations also vary, from police officers to family members, or some religion-based mass organizations. In most situations, the perpetrators are often left unpunished by the state. When LGBT people are abused domestically by family members, many are reluctant to take action to address it. These victims of domestic violence tend to keep silent and obey what the perpetrators want them to do. For example, a lesbian woman who was raped by a man as ordered by the woman’s parents might probably choose to keep silent and not file a complaint of the rape to the police. The woman probably thinks that she has no evidence to prove that she was raped, and nobody, including her family, will give support or testify about the rape. This fact makes it nearly impossible for her to report what befell her to the police. LGBT people victims of other crimes are similarly reluctant to report incident to the police. Transgender sex workers or street musiciansare often physically abused by random personson the street, or sometimes, by their clients. When they are abused, they often choose to let it go and forget about it. They might go to the hospital to treat their injuries, if any, but it is unlikely that they will come to the police office and report about what they have been through. According to Indri, a leader of a transgender group living in West Jakarta, the most common reason why many transgender victims of crimes or abuse remain silent is self-stigma. Many transgender people in her area feel that they are destined to become victims of abuse, or to be bullied. To them those are risks that they have to take because they choose to, for example, dress like a woman, or to fall in love with a person of same sex. However, in rare cases where LGBT victims of domestic violence or crimedo stand up for themselves and report to the police, the police would often discriminateand humiliate them for being LGBT, and this happens not only once or twice. In 2010, LBH Masyarakat assisted three transgender persons, who were beaten by a group of unknown men, to file a police report in Jakarta. Instead of getting the details of the crime and the chronology, the police officer asked irrelevant personal questions, such as ‘how come you become a transgender and a sex worker’, ‘do your parents know about this’, ‘how many clients that you usually have in a day’, and so on. Such treatment often makes cases unsolved, either because the police could (or would) not find the perpetrators, or for lack of evidence. This goes further to discourage LGBT from filing reports as the police are usually more interested in preaching rather than investigating the actual crime. However, there are exceptions to the rule. If there is one police office that treats LGBT persons 14 CAVEAT | February - March 2013
  15. 15. equally it would be the Menteng Sector Police Office. When LBH Masyarakat accompanied one transgender person who was beaten by one of the residents in the area where she usually works as sex worker, the police officers were very polite, objective, and impartial. They did not ask about personal details, and focused their effort on the chronology. In a matter of days the suspects were found and the case was solved. The LGBT’s fight for justice does not stop when they accidently find good police officers. The fight continues in the court room where a panel of judges decideson how justice should be served. When a case remains unsolved, it discourages LGBT groups from reporting crimes they face. For LGBT people, to stand up for themselves, come to the police office, and undergo an investigation is no easy matter. They must put themselves together and muster the courage, set aside their fears of being discriminated (again) at the police office. When the result of all this effort is yet another unsolved case, it is not only they who will be discouraged, but most likely the entire LBGT community that they are a part of. Although the Constitution guarantees that every person (which means including LGBT) is equal before the law and shall receive equal rights protection, many human rights violations against LGBT persist and crimes committed against them remain unsolved. The lack of understanding about human rights amongst the public at large and government officials is one of the main factors leading to human rights violations against the LGBT group. Many still do not understand that LGBT persons are also human beings with rights and tend to look down and stigmatize LGBT. Around 2002, the Indonesian National Commission on Human Rights (NCHR) had a specific desk for addressing human rights violations faced by minorities groups, which includes the LGBT group. The NCHR has made many efforts to protect the rights of minority groups, including by making agreements amongst government officials, especially law enforcement officers, to respect, protect, and fulfill the LGBT rights. NCHR also provided a number of human rights trainings to government officials and community groups. Although the minority desk no longer exists, an excellent partnership between NCHR and civil society organizations on the issue of LGBT is wellmaintained. According to a survey conducted in February 2013, coordinated by LBH Masyarakat, GWLINA, and Sanggar Waria Remaja, many LGBT group members feel that the NCHR can further develop and maximize its role in protecting the rights of LGBT people.18 Although the majority of respondents are aware of NCHR’s existence, many have never or are not willing to report human rights violations they or their friends experienced. The main reason is that they do not know how to report such a case to the NCHR. Another reason is that many LGBT people see that NCHR is inaccessible. The NCHR has only one headquarter in Jakarta, and small representative offices in six cities across Indonesia. Apart 18 This survey is a part of a project initiated by the International Development Law Organization (IDLO), SAARCLAW, UNDP, and UNAIDS, to assess the capacity of the NCHR in protecting the rights of LGBT people. The project is named NHRI SOGI Project. The same project was also conducted in other 7 (seven) countries in South East Asia and South Asia region. CAVEAT | February - March 2013 15
  16. 16. from the location, many LGBT people and the society at large do not know that there is an easier option to reporting a violation to the NHCR, namely, by phone. This should enable LGBT groupsto want to report violation they faced, without having to come in person to the NCHR. Reporting a human rights violation is critically important as one of the ways to help stop, or at least minimize, the number of human rights violations. Certainly the hope is that by reporting a violation, a legal step can be taken to hold the perpetrator to account. This feeling is shared by other minority groups as well. When LGBT people remain silent for all the human rights violations that they have suffered, it only goes to encourage the perpetrators to repeat the crimes, as they feel justified without any repercussions when LGBT groups remain silent, or when the government fails to resolve cases related to LGBT rights. It is, therefore, important that the government ensures there is a supporting climate in which LGBT can safely and comfortably file a complaint. As the government body holding the mandate to promote human rights, the NCHR has a big task at hand: to raise human rights awareness among other government bodies and society at large. With increased awareness, two things are hoped to happen. First, the broader society will realize that discriminating LGBT group on the basis of their sexual orientation and/or gender identity, or any other status is legally wrong. Second, when there is still a human rights violation against LGBT, the government bodies, particularly the law enforcement agencies, will undertake legal action to duly address the violation. That way, the law is enforced. However, the protection of LBGT rights is not just the responsibility of the NCHR. LGBT communities should be strengthened so they understand their rights and how the legal system works, and to enable them to have the courage to report violations they are subjected to and monitor their case progress. Such task requires the involvement of all stakeholders who are truly concerned about LGBT rights. 16 CAVEAT | February - March 2013
  17. 17. FROM OUR ARCHIVE Vince: A Lesson from Juvenile Facing Drugs Case By: Antonius Badar1 Introduction Monday, 18 March 2013, the Central Jakarta District Court decided to send a child who uses drugs to receive rehabilitation in a government social rehabilitation for children. Vince (not his real name) was one of ten suspects who were involved in this case. The proceedings were relatively quick and should be appreciated as the judge handed down the rehabilitation verdict to the child instead of imprisonment and put priority on children rights throughout the process.However, some challenges in fulfilling the rights of the child remained, such as the right to education, because he is still in junior high school. On the one hand, the trial had totake place, but on the other hand, Vince needed to take his final exams, which will determine whether or not he graduates. This short article aims to analyze the challenges LBH Masyarakat faced in defending the rights of Vince. A Common Dilemma: Shortcut or Legal Aid? This story began when police officers from Tanah Abang Sector Police (Central Jakarta) arrested ten people, including three children and seven adults. On 19 January 2013, Vince and his other nine friends, Bryan also known as Belong, Ryan, Jeremy, Felix, Ian, Michael, David, Ronald, and Andrew2, were hanging out together in front of a shop in Tanah Abang Market (Central Jakarta) watching a football match on television. Ryan then pulled out a small plastic wrap of marijuana from his pocket and asked Vince and Felixto roll it into three spliffs. Then they took turns to smoke it. Soon after, some police officers, who were already watching their activity, came and arrested them for possession of marijuana. Fearing what may happen to Vince, all his family members became anxious. When LBH Masyarakat met Vince’s father for the first time, Mr. Wayne (not his real name) and another family member in a visit to see Vince at Tanah Abang Sector Police, confusion and sorrow was visible on his face. This 1 Antonius Badar is Case Advocacy Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat). 2 All are not real names. CAVEAT | February - March 2013 17
  18. 18. is certainly common when one faces legal problems and must deal with criminal proceedings, not to mention, that this was a drugs case that carries along the associated stigma and prejudice for suspects and their family members. Understandably, it was a difficult situation for Vince and his family. Although Vince and his family do not know much about the law, one thing that they know for sure is that the Indonesian legal system is corrupted and unreliablein its legal certainty. At the police precinct, they heard conflicting information about the legal process that they would face. Vince was charged under two alternative articles: first, Article 111 paragraph (1) juncto Article 132 paragraph (1) of the Narcotics Law with minimum sentences of four years imprisonment and maximum twelve years imprisonment, and minimum fine of 800 million rupiahs and maximum 8 billion rupiahs; or, second, Article 127 with maximum sentences of four years imprisonment. However, according to Article 81 paragraph (2) of Law number 11 year 2012 regarding Juvenile Criminal Justice System, maximum sentences that can be imposed on juveniles is half of the maximum sentences that can be imposed on adults. So if Vince is found guilty of the first offense he could face up to six years in prison, and if he was found guilty for the second charge, it would be two years in prison. This prospect worried Vince and his family. He is the only son and is still only 16 years old and it deeply disappointed his parents that he was involved in drugs. They could not believe that Vince could be implicated in such a case. So it was a mixed feeling of sadness, fear, and disappointment for them. Although there are many ways to explain how Vince got involved with drugs in the first place, as a matter of fact, statistically speaking, the number of people who use drugs is increasing each year, both among adults and juveniles alike. In 2008, the prevalence ofdrugs use was1.99 percent of Indonesia’s total population. In 2011, the number increased to 2.2 percent and in 2013 the National Narcotic Board (BNN) predicts that the prevalence will rise further to 2.58 percent.3 As reported in a media, in 2011, the number of junior high school students who had used drugs was 1,345 people. In 2012, the number increased to 1,424 while new drug users in January until February 2013 reached around 262 people. Among senior high school students there were 3,187 people who used drugs in 2011. In 2012, it rose to 3,410 people. New drug users in 2013 reached 519 people.4 Later two other children who had been arrested together with Vincewere released by the police as their urine test results showed negative results. This made Vince’s parents even more uneasy. Strangers are now offering their ‘services’ to secure Vince’s release in exchange for some money. They asked Vince’s parents around 20-35 million rupiahs to ensure that the legal proceedings would stop at the police. LBH Masyarakat understood from the beginning that this would happen to Vince consistent with our experience in similar cases.Some of Vince’s family members had already begun collecting the money to release Vince even though they are poor. LBH Masyarakat 3 Source: http://www.tribunnews.com/2012/12/27/bnn-tekan-angka-pengguna-narkoba, accessed on 26 March 2013. 4 Source:http://regional.kompas.com/read/2013/03/07/03184385/Pengguna.Narkoba.di.Kalangan.Remaja. Meningkat, accessed on 26 March 2013. It is interesting to see actually why the numbers of drug users are increasing whereas the Indonesian ‘war on drugs’ policy seems to be very harsh. Does this show that the current drug policy does not work – like in many other countries that adopt similar tough policy, as indicated in many international reports? Further analysis is required to investigate the linkages between Indonesia’s existing drug policy and the apparent failures. However, it is not the task of this piece to do such task. 18 CAVEAT | February - March 2013
  19. 19. tried to convince Vince’s family not to pay anything to anyone,as it could just be a trick, not to mention illegal, and could actually worsen the situation. There is no and there can be no guarantee that paying certain amount of money would ensure Vince’s release. We also told them that paying money to those ‘mafia’ will only show them that the family has money and will do anything to pay even more. Our assessment shows that there was sufficient evidence to find Vince guilty. Vince and his family members were shaken and muddled about what to do. LBH Masyarakat is all too aware how this situation can be confusing for them, but, finally, the family entrusted LBH Masyarakat to handle this case and ignored the ‘mafia’ offers. Given that Vince is underage and will face proceedings, LBH Masyarakat provided legal representation (lawyers) for Vince to assist him in the case. On 12 February 2013, Vince gave the power of attorney to LBH Masyarakat. For LBH Masyarakat this is not just about gaining trust from them, but also an effort to increase public awareness about this issue with Vince’s case as the example. LBH Masyarakat wanted Vince and his family to know that we are not just providing lawyers, but we would also involve family members so they too can learn the law and understand the legal process together. Our main concern was not about how Vincecan go free, as he was clearly guilty of using and possessing marijuana under the law, but to ensure that Vince will take responsibility for what he has done, while at the same time attempting to ensure that Vincecan continue his education. Bail Request Rejected We know that finishing study and graduating from junior high school is equally important for Vince as going through the legal process. The final year students in his school had been running some student activitiessince February 2013 in preparation for the final national exam to be held in April. Such school activities were also important as they also served as registration for students to attend the national exam. Not attending these school activities could disqualify a pupil from taking the final national exams, and certainly s/he will have to enroll again next year. It was quite difficult for Vince to attend those school activities because while still being detained by the police and the prosecutor, and the only thing that could enable that would be if he is granted bail. Vince’s bail application should be approved by the police or other law enforcement agencies responsible for Vince’s case proceedings if strong arguments are presented. LBH Masyarakat filed bail to Tanah Abang Sector Police, arguing that he needs to be given the chance to finish his education while going through the legal process in parallel. The Indonesian Criminal Procedure Code provisions specify that bail is possible if there is a guarantee that he will not to run away, destroy evidence, and/or commit the offences again.5 Additionally, the Law on Juvenile Criminal Justice System also provides for the same6, and because he is still underage, his interest as a child should also be taken into account. LBH Masyarakat was aware that getting bail for Vince would not be easy because of his drugs offence, as such, the timing and the arguments for submitting the request was important. This is where support from related institutions, like National Commission for Child Protection, Vince’s Senior High School, and others, was crucial. 5 Article 21 of the Indonesian Criminal Procedure Code (KUHAP). 6 Article 32 of the Law number 11 year 2012 regarding the Juvenile Criminal Justice System. CAVEAT | February - March 2013 19
  20. 20. LBH Masyarakat visited the National Commission for Child Protection (KPAI) to seek their support. Represented by Apong Herling, one of the commissioners, KPAI welcomed our request and was supportive of the work that we were doing. However, KPAI cannot intervene in legal proceedings. They offered a letter in support of Vince’s bail request, stating that as a child Vince has the right to get bail and suggested the police to give him the chance to go back to school and sit in the final national exam. Other support came from the community leaders (Head of RT/RW), where they attested to Vince’s good moral and that he had been a good boy before the arrest. Vince’s school also issued a letter explaining that Vincewas still a registered student and that he should attend school activities before sitting in the final national exam. Although Vince’s bail request gained muchsupport, the police did not respond to it positively. The police failed to provide sound reasons for why they did not grant bail, always saying that there is no requirement for them to grant bail. Towards the end of his detention, the police informed that Vince’s case dossier had been sent to the prosecutor, thus, it was no longer their responsibility to grant bail. At the prosecution level, due tothe short time and legal mandate to give priority for juvenile, the process was accelerated, and bail was, again, not granted. The decision was indeed in the hands of the investigating prosecutor and the current system, unfortunately, provides no legal avenue to challenge this decision. As a consequence, Vince must remain in detention during the whole process and did not get access to continue his education. The Court’s Decision The trial proceedings went quick in just two sessions, and Vince’s fatelargely depended on the hearings as the judge examines the evidence to arrive at her conviction. In the first hearing, LBH Masyarakat, again, asked the judge to grant bail for Vince. However, the judge ignored the request because she wanted to resolve the case as soon as possible. The hearing it self, which was attended by a judge, lawyers, prosecutor, juvenile correctional center officer, and Vince was held in less than a week; the first hearing on Wednesday, 13 March 2013, and the second on Monday, 18 March 2013. The prosecutor delivered his indictment letter in the first hearing, after which we did not file our objection.Therefore, the next agenda was the evidentiary hearing. The first evidence the prosecutor wanted to present was the police who arrested Vince. However, the police could not attend the hearing and a written testimony was read instead. Later, the judge wanted to hear more statements from other witnesses and the hearing was adjourned until the next hearing on Monday, 18 March. The second hearing was important because the judge speeded up the agenda to hear the testimoniesof other witnesses who will help Vince’s position, namely, Vince’s friends who were arrested with him that night. From those witnesses it became more apparent that Vince was only smoking marijuana. The marijuana was bought by Felix and Roland for twenty thousand rupiah (20,000 IDR). It was found out that Roland had asked Vince to roll the marijuana together, and it was also Roland who first asked Vince to try marijuana. The other witnesses also testified the same about what had happened that night. In addition, the prosecutor exhibited the marijuana 20 CAVEAT | February - March 2013
  21. 21. that was found by the police and the results of laboratory examination, which confirmed that the evidence found was indeed marijuana and Vince and six of his friends were found positively using marijuana. After the evidentiary hearing, the judge right away askedthe prosecutor to read out the charges and LBH Masyarakat, as Vince’s lawyers, to read the defense plea. The prosecutor said that Vincewas guilty of violating Article 127 paragraph (1) of the Narcotics Law and demanded nine months imprisonment. Considerations from the prosecutor that Vincewas guilty were something that we (LBH Masyarakat and Vince) could accept. However, sentencing Vince to imprisonment was objectionable because prison should not be a place for underage children like Vince and it is not the right response for Vince’s use of marijuana. LBH Masyarakat conveyed a verbal defense objecting the imprisonment demanded by the prosecutor. As part of our defense, we asked the judge to also consider Article 127 paragraph (2) where it says that judges should consider Article 54 and Article 103 of the Narcotics Law on rehabilitation. In the evidentiary hearing, it was clear that Vince can be categorized as a victim, because he was persuaded to use marijuana. Article 54 states that a victim like Vince is required to undergo medical or social rehabilitation and Article 103 also states that the rehabilitation can be obtained by a court’s decision. LBH Masyarakat’s defense was in line with the recommendations from the juvenile correctional center officer who argued that Vince was persuaded to use marijuana and suggested the judge to place him in a government social rehabilitation for children. Finally, the judge handed the decision that took into account the prosecutor’s demand and LBH Masyarakat’s defense as well as the recommendations from the juvenile correctional officers. Vince was found guilty of using marijuana and he was sentenced to undertake social rehabilitation in a government social rehabilitation for children for nine months to obtain non-formal education and capacity building. Although the initial aim to bring Vince back to school was not achieved, at least Vince and his family were satisfied because he did not have to go to prison. Instead, he will go to a government social rehabilitation for children. This was not an easy case, but hopefully there is something to learn and understand that juveniles involved in drugs cases and their families often face dilemmatic situation. Juveniles in drugs cases are not just about juvenile facing the law, but it is also about drugs and the associated stigma and discrimination of the offenders. Understanding the context of drugs law may help us understand the larger context of juvenile criminal justice. CAVEAT | February - March 2013 21
  22. 22. A LETTER F R O M JEMBER Bryan: A Story of a Teenager, Drugs and Poverty Dear friends, Prison is not a strange place at all for me. When I joined LBH Masyarakat in Jember about a year ago as a volunteer, I had a lot of opportunities toto visit prison. This interesting experience enables me to know more about criminal justice system, prisons, crimes, and also juveniles. LBH Masyarakat Jember Office regularly provides legal counseling and psychological counseling, conducted together with local psychologists here, to juveniles. As a teenager, my interaction with juveniles attracts me more to understand their situation before and after committing crimes. And from there, I have befriended with few of them. Making friends with juveniles is not easy at the first place. We must strip down our negative stigma about prison and our prejudice towards the crimes that juveniles have committed. We have to to see their experience from their side. Otherwise, we would easily become judgmental and it makes us even harder to know and be acquainted with them. Juveniles have different background, such as, educational, family, social, and criminality. However, their status as a child or teenager appears to unite them all. Every time we visit the prison, we got a lot of new friends. And of course, we become closer with those whom we have met before. Most juveniles that we have met there are younger than me and my fellow volunteers from LBH Masyarakat Jember. A large number of them come from poor families. Poverty thrust them to quit from school. Beside of that, poverty and low education make them tend to not to do good activities in their daily lives. Perhaps, this is one major reason that made them committing crimes. It is ironic, indeed. In their early age, they must through their life in an unfortunate condition. One of the juveniles who has become a good friend of mine is Bryan (not his real name). He is 17 years old. He should be in the third class of junior high school now.But, he quit from school since two years ago. He comes from a poor family. He lives with his parents, two brothers, and one nephew. His parents work as farmers, but the salary they receive every month is hardly to cover their expenses.To fulfill their needs they have to work hard or even find another job to get additional income. Bryan’s brother has married and works in Sumatra.His brother left his daughter 22 CAVEAT | February - March 2013
  23. 23. to stay with their parents. Poverty makes this family must struggle very hard to fulfill their needs. Bryan didn’t go to school anymore, so he practically doesn’t have any activity to do like any other teensthat go to school everyday. Because of that, Bryan spent his time by sleeping, playing around, and in essence wasting his time. His social environment changed because of that. He didn’t play with his friend in high school anymore. He got friends who are also unemployed and older than him. Thus, Bryan’s behavior change day by day. Since he was 15 years old, Bryan started to consume drugs (dextro/trek) but he did that very rarely. Nowadays, because of his friends, he consumed this drug more often. It appears that drugs (dextro) are not a strange thing in youth anymore. It circulated among teenagers. And this happened with Bryan’s social environment too. Starting with a curiosity to try, it then became his habit. He finally met and became friendswith drug user community in his village. Not only being a member of this community, Bryan also interested to sell drugs to his friends. The reason was because he needed money. He sold it in small number. By selling the drugs, he got money to buy drug for himself. In the middle of 2012, he decided to quit and found a relatively proper job in Bali. However, like what Robert Louis Stevenon tried to say in Dr. Jekyll and Mr. Hyde, that humans have dualism of character, bad and good, and when we know the bad side of us, we will tend to know it more. This is exactly what happened to Bryan then. Bryan quit from his job in Bali, and then came back to Jember to sell drugs again. One month after his return, the local police officers arrested him in his house. His arrest was surprisingly gone smooth without any violence or coercion. Pollice officer came to his house and found evidence of drugs and brought him to the police station. The arrest with no violence took place surprised me in a sense that based on my experience meeting the drug user community, they told me that police often torture them during the arrest and detention. This is a complete different experience with what Bryan had experienced. Two month ago I asked Bryan about his case and why the police treated him well. He told me that, his boss (who is his friend), would be responsible to taking care of his parents including his needs while being detained. It appears that Bryan is only a victim of his bossin a way that because the police has managed to arrest someone for drug offences, the police is happy with that and Bryan’s boss, in return, will take care of Bryan’s parents. Like in many other cities in Indonesia, it is quite obvious that when a police managed to arrest a drug offender it is an achievement. Listening to Bryan’s story is of course disheartening. It is clear that Bryan is losing his youth time because of the poverty. And due to economic condition he had to struggle the hardship of life and made him to know drug use which eventually led to his arrest and now serving in prison. I am quite convinced that not only Bryan who has this problem. Many other teenagers probably face the similar problem where they are unable to overcome their poor condition. As a consequence, these young children have to deal with unemployment, social problems like drugs and ended up in a difficult situation to escape from. CAVEAT | February - March 2013 23
  24. 24. As far as I understand, I may be wrong, but the government seems absent in this issue. If the government doesn’t do anything to resolve the problem, I’m afraid that there will be more Bryans ended up in prison. They may be wrong by committing crimes or using drugs. But their acts cannot be separated from the fact that their poor economic condition deprives their ‘normality’. They don’t go to school any longer. They become friends with old unemployed guys. And then be familiar with criminality. This is not to justify the acts they have committed. But instead, to provide a bigger picture of situation that is faced by juveniles like Bryan. What we can do, at least, is not to be judgmental and to show support for them, because during those hard time, they have lost their directions. And I believe we, the society, have the obligation to help them to ensure that they can better develop themselves. Best regards, Naila Rizqi Zakiah Student of Law, Jember University 24 CAVEAT | February - March 2013

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