Caveat - Volume July-August 2012 - LBH Masyarakat

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The relationship between ethnic and religious groups in Indonesia is vulnerable to conflict and has often lead to violence. The intensity of conflicts that has lead violence in the past few years is alarming. Take, for example, the
brutal attacks on Ahmadiyah followers in Cikeusik, Banten province, in early 2011; persistent assaults against the HKBP Filadelfia church in Bekasi, West Java, this year; and also this year, aggressive harassment of Shi’ite followers in Madura, East Java. These are but a few cases of conflicts involving violence between groups in Indonesia. The question remains, however, were these violent conflicts caused or perhaps triggered because of the different group
identities involved? In other words, such question assumes that that the violence is driven by ethnic or religious identity.

Indonesia has been attempting to address drug issues in many ways, which apparently and regrettably, has been more of a failure rather than a success. The government seems to be somewhat confused as to how it should tackle this problem. The number of drug dependents has not decreased despite the punitive approaches and extensive campaigns that demonize people who use drugs.

The third article seeks to provide an overview of how Indonesian drug policies have failed to respect human rights of drug users. However, a detailed analysis of the problems is beyond the scope of this article. It will, therefore, only seek to evaluate fundamental issues of the policies. At the end of this article, it will offer some key recommendations to address the problems that emerged.

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Caveat - Volume July-August 2012 - LBH Masyarakat

  1. 1. CAVEAT INDONESIA’S BIMONTHLY HUMAN RIGHTS ANALYSIS LBH Masyarakat proudly presents you the new format of CAVEAT, a bimonthly analysis of Indonesia’s human rights situation. LBH Masyarakat is republishing CAVEAT in a slightly different format. The new development is adjusted to reflect the nature of our work. EDITOR’S NOTE CAVEAT will consist of four columns: Human Rights, Law, and Politics; Human Rights, HIV, and Drug Policy Reform; From Our Archives; and A Letter from Jember. HUMAN RIGHTS, LAW, AND POLITICS The relationship between ethnic and religious groups in Indonesia is Conflict, Violence, and the Politics of Public Order in Indonesia vulnerable to conflict and has often lead to violence. The intensity of conflicts that has lead violence in the past few years is alarming. Take, for example, the brutal attacks on Ahmadiyah followers in Cikeusik, Banten province, in early 2011; persistent assaults against the HKBP Filadelfia church in Bekasi, West Java, this year; and also this year, aggressive harassment of Shi’ite followers in Madura, East Java. These are but a few cases of conflicts involving violence between groups in Indonesia. The question remains, however, were these violent conflicts caused or perhaps triggered because of the different group identities involved? In other words, such question assumes that that the violence is driven by ethnic or religious identity. FROM OUR ARCHIVE Indonesia has been attempting to address drug issues in many ways, Compulsory Reporting for Drug Dependents: A Brief Analysis which apparently and regrettably, has been more of a failure rather than a success. The government seems to be somewhat confused as to how it should tackle this problem. The number of drug dependents has not decreased despite the punitive approaches and extensive campaigns that demonize people who use drugs. This article seeks to provide an overview of how Indonesian HUMAN RIGHTS, HIV, AND DRUG POLICY drug policies have failed to respect human rights of drug Indonesia’s Failed Drug Policy Undermines Drug Users’ Human Rights users. However, a detailed analysis of the problems is beyond the scope of this article. It will, therefore, only seek to evaluate fundamental issues of the policies. At the end of this article, it will offer some key recommendations to address the problems that emerged. My name is Lubis Ubaid Prasetyo. I am currently studying law at Jember University (this is my first year), and I also a volunteer at LBH Masyarakat Jember office. I would like to share you my story – my personal experience while volunteering with LBH A Letter From Jember Masyarakat Jember. Volume July-August 2012 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 Conflict, Violence, and the Politics of Public Order in Indonesia EDITORIAL BOARD: Andri G. Wibisana, Dhoho Ali Sastro, Ajeng Larasati, Alex Argo Hernowo, Antonius Badar, Magda Blegur, Pebri Rosmalina, Ilkham Sofiar, M. Afif Abdul Qoyim, Riki Efendi. CONTENTS FINANCE AND CIRCULATION: Fajriah Hidayati, Ahmad Zaki REVIEWER: Miki Salman FROM OUR ARCHIVE................................. 18 Compulsory Reporting for Drug Dependent: A Brief Analysis 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 A LETTER FROM JEMBER........................... 23 -- DESIGN AND LAYOUT: haridesign HUMAN RIGHTS, HIV, AND DRUG POLICY.. 10 Indonesia’s Failed Drug Policy Undermines Drug Users’ Human Rights 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 | July-August 2012
  3. 3. EDITOR’S N O T E LBH Masyarakat proudly presents you the new format of CAVEAT, a bimonthly analysis of Indonesia’s human rights situation. Some of you may know that from 2009 to 2010 we published CAVEAT as many as sixteen editions every month. However, due to some technical issues, we decided to discontinue the publishing. Now LBH Masyarakat is re-publishing CAVEAT in a slightly different format. The new development is adjusted to reflect the nature of our work. CAVEAT will consist of four columns: Human Rights, Law, and Politics; Human Rights, HIV, and Drug Policy; From Our Archives; and A Letter from Jember. Human Rights, Law, and Politics will provide analysis on issues surrounding human rights in the sphere of Indonesian law and/or politics. In this edition, Alex Argo Hernowo, LBH Masyarakat’s Justice Sector Reform Programme Coordinator, writes on Conflict, Violence, and the Politics of Public Order in Indonesia. The rise of violence involving groups with ethnic and/or religious identity background in Indonesia in the past few years has been alarming, Hernowo claims. This brings up an assumption that inter-group relations in Indonesia are prone to conflicts which then leads to violence. However, this begs the question whether this assumption is entirely accurate. Are these conflicts leading to violence really caused or triggered by the different identities? After exploring the issues, Hernowo urges the state to take a clear position and undertake policies not to discredit a certain group and benefit another group, to uphold the rule of law, to resolve unjust social-economic distribution in the society that can trigger conflicts and violence. In particular, with regard to the state’s response to violence, a specific policy to regulate public order in regard to acts of violence committed by groups is also a key proposal. Human Rights, HIV, and Drug Policy is a column affirming our commitment to this issue, namely, to advocate for a human rights-based approach HIV and drug policies. Ajeng Larasati, LBH Masyarakat’s Human Rights, HIV, and Drug Policy Programme Coordinator, analyses the effect of Indonesia’s drug policy to human rights of the people who use drugs. In her article, entitled Indonesia’s Failed Drug Policy Undermines Drug Users’ Human Rights, she argues that the international drug control regime has failed and has led to severe human rights violation around the world, including Indonesia. Larasati raises two fundamental issues in her article. The first is the policies’ failure in differentiating drug users and drug traffickers leading to the violation of CAVEAT | July-August 2012 3
  4. 4. the right to health. The second is torture and other ill-treatment committed in all stages of the criminal justice system. It highlights how torture is common and the challenges to eradicate such practices. To conclude her article, Larasati offers some key recommendations to address the problems that emerged. In From Our Archives we would like to provide you with a glimpse of the work that we do. This column provides news or analysis of issues from our casework or perhaps interesting bits that we encounter in our community legal empowerment activities. In this edition, Antonius Badar, LBH Masyarakat’s Case Advocacy Coordinator, writes an article on the regulation regarding compulsory reporting for drug dependence. Badar argues that the implementation of the Government Regulation on Compulsory Reporting for Drug Dependence has not really been working well, rather bringing more harm to drug user communities. He raises four key issues that the government should address. Firstly, the regulations sustain Indonesia’s half-hearted approach to decriminalize drug users. Secondly, it appears that the cooperation between government institutions to implement these regulations are lacking. Thirdly, the facilities for compulsory reporting and rehabilitation are poorly prepared. And fourthly, information on the rules and regulations about compulsory reporting has not been provided adequately both to medical practitioners who are or will be involved in the treatment, as well as the community of people who use drugs. Badar seeks to provide some solutions to the problems in his Compulsory Reporting for Drug Dependents: A Brief Analysis. Last but not least, A Letter from Jember, is a column dedicated to our sister organisation, LBH Masyarakat Jember Office. This column provides updates on their activities in Jember, East Java, on legal empowerment, case work and many others. In this edition, Lubis Prasetyo, an intern with LBH Masyarakat in Jember, writes his experience volunteering there. We hope that you will find this new CAVEAT more interesting and useful for your reference to understand the various issues of human rights in Indonesia. We look forward to hear your comments or constructive criticism to develop CAVEAT even better. Thank you for your support. ~ The Editor ~ 4 CAVEAT | July-August 2012
  5. 5. HUMAN RIGHTS, LAW, AND POLITICS Conflict, Violence, and the Politics of Public Order in Indonesia By: Alex Argo Hernowo1 Introduction The relationship between ethnic and religious groups in Indonesia is vulnerable to conflict and has often lead to violence. The intensity of conflicts that has lead violence in the past few years is alarming. Take, for example, the brutal attacks on Ahmadiyah followers in Cikeusik, Banten province, in early 2011; persistent assaults against the HKBP Filadelfia church in Bekasi, West Java, this year; and also this year, aggressive harassment of Shi’ite followers in Madura, East Java. These are but a few cases of conflicts involving violence between groups in Indonesia. The question remains, however, were these violent conflicts caused or perhaps triggered because of the different group identities involved? In other words, such question assumes that that the violence is driven by ethnic or religious identity. Conflict and Violence For the Indonesian context, a home of hundreds of ethnics and a number of religious groups, this assumption does not seem to hold true. Conflicts and violence purely driven by religious tensions or ethnic identities have hardly happened. Differences between ethnic and religious groups or cultural dissimilarities can somewhat be moderated through social-cultural interactions that seems to have been embedded in Indonesian society for quite a long time. The fact that such interactions have been going on for centuries appears to hold Indonesia in one piece until today – of course among other significant factors too. For example, one thing can be considered usual by group X, while group Y would regard that as deviant because of different cultural values they have. The word “Jancuk”, for example, is somewhat acceptable in daily conversations among Surabayans in East Java, yet it is an offensive term for perhaps Yogyakartans. Cultural interactions between them can help Yogyakartans to understand the meaning and not be offended afterwards. It also helps Surabayans to be sensible that it may offend other people, thus, use the word with caution. 1 Alex Argo Hernowo is Justice Sector Reform Programme Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat). CAVEAT | July-August 2012 5
  6. 6. However, things are different in the political context. In a political community like a state, the value system is uniformed under the laws. If there is a prevailing law which prohibits acts of violence, one cannot appeal to one’s cultural background to say that such violence is acceptable according to their customs in order to avoid punishment from the state. Hence, it is difficult to follow if differences between ethnic or religious groups can lead to conflicts straight away, given that socio-cultural interactions take place constantly among the Indonesian people. Ethnic and religious differences between groups can be a source of conflict if one group becomes a representation or enjoys privileges in the political community or in accessing economic wealth. When we go to Tanah Abang, Central Jakarta, we may hear stories about how two groups of thugs competing to dominate the economic power in that area. The clash between two groups of gangsters in front of the South Jakarta District Court in 2010 was also triggered by economic motive. Not to mention that the underlying factor of rivalry between the Forum Betawi Rempug (FBR) and the Forum Keluarga Betawi (Forkabi) – two mass organizations claiming Betawi ethnicity as their basis – is economic interests as well. It is widely known that these groups are engaged in a turf war for unregulated street parking in Jakarta to collect illegal fees from that “security services”. A closer look into such conflicts and violence reveals that most of them are not triggered by mere incidents or happen out of thin air, but they are designed or are executed by order of one or another influential individuals within the groups. Orders from these individuals are interpreted as truth by the group members only because they came from their God-like leaders. It seems that these leaders are aware that they are doing self-legitimating, although they know what they are doing is inflicting violence. Attacks on Ahmadiyah are clear examples of how violence is effectively organized and orchestrated. If these were spontaneous attacks, it is difficult to see how they keep occurring on a massive scale over and over again. Unfortunately, these situations have inevitably shaped the criminal behavior of the group members, and the possibility is now greater that they can commit violent acts without having to wait for orders from their leaders. Violence has become an inherent part and they have accepted and valued it as something good as they continue to commit it recurrently. James Wilson and George Kelling call this the broken window theory. “Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and it if it is unoccupied, perhaps becomes squatters or light fires inside. Or consider a sidewalk. Some litter accumulates. Soon, more litter accumulates. Eventually, people even start leaving bags of trash from take-out restaurants there or breaking into cars.”2 In the end, chaos will prevail in society and survival of the fittest, literally, will become the law – what Thomas Hobbes refers to in Elementha philosophica de cive as bellum omnium contra omnes as the war of all against all.3 This can be categorized as a subjective factor of violence where an agent provocateur inflames a situations and imbues other people consciousness with hate. Ordinary people who are used to living in harmony and peace may then become ruthless individuals and hostile towards differences. This subjective factor, however, is not the single determinant. There are questions of why people are willing to take orders to commit violence – assuming that they know it violates the laws. This 2 See: http://www.theatlantic.com/magazine/archive/1982/03/broken-windows/4465/# 3 Thomas Hobbes, Elementa Philosophica de cive (1642), Chapter 1 Section 12. 6 CAVEAT | July-August 2012
  7. 7. question could be answered in many different ways, but, it should help us to identify the objective factors of conflicts and violence. There may be economic needs or political pressure or also legal limitations, so when there is an external party to drive individuals to commit violence, it is a choice that seems too hard to resist. Understanding these factors, both subjective and objective, can better equip us in seeking a right formula to address the perpetual conflicts and acts of violence. Based on the above explanation, it seems that we can initially conclude that the conflicts that lead to violence are not heavily tied to the issue of different identity of one group to another, and are rather intertwined with economic and/or political interests. Where groups’ identities seem to emerge as the cause of conflict and violence, it is because the identity has been abused by parties who take advantage of the conflict, and certain ethnic or religious groups are often associated with certain economic and/or political powers. State’s Violence Violence can also be used as a method of propaganda and terror, produced and commoditized by the elite – those who have economic and political influence. Contrasting the acts of violence that have taken place with how the state has responded with meager or non-existent law enforcement, one cannot help but conclude that the state is deliberately turning a blind eye with the intention to terror the society. Terror then is utilized as means to ensure that the society submits to the state with fear. More evidence is needed, but it seems that the current situation is sufficient to suggest that it is the state’s approach in implementing its security politics: to sustain power by disseminating terror, at the same time acting as the protector of the society from terror. Somewhat analogous to virus makers – they make the virus, they make the anti-virus as well, and this is used as commodity to gain advantage. The assumption that violence has been deliberately ignored by the state can be observed from the state’s asymmetric response in its handling of security. Whenever the ‘national interest’ is disturbed, the state will respond quickly and with force. Whereas, when the security of the society is under threat, the state disregards the matter. Take, for example, demonstrations against fuel price hike or demonstrations against Freeport McMoRan in Papua, where the state responds right away and often excessively. While in cases of attacks against Ahmadiyah and Shi’ite minorities, and the HKBP Philadelphia Church mentioned above, no political measures have been taken up – even if there are, they have been inadequate – to address the problems. It is clear that violence should never be tolerated for any reason and regardless of who commits it. The state has to prosecute those who commit violence and the state itself shall endeavor to not inflict violence of its own. This is the kind of a civilized state that we wish to live in. The state must take a clear position in the cases cited above. It has to undertake policies that will not discredit certain groups and benefits others, to uphold the laws, resolve unjust social-economic distribution in society that may trigger and perpetuate conflicts and violence. In particular, with regard to state’s response to violence, a specific policy that addresses public order in relation to acts of violence committed by groups is necessary. Such policy would be possible when it concerns the state’s interests, as explained above. Otherwise, it could be pointless to expect such policy. Instead, the government and the House of Representatives are drafting a law that could potentially limit the freedom of association through their revision of the Law on Civil Society Organization number 8 year 1985. Article 13 CAVEAT | July-August 2012 7
  8. 8. of the Law specifies that the Government can freeze the management of a society organization if it undertakes activities that, for example, can disrupt public order. Article 14 of the same Law further states that the Government has the authority to dissolve or freeze an organization if it continues to undertake prohibited activities. Article 16 specifies that the Government can dissolve organizations that disseminate communism, Marxism, Leninism, or other ideologies that are in conflict with the national ideology, Pancasila. These three articles are a violation of freedom of association as enshrined in the International Covenant on Civil and Political Rights (ICCPR) to which Indonesia is a State Party. It is encouraging to see that Indonesia is revising this law and that there is a better prospect for better legal protection of human rights. However, a more thorough look at the Draft Law reveals further disappointments. The Draft Law sets more complicated rules and procedures to form associations. This in itself may not be considered a serious violation of freedom of association, yet it hinder one’s freedom of association nonetheless. The Draft Law also opens the possibility for horizontal conflicts as civil society organizations can file support for or protest against the existence of certain organizations (Article 47 paragraph (1)). The government may have had good intentions when drafting this provision, but it leaves a lot of room for open interpretation of how to express protests. Organization X, for example, which does not like the activity of another organization, Y, may assault Y’s office or harass the staff. X may argue that this is their expression of protest. The Draft Law also provides the state with authority to freeze an organization. This provision can be a legitimate tool for the government to suppress not only freedom of association but also other human rights. A human rights NGO which is vocal against government’s policies may be frozen if the government dislikes its activities. The specific policy on public order mentioned earlier obviously should not be the kind of policy that was adopted in the 1980s which saw the popularly called ‘mysterious shooting operation’ (Operasi Petrus) against ‘thugs’, or the Operasi Mawar (Rose Operation) in 1998 when a lot of forced disappearances of political activists took place. It is a specific policy to regulate how the state apparatus, in this context the police, shall prevent and deal with groups trying to disrupt public order. It is a policy that provides legal protection to minority groups vulnerable to attacks from other groups; a policy to contain or prevent dissemination of hate speech. The Draft Law does have one article prohibiting hate speech, namely, Article 47 paragraph (2) prohibiting society organizations from, among others, disseminating hatred (the term use there is not exactly “hate speech”). However, it would be better that the provision which restricts organizations’ activities not be included, given that the perpetrators of such acts are individuals. Conclusion The state’s response to address conflicts and violence between groups in the society should go beyond statements of concern, in reference to ‘prihatin’, a word often used by President Susilo Bambang Yudhoyono every time he delivers a speech regarding this kind of issue. The state must avoid using repressive measures when dealing with conflicts and violence, as they are prone to human rights violations. The state must undertake comprehensive measures to address this issue. The following suggestions could, perhaps, be useful. Firstly, in terms of political measure, a political integration is required to ensure that everyone from different social backgrounds can have the same opportunity in politics. For example, a Buddhist shall not be hindered by the government 8 CAVEAT | July-August 2012
  9. 9. when s/he wants to take part in a political process. This integration will help reduce the tension between ethnic and religious groups because the political powers will be more diverse and can accommodate various interests as well. Secondly, although this may sound cliché, the state must uphold the rule of law – ensuring that no one is above the law. Vigilante groups that disrupt public order in the name ethnic or religious identities shall be brought to justice and the police shall protect minority groups from attacks, instead of ignoring them. Thirdly, in economic matters, the state must provide equal opportunity for all people from different identities in the society. This can close the gap between the wealthy and the underprivileged and will minimize economically oriented violence. Ensuring enough jobs opportunities will contribute to ease tensions between groups, especially when the conflict between them is triggered by competition for employment. When employment is available, group members will consider to stop “working” for their thug leaders and find better jobs that do not violate the law. Lastly, the state’s politics of public order should do away with its ruler-centric approach on security, as it was during the New Order regime that espoused its state subversion doctrine. CAVEAT | July-August 2012 9
  10. 10. HUMAN RIGHTS, HIV, AND DRUG POLICY Indonesia’s Failed Drug Policy Undermines Drug Users’ Human Rights By: Ajeng Larasati1 Introduction The 1961 UN Single Convention on Narcotic Drugs, that has led to the notorious global ‘war on drugs’, has reached its fiftieth anniversary in 2011. Along with the 1971 Convention on Psychotropic Substances and the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, they shape the international drug control regime. The UN Single Convention states that the health and welfare of mankind is its main concern, therefore, state parties have to ensure the availability of narcotic drugs for medical and scientific purposes.2 However, in recent years there is a growing discussion about the regime’s failure to achieve its goals, instead, contributing to pervasive human rights violations.3 Human rights groups have conducted many studies4 showing that the rights violated in this respect are include, inter alia, the right of the highest attainable standard of physical and mental health of drug users and/or drug dependents5, the right to be free from torture and other ill-treatment6, and the right to life,7 not to mention other forms of human rights violations to people who grow drugs.8 These problems occur in many parts of the world, including Indonesia. 1 A jeng Larasati is Human Rights, HIV, and Drug Policy Reform Program Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat). 2 Please see the preamble of the Single Convention on Narcotic Drugs. 3 eport of the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard R of physical and mental health, A/65/255, 6 August 2010. 4 lease see for example the works of the Open Society Foundation, the Canadian HIV/AIDS Legal Network, Harm P Reduction International, among others. At the national level, please see the works of LBH Masyarakat, Jangkar, and Jaringan Pemantau Pelanggaran HAM. 5 Report of the UN Special Rapporteur on Right to Health, A/65/255. 6 Please see the report of the UN Special Rapporteur on torture and other cruel, inhuman, or degrading treatment and punishment, A/HRC/19/61, 18 January 2012, http://www.ohchr.org/Documents/Issues/SRTorture/A-HRC-19-61. pdf. 7 Harm Reduction International (2011), The death penalty for drug offences, global overview 2011 – shared responsibility and shared consequences (London: Harm Reduction International), http://www.ihra.net/files/2011/09/14/IHRA_ DeathPenaltyReport_Sept2011_Web.pdf. 8 Mansfield, D. (2011), Assessing supply-side policy and practice: Eradication and alternative development (Geneva: Global Commission on Drug Policy), http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/ Global_Com_David_Mansfield.pdf. 10 CAVEAT | July-August 2012
  11. 11. In 2009, Indonesia enacted the Law No. 35 Year 2009 Regarding Narcotics.9 The goals of the Narcotics Law include guaranteeing the availability of narcotics to meet the National Annual Demand, protecting Indonesian people from drug abuse, eradicating illicit drug trafficking, and ensuring the rehabilitation for drug dependents.10 To achieve its goals, the Law imposes severe punishments against those involved in drug offenses, ranging from possession, ownership, buying, selling, trafficking, as well as misuse of drugs, with the hope that such punishments will bring deterrent effect.11 It also stipulates that drug dependents shall be required to undertake compulsory medical and/or social rehabilitation.12 As a derivative rule of this law, the government issued a regulation regarding compulsory report for those who have drug dependency.13 This harsh policy that applies minimum sentences has been in effect for almost four years. However, it appears so far that the goals to eradicate illicit drug trafficking and protect the Indonesian people from drug abuse are nowhere near from being accomplished. The number of drug offences recorded by the Indonesian National Police has actually increased by 11.64% from 2007 to 2011.14 Meanwhile, a study by the National Narcotic Board (BNN) has shown that the prevalence of drug abuse has increased by as much as 0.4% from 2008 to 2011.15 In terms of protecting the rights of drug users, findings by LBH Masyarakat shows that 87% of drug offenders have experienced some form of torture or other ill-treatment, 41.5% did not get access to healthcare, and 52% did not get access to legal aid.16 These numbers indicate that the Indonesian government has to evaluate its drug policies toward drug users, given that current policies have brought more harm than good. This article seeks to provide an overview of how Indonesian drug policies have failed to respect human rights of drug users. However, a detailed analysis of the problems is beyond the scope of this article. It will, therefore, only seek to evaluate fundamental issues of the policies. At the end of this article, it will offer some key recommendations to address the problems that emerged. The Failure to Differentiate Drug Users from Pure Drug Traffickers Has Led to Violations of the Right to Health Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)17 sets out that everyone has the right to health. According to the UN Committee on Economic, Social, and Cultural Rights, “health is a fundamental human right indispensable for the exercise of other 9 The Law makes reference to the 1961 UN Single Convention as well as the 1988 UN Convention in its Consideration section. 10 Article 4 of the Narcotic Law. 11 Para 5 of the Elucidation of the Narcotic Law. See also for example Article 111 Para (1) which sets that drug possession of First Category in form of plant is punishable by minimum 4 years and maximum 12 years of imprisonment; and fine of minimum approx. USD 89,000 and maximum USD 890,000. 12 Article 54 of the Narcotic Law. 13 Government Regulation No. 25 Year 2011 Regarding Compulsory Report for Drug Dependents. 14 Please see the Data on Drug Offense 2007-2011 released by National Narcotic Agency (BNN), posted on 31 April 2012, http://www.bnn.go.id/portal/_uploads/post/2012/05/31/20120531153207-10234.pdf 15 Badan Narkotika Nasional (2011), Ringkasan Eksekutif Survey Nasional Perkembangan Penyalahgunaan Narkoba di Indonesia, (Jakarta: Badan Narkotika Nasional), page 19, www.bnn.go.id/portal/_uploads/ post/2012/05/29/20120529145842-10263.pdf. 16 Please see the Brief Report of LBH Masyarakat’s Documentation on Human Rights Violations of Drug Suspects at the Investigation Stage in Jakarta, 2012. 17 Indonesia has ratified the ICESCR through Law No. 11 Year 2005. CAVEAT | July-August 2012 11
  12. 12. human rights.”18 Further, “everyone is entitled to the enjoyment of the highest attainable standard of health conducive to living a life in dignity.”19 In relation to drug use, the UN Special Rapporteur on the Right to Health, Anand Grover, stated that ‘the enjoyment of the right to health of all people who use drugs […] is applicable irrespective of the fact of their drug use.”20 Navanethem Pillay, the UN High Commissioner for Human Rights, has echoed the UN Special Rapporteur, saying that “individuals who use drugs do not forfeit their human rights.”21 It is a state’s obligation to guarantee the fulfillment of the right to health of its citizens, including drug users. Thus, any failure to provide access to rehabilitation for drug users, irrespective of whether the applicable laws allow for imprisonment, violates their enjoyment of the right to health. Therefore, it can be inferred that, firstly, states have to ensure that rehabilitation for drug users is available, that includes any form of treatment that are in line with human rights norms and are evidence based. Availability, in this regard, also includes the notion of accessibility, acceptability, and quality.22 Secondly, given that in the context of Indonesia drug users are criminalized, treatment for drug users shall be made available while they are facing legal process and/or while they are imprisoned.23 In a certain case, a drug user may be imprisoned for drug use only. However, she or he may also be imprisoned for drug use and/or drug possession and/or buying, because if one wants to use drugs one may need to buy it and possess it. Thus, the effective implementation of this second aspect requires the state to correctly identify those who are charged with drug offenses whether they use drugs or not. Drug offenses under the Narcotic Law, unfortunately, are not distinguished based on the subject or the (medical) status of the offenders, whether they are personal users or only traffickers. The law categorizes drug offenses based on the formal actions of the offenders at the time of their arrest, such as possession/ownership of drugs24, drug trafficking25, or conspiracy26. Drug users, in dependency or not, will likely commit some or all of these offenses. To use drugs, they may have to first buy it, and then bring it to a place where they can use it. Many of these offenses are punishable with minimum four years of imprisonment.27 Only personal drug abuse is punishable with maximum four years of imprisonment, with the possibility of being placed in rehabilitation.28 LBH Masyarakat’s observation revealed that as much as 66% of drug offenders were charged with 18 eneral Comment No. 14 of the Committee on Economic, Social, and Cultural Rights (CESCR) on the Right to G Health, para 1. 19 Ibid. 20 Report of the UN Special Rapporteur on the Right to Health, A/65/255, para 7. 21 High Commissioner calls for focus on human rights and harm reduction in international drug policy, http://www. UN ohchr.org/documents/Press/HC_human_rights_and_harm_reduction_drug_policy.pdf. 22 Please see General Comment No. 14 of the CESCR, para 12. 23 he question whether treatment is utilized by drug users is a different issue. On the one hand, they may access T drug treatment if they feel they require it. On the other hand, the government cannot force them to access drug treatment – given that treatment has to be voluntary. However, it appears that the Indonesian government tends to force drug users to access to drug treatment. Further analysis of this issue shall not be addressed in this article. 24 For plant-form of First Category of drugs, it is accused under the Article 111, meanwhile for other form of it is accused under the Article 112. 25 Drug trafficking-related activities are accused with Article 113 or Article 114 of the Narcotic Law. 26 Conspiracy will be charged to drug offenders if the offense is conducted by more than one person. See Article 132 of the Narcotic Law. 27 Among others Article 111 para (1), 112 para (1), and 114 para (1) of the Narcotic Law. 28 Please see Article 127 para (2) and (3) of the Narcotic Law. See also the Supreme Court Circular Letter No. 4 Year 2010 (SEMA No. 4 Year 2010), http://jdih.mahkamahagung.go.id/v1/index.php?option=com_remositoryItemid=1 8func=selectid=33. 12 CAVEAT | July-August 2012
  13. 13. drug possession, where 39% of them carried evidence of less than one gram of drugs. Meanwhile, from 27% of drug offenders charged with drug trafficking, 31% carried evidence of less than one gram of drugs.29 Considering the fact that drug users could also possess and buy drugs, offenders with less than one gram of narcotic might be users who need drug treatment rather than years of imprisonment. However, since the categorization is based on formal actions at the time of arrest, it is rare that an offender who is a drug user will be charged under the article of personal drug abuse. We cannot determine whether someone is an abuser or pure trafficker based merely on their formal activity or the gram amount at the time of arrest. These two factors are not the best criteria to determine whether or not someone is a drug user or a trafficker (who is not a user). The Narcotic Law does oblige to place drug users into rehabilitation centers, yet it fails to properly identify drug users when they are arrested for drug offense other than drug abuse. Many countries are now reforming their drug policies to include a more humane and effective approach. To name a few, the United Kingdom has instituted a de-penalization policy30 and the decriminalization policy undertaken by, among others, the Netherlands31 and Portugal32. These policies proved that they have been able to differentiate drug users and drug traffickers (who are not users). More importantly, however, they have shown that the prevalence of drug use did not increase in the years since these policies came into effect, contrary to the arguments advanced by the proponents of the so-called “war on drugs” – a term which brings us to the second part of our analysis of the problems.33 War on Drugs: Justification for Torture and Other Ill-Treatment against Drug Users Torture is defined as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act her or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of, or with consent or acquiescence of a public official or other person acting in an official capacity...”34 While, cruel, inhuman, and degrading treatment, or commonly referred as other ill-treatment, encompasses “…acts which do not amount to torture, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”35 It covers, inter alia, acts without elements of intent, acts that are not carried out specifically for the purpose as stated in the definition of torture, and 29 Please see Brief Report of LBH Masyarakat’s Documentation on Human Rights Violations of Drug Suspects at the Investigation Stage in Jakarta, 2012. 30 Millar, T., Jones, A., Donmall, M., and Roxburgh, M. (2008), Changes in offending following prescribing treatment for drug misuse, National Treatment Agency for Substance Misuse, http://nta.nhs.uk/uploads/nta_changes_in_ offending_rb35.pdf. 31 Please see the 2009 Annual Report of National Drug Monitor, http://english.wodc.nl/images/1730_full_text_tcm45296585.pdf. 32 Domostawski, A. (2011), Drug policy in Portugal: The benefits of decriminalizing drug user, (Warsaw: Open Society Foundation). 33 Please see the 2011 Report of the Global Commission on Drug Policy. 34 Article 1 of the Convention against Torture (CAT). 35 Article 16 of the CAT. CAVEAT | July-August 2012 13
  14. 14. acts aimed at humiliating the victim, even where severe pain is not inflicted.36 International human rights law categorizes torture as one of the most serious of crimes. The jus cogens nature of torture justifies states taking universal jurisdiction over torture wherever they are committed. International human rights law provides that jus cogens offenses may be punished by any state because the offenders are “common enemies of all mankind and all nations have an equal interest in their apprehension and prosecution”. Those who commit torture are classified as acting against humanity (hostis humanis generis).37 Indonesia has signed the UN Convention against Torture on 23 October 1985. However, it took thirteen years for Indonesia to ratify this convention, through Law No 5 Year 1998. Under the international law, Indonesia has obligations to take effective measures to prevent torture38 and to ensure that torture is categorized as a criminal offense and punishable under the criminal law reflecting its grave nature.39 To date, torture is not yet a crime under the Indonesian criminal code. Manfred Nowak, the former UN Special Rapporteur on Torture or Other Cruel, Inhuman, or Degrading Treatment, has highlighted that drug users are among those who are subjected to double discrimination. He has shown how torture is commonly used by government officials in dealing with “exceptional circumstances”. One such circumstance is the so called “war on drugs”.40 In their zeal to fight the “war on drugs”, law enforcement officers seem to prefer the ‘easier’ course of the war on drug users, rather than war on drug dealers. It is an easiest war to win, since they are fighting drug users who often are poor and uneducated. This has resulted in flagrant abuses to the rights of drug users. It is no secret that many of the acts involving violence practiced by the police amount to torture, often targeting low-profile criminals, including drug users. To obtain information about drug dealers, bigger dealers, and even the biggest dealers, it is suspected that torture is commonly used to extract such information. Even in fabricated cases, the police uses torture to make suspects confess to possession of drugs that they do not even know.41 Stories are abound on the employed by the police to torture drug offenders. They commonly include beating, kicking, pinning toes under table legs.42 These stories are confirmed by LBH Masyarakat’s documentation on the abuse of drug offenders’s rights, which revealed that as much as 86.6% of the respondents are subjected to torture.43 During his visit to Indonesia, Manfred Nowak indicated that the overwhelming majority of 36 Report of the UN Special Rapporteur on the question of torture, E/CN.4/2006/6 para 35, http://daccess-dds-ny. un.org/doc/UNDOC/GEN/G05/168/09/PDF/G0516809.pdf?OpenElement. 37 See Demjanjuk v Petrovsky, 603 F.Supp. 1468; 776 F.2d 571 (1985); Siderman v Argentina, 965 F.2d 699 (1992); Prosecutor v Furundzija, Case No. IT-95-17/1 (Trial Chamber), 10 December 1998; Prosecutor v Kunarac, Kovac, and Vukovic, Case No. IT-96-23 and IT-96-23/11 (Trial Chamber), 22 February 2001; Report by the Special Rapporteur for torture, E/CN.4/196815, para 3, 19 February 1986. See also General Comment No. 2 of the CAT Committee, CAT/C/ GC/2, 24 January 2008 which affirms the jus cogens norm of torture. 38 Article 2 para (1) of the CAT. 39 Article 4 para (1) and (2) of the CAT. 40 Report of the UN Special Rapporteur on torture and cruel, inhuman, degrading treatment or punishment, A/HRC/13/39/ Add.5, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/114/90/PDF/G0811490/pdf?OpenElement. 41 Please see Brief Report of LBH Masyarakat’s Documentation on Human Rights Violations of Drug Suspects at the Investigation Stage in Jakarta, 2012. 42 Ibid. 43 Ibid. 14 CAVEAT | July-August 2012
  15. 15. detainees interviewed revealed that ill-treatment was used primarily to extract information about drug suppliers in cases of drug-related crimes.44 However, only a few of the detainees had the courage to file complaints about their ill-treatment. LBH Masyarakat’s documentation shows that only one respondent reported the torture and other ill-treatment he had experienced to the Police Internal Affairs Division. Most of the respondents opted to remain silent. One of the respondents said that “it was my mistake to use drugs, so being tortured is a risk that I have to bear. Besides, what can I do? Police officers are so powerful. If I report torture, I will jeopardize my life, right?” Apart from the fact that many drug offenders are not aware of their rights to be free from torture and other ill-treatment, the information about mechanisms to report cases of torture is also hardly available to them. Under the Indonesian law, there are two mechanisms available for victims of torture to report their plight. The first mechanism is through the Police Internal Affairs Division, where acts of torture will be handled as a breach to the Police Code of Ethics. The second mechanism is through the criminal justice system, where torture will be treated as a form of maltreatment, which still requires victims of torture to report the crime to the police, in this case its Criminal Investigation Division. However, there are strong doubts that the police can, or is even willing, to seriously respond to the complaints of torture brought to (and against) them through these mechanisms, given that the alleged torturers are their own colleagues. Legal processes of both divisions, the ethics and criminal investigation divisions, tend to be unaccountable, lack transparency, and often proceed with undue delay. Additionally, it is difficult for torture victims to seek protection under the witness and victim protection mechanisms due to their detention in police stations. Torture victims, most of whom are also accused of criminal offenses, have very little chance to gather preliminary evidence if they are to file complaints. Many of them are denied access to health facilities after they experienced torture, and will be locked up in their cells until their bruises disappear. Even their family members and lawyers are often denied access to visit them. An effective protection scheme for victims of torture is, therefore, key to ensure that those responsible for such acts are brought to justice and do not enjoy impunity. Fundamentally, Indonesian criminal justice system is severely ill-equipped to properly address the problem of torture. Regrettably, none of the existing redress mechanisms reflects the grave nature of torture. Manfred Nowak made some recommendations following his visit to Indonesia, If the Indonesian government has a strong political will to adopt these recommendations, they may repair the damage that has been done. These include defining and criminalizing torture under the Indonesian law, reducing time limit of police custody, and establishing accessible and effective complaint mechanisms.45 Our observations show that the Indonesian criminal justice system is rife with serious flaws, enabling torture to be widely practiced with impunity. Indonesia’s war on drugs policy, which disproportionately target drug users, subjects those who are already vulnerable to torture. It is essential that the Indonesian government reforms its criminal justice system to address the 44 Please see the Report of the UN Special Rapporteur on torture: Mission to Indonesia, A/HRC/7/3/Add.7 para 22, http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/114/90/PDF/G0811490.pdf?OpenElement. 45 Report of the UN Special Rapporteur on torture: Mission to Indonesia, A/HRC/7/3/Add.7 Section IV. CAVEAT | July-August 2012 15
  16. 16. problem of pervasive torture by its law enforcement bodies. In order to do this, it must also alter its approach in dealing with the drug problem, mindful that the very problem is intertwined with its drug policies. We shall now move to our final section. Pursuing a Humane Indonesian Drug Policy The Universal Declaration of Human Rights has proclaimed that everyone is endowed with rights.46 They are inherent, universal, interdependent, interrelated, indivisible and inalienable.47 It means that those rights cannot be taken away from a person because they grow or use illicit drugs, or live with HIV.48 Human rights entail state’s obligations. As the duty bearer of rights, states have to ensure that their policies do not violate human rights. Drug use may have harmful health consequences. However, the current drug control approach has created more harm than the harms it sought to prevent.49 Grover argues that “a human rightsbased approach to drug control must be adopted as a matter of priority to prevent the continuing violations of rights stemming from the current approaches to curtailing supply and demand, and move towards the creation of a humane system that meets its own health-related objectives.”50 There are many other problems related to or may have been caused by Indonesian drug policies. The spread of HIV/AIDS in prisons, illegal entrapment by the police, and the over-capacity of prison facilities are just some of the problems. It seems that the these problems are on the increase, including human rights violations, yet there are no clear signs that drug abuse and illicit drug trafficking are decreasing. This indicates that the Indonesian government has to rethink its approach so far to deal with these issues, and ensure that a human rights framework is central to this approach. Drug addiction is closely tied to the issue of the right to health. This may be something that the Indonesian government needs to put priority on over its punitive approach. The right to health includes two aspects, freedom and entitlement.51 Reflecting the understanding of freedom aspect, the Indonesian government, on the one hand, has to respect the choice of individuals whether they use drugs or not. On the other hand, they have to provide as much relevant information as possible regarding drug use to the society in general and vulnerable groups in particular. They also have to provide access to effective and qualified treatment, as well as an enabling environment for drug users who want to stop their usage or addiction or those who just want to reduce the harm of using drugs. What is happening today is quite to the contrary. Access to rehabilitation is lacking and an adequate differentiation of drug users and drug offenders who are not users is absent. The information displayed by the government stigmatizes drug users and dehumanizes them as demons instead of seeing them as people who need treatment. The Narcotic Law also obliges drug users and their families to report their usage of drugs, which may deter individuals from seeking treatment 46 Article 1 of the Universal Declaration of Human Rights (UDHR). 47 World Conference on Human Rights (1993), Vienna Declaration and Programme of Action (A/CON.157/23), 12 July 1993, para1. 48 International Drug Policy Consortium, Drug Policy Guide, 2nd Edition. 49 Report of the UN Special Rapporteur on Right to Health, A/65/255, para 16. 50 Ibid, para 48. 51 General Comment No. 14 of the CESCR, para 8. 16 CAVEAT | July-August 2012
  17. 17. due to fears that such information will be shared with authorities, which could result in arrest and imprisonment.52 Drug users are indirectly encouraged to be an exclusive group due to their resistance to this condition. It will be hard for the government to attempt to treat their addiction and control the spread of HIV, and this further risks the health of the society at large since HIV will be undetectably transmitted. The government must stop campaigns that dehumanize and demonize drugs users. It may also have to rethink the policy of criminalization of personal drug use. Punitive approaches to tackle the issue of drug addiction has failed and should be replaced with a human rights-based approach that puts the human rights of the people who use drugs as priority. This includes, for example, paying greater attention to their right to health. Respecting the right to health of drug users will not only directly address their addiction, but also, to an extent, contribute to curbing illicit drug trafficking that the government has failed to resolve. If drug users can access drug treatment, their need of drugs from illicit sources will be reduced. This may be an oversimplification of the situation, but the evidence from other countries affirm this proposition. The Indonesian government must move towards a new, more humane direction for its drugs policy. Failure or delay to amend its policies will likely continue to undermine the rights of drug users even further. 52 Report of the UN Special Rapporteur on Right to Health, A/65/255, para 20. CAVEAT | July-August 2012 17
  18. 18. FROM OUR ARCHIVE Compulsory Reporting for Drug Dependents: A Brief Analysis By: Antonius Badar1 Introduction Indonesia has been attempting to address drug issues in many ways, which apparently and regrettably, has been more of a failure rather than a success. The government seems to be somewhat confused as to how it should tackle this problem. The number of drug dependents has not decreased despite the punitive approaches and extensive campaigns that demonize people who use drugs. In the last couple of years, the government has issued a number of regulations to provide drug treatment for people who use drugs, which in the end is expected to reduce the number of drug dependents. In April 2011, President Susilo Bambang Yudhoyono signed the Government Regulation Number 25 year 2011 regarding the Implementation of Compulsory Reporting for Drug Dependents. The Presidential Instruction Number 12 year 2011 regarding Rehabilitation National Strategy also focuses to strengthen the implementation of the compulsory report mechanisms, rehabilitation services, and development of rehabilitation facilities. The Minister of Health has also issued a number of regulations to support the technical implementation of the compulsory reporting. However, all of the regulations have been short of expectations. LBH Masyarakat identified, at least, four key problems with regard to these regulations. Firstly, the regulations sustain Indonesia’s half-hearted approach to decriminalize drug users. The objectives of those regulations are to provide treatment for people who use drugs, yet government’s attempts to incarcerate them continues. Secondly, it appears that the cooperation between government institutions to implement these regulations is somewhat lacking. Thirdly, the facilities for compulsory report and rehabilitation are poorly prepared. And fourthly, information on the rules and regulations of the compulsory report has not been provided thoroughly both to the medical practitioners who are or will be involved in the treatment as well as the community of people who use drugs. This article shall attempt to highlight some of the key problems that need to be addressed if the government intends to tackle it seriously and effectively. 1 Antonius Badar is Case Advocacy Coordinator of Lembaga Bantuan Hukum Masyarakat (LBH Masyarakat). 18 CAVEAT | July-August 2012
  19. 19. Treatment or Criminalization of Drug Users? In the past four years or so, LBH Masyarakat has encountered a number of cases in which people who use drugs have been arrested and charged for drug trafficking or possession. Article 55 of the Narcotic Law number 35 year 2009 instructs people who use drugs to report themselves in order to obtain medical and/or social treatment or rehabilitation. Yet, the Law also criminalizes them for personal drug use. Article 111 and 112 of the Law sets that drugs possession are punishable with a minimum of four years imprisonment and a fine of minimum eight hundred million rupiah or approximately ninety thousand US dollars. Thus, it is possible that drug users to be imprisoned for at least four years for possession. In other cases, drug users who are arrested and charged for buying narcotics and are suspected to be drug dealers may be charged under the Article 114 which sets a minimum of five years imprisonment and a minimum fine of one billion rupiah (one hundred and ten thousand US dollars). Unfortunately, Articles 111, 112, and 114 do not look at the background of the suspects. If they are drug users, therefore, the police could ignore their history of addiction and arrest them under those articles and gather evidence to prove those charges. In June 2012, LBH Masyarakat received five cases where the complainants who attempted to access treatment through community health centers (Puskesmas), were arrested because of drug possession. It is unfortunate that the police often ignores the background of the suspects when they arresting drug offenders. The police could have conducted a voluntary urine test, for example, to assess the background of the suspects, whether they are drug users or pure drug traffickers. They could also examine witnesses or work in collaboration with the National Narcotic Board (BNN) to assess drug offenders’ history in relation to drug use.2 If the investigation identifies that the suspects possessed or bought narcotics for personal use, the police should charge them under Article 127 of the Law regarding personal drug use and gather evidence to suggest to the prosecutor to place the suspects in drug treatment centers. This, however, hardly takes place. To ensure that the Government Regulation on Compulsory Reporting is well implemented, the police’s initiative from the beginning of a case investigation to identify the background of drug offenders is, thus, highly required. Failure to identify drug offenders as mere users will likely to result in sending people who use drugs to prison instead of rehabilitation. There may be people who use drugs who are able to access drug treatment or are placed in rehabilitation by law enforcement agencies. These people probably come from a better off economic background. As for those from underprivileged economic status, however, the situation may be quite different. The presence of an adequate legal assistance is likely to help people who use drugs to access such treatment. Unfortunately, not many legal aid institutes are willing to provide pro-bono legal assistance to people who use drugs. Lack of Cooperation between the Government Institutions Asmin Fransiska3, an advocate for drug policy reform, argues that one of the problems of law 2 This provision is regulated under the Regulation of the Head of National Narcotic Board (BNN) number 2 Year 2011 regarding the Procedures of Handling of Suspects or Accused of Narcotic Abuses, the Victims of Narcotic Abuses, and Drug Addicts. 3 Asmin Fransiska is a lecturer at the Atma Jaya Catholic University who has been long involved in the area of drug policy and coordinates the Indonesian Coalition for Drug Policy Reform (ICDPR). She raised this issue of the lack of cooperation between government institutions at LBH Masyarakat’s seminar held on June 25, 2012. CAVEAT | July-August 2012 19
  20. 20. enforcement is the lack of communication and cooperation between government institutions such as the BNN, National Police, Ministry of Health, and Ministry of Social Affairs. Nova Riyanti Yusuf, Vice Chairperson of Commission Nine of the House of Representatives – the commission whose mandate includes supervision of government’s health policies – shares Fransiska’s views.4 On the occasion of the International Day against Drug Abuse 2012, Riyanti Yusuf urged relevant stakeholders to improve their cooperation to overcome problems related to drug trafficking and drug abuse. She further highlights the compulsory reporting system that is poorly implemented. It seems that the relevant institutions have not synergized their efforts to ensure that an effective system of compulsory reporting is in place. For example, the Ministry of Health has interests in the matter of the right to health of people who use drugs, and, speaking of drug users, the BNN has responsibilities in this area too. Yet, their interests in this regard appear to be conflicting, if not incompatible. This issue has not been solved to date and the lack of a designated coordinator for a compulsory reporting system has made this situation worse. One may point out to the institutional ego that seemingly encourage each to work in isolation instead of building an effective cooperation. As we all know, law enforcement agencies, such as the police, prosecutor and judges, work to handle the criminal cases. When dealing with drug users, they should cooperate with other institutions such as rehabilitation centers or with the Ministry of Health, or Social Affairs, given that drug use is not just a criminal justice issue, but also a health issue. This desired cooperation, however, has been absent in most, if not all, cases. For people who use drugs who are arrested while they are undertaking their drug treatment, things become more complicated. The police are not interested to notify the treatment centers of the arrests, while treatment centers tend to disregard this condition. The centers would, perhaps, remove the drug users from their list of patients. This situation, of course, is disappointing. If the police and treatment centers had put the right to health of drug users as priority, they would have worked together. The police would seek information from the center, and the center would attempt to keep providing the medication much needed by the users. According LBH Masyarakat’s study, of 388 respondents, 109 did not get medical treatment upon their arrest.5 To address this problem, an effective communication between the relevant institutions is, therefore, urgently needed. Unprepared Facilities: A Tainted Commitment The Ministry of Health has identified 130 institutions that can handle compulsory reporting, that includes hospitals and community health centers (Puskesmas) spread over thirty-three provinces in Indonesia.6 However, it is highly unlikely that these institutions are all well-equipped considering that compulsory reporting has only been instituted since last year. Also, in general, the quality of health facilities in Indonesia are not even in every province: relatively better in big cities, and progressively worse the further away they are from urban centers in small cities and rural areas. In Surabaya, East Java, for example, two community health centers (Puskesmas Janggir and 4 Source: http://www.tribunnews.com/2012/06/26/cegah-narkoba-bnn-perlu-koordinasi-dengan-kemenkes-pemda, accessed on July 3, 2012. 5 Please see the Report of LBH Masyarakat’s Documentation on Human Rights Violations of Drug Suspects at the Investigation Stage in Jakarta, 2012, p. 138. 6 Minister of Health Decree Number 1305/Menkes/SK/VI/2011 on Compulsory Report Institutions. 20 CAVEAT | July-August 2012
  21. 21. Puskesmas Manukan) have not set up support facilities for compulsory reporting.7 The situation is similar in other provinces like Papua, Sulawesi, or Kalimantan. Different circumstances in each province, such as local regulations, religious, cultural and ethnic factors, may result in different implementation. In Banjarmasin, South Kalimantan, most people regard narcotics as a taboo subject.8 Drug users feel uncomfortable accessing treatment because the doctors who treat them would give religious talk instead of psychological support for treatment. It is understandable that adequate facilities with all its supporting elements, such as availability of medicine, professional medical practitioners, and adequate infrastructure require a lot of money. However, this is not merely a matter of financial commitment; it is a matter of political commitment as well. A general impression from some of the cities surveyed show that the government is not prepared to meet this objective. There is a problem of overcapacity in some institutions, while others are not well-equipped. With an estimated five million people who use drugs in Indonesia,9 each institution has to accommodate the needs of at least 38,000 people who use drugs. Clearly, 130 institutions are not enough to accommodate such high needs, and many drug users will be inevitably left out of treatment. This presents a double dilemma. On the one hand, the government intends to provide treatment for people who use drugs, but, on the other hand, the facilities are not yet adequate, invariably leaving large numbers of drug users at risk of being arrested. LBH Masyarakat’s experience in the past several months shows that the communities are quite pessimistic of the compulsory reporting because they do not have sufficient information about it, leading to different interpretations of it. Many drug users also are arrested when accessing treatment; this has made them more vulnerable and they question the effectiveness of the compulsory reporting. To address this dilemma, the government could consider implementing a diversion mechanism for drug users who are arrested, if decriminalizing drug use is problematic for the government. Cooperation with the civil society to provide adequate treatment for people who use drugs could also be useful. These options may not be the best answers to the complex problems aforementioned, but at least they would be worth trying. Information on Compulsory Reporting Is Poorly Provided Due to the criminalization of drug use, the communities of people who use drugs are discouraged to access drug treatment. Monitoring by the police also complicates this situation further, as they risk arrest anytime they purchase drugs for their personal use. This makes it difficult for the government to provide information regarding compulsory reporting. This information should directly target the drug users. But how can they convey the information to the right groups if they are difficult to reach and identify? There are also funding problems to provide proper information on compulsory reporting. In 7 Source:http://regional.kompas.com/read/2012/06/25/15383922/Instansi.Wajib.Lapor.Korban.Narkoba.Belum. Beroperasi, accessed on July 3, 2012. 8 Based on LBH Masyarakat’s Human Rights Education Series in Five Cities in Indonesia: Banjarmasin (South Kalimanta province); Makassar (South Sulawesi province); Mataram (West Nusa Tenggara province); Medan (North Sumatera province); and Surabaya (East Java province). 9 Source:http://regional.kompas.com/read/2012/04/29/02131235/Pengguna.Narkoba.di.Indonesia.Capai.5.Juta. Orang, accessed on July 3, 2012. CAVEAT | July-August 2012 21
  22. 22. Mataram, West Nusa Tenggara, for example, the Director of West Nusa Tenggara Mental Hospital says that compulsory reporting in their institution is not working properly, because funds from the governmental budget is not sufficient to conduct information sessions for community members.10 One solution that comes to mind is for the government to work together with outreach workers, who are often attached to harm reduction NGOs, who meet drug users on a regular basis. Through these outreach workers, information can be provided effectively at low cost. These workers can easily access the communities without any barriers as they are familiar with the communities and vice versa. It goes without saying that in order to do this job properly, the outreach workers must obtain correct information on compulsory reporting first. This, at least, should cost very little compared to providing massive untargeted information. Time to Move Forward The above are the four key issues LBH Masyarakat has identified that are faced by the government and experienced by communities of people who use drugs in relation to the compulsory reporting. The compulsory reporting itself was introduced in 2011. It is, therefore, understandable that problems would be inevitable in the first year of implementation. In spite of this, the government must take quick action to evaluate their efforts and work together with other relevant stakeholders to address these issues more effectively. Some initial recommendations have been provided here, but a further elaboration on the solutions is needed, including an assessment on the positive and negative aspects of the proposals. It should start with an analysis of the general problems in order for the concerned stakeholders to understand the bigger picture, which this article intended to provide. As the relevant stakeholders become fully aware of the issues, LBH Masyarakat seeks to offer a platform for dialogue for all of us to address the problems thoroughly. 10 Source:http://www.ntbterkini.com/2012/02/08/institusi-wajib-lapor-bagi-pecandu-narkotika-belum-optimal, accessed on July 27, 2012. 22 CAVEAT | July-August 2012
  23. 23. A LETTER F R O M JEMBER Dear friends, My name is Lubis Ubaid Prasetyo. I am currently studying law at Jember University (this is my first year), and I also a volunteer at LBH Masyarakat Jember office. I would like to share you my story – my personal experience while volunteering with LBH Masyarakat Jember. I have gained many lessons so far from LBH Masyarakat Jember. As a law student, I learned how to work effectively in a team to handle cases, how to do basic legal research and legal advocacy, and much more. My most memorable experience, a really big responsibility I had to undertake, was when I took part in a legal education/counselling project for detainees in a detention centre. I had to go there on a weekly basis, and at first I felt that it was boring as well as tiring. I did not find anything interesting doing that activity. A few months later, however, I felt something remarkable – something I can be proud of. In our legal counselling work, we do a follow-up to the cases we handled, and from there, I was able to learn of the essence of the project – from the project itself, from the cases that we followed up, and from the detainees that I assisted. These are lessons that I have not, and will not ever, get from my law school. I just want to share you briefly two cases where I was involved: poultry theft and theft of basic commodities. In the former case, Irfan (not a real name), 18-years old, was caught red-handed stealing a duck in a house with his friend. This was the first case I was involved, so I did not know much about anything. As a law student I still had no idea what to do and how to solve legal issues. Week after week, I ran away from that case. I did go to the court few times to attend the hearing, and I saw that Irfan was already assisted by other lawyers, so it made me even lazier to take part in that case. Slowly but surely, I stopped participating in the counselling project altogether and did not see Irfan anymore. Until one time, Dhoho Sastro, Director of LBH Masyarakat Jember, inquired me about the case. He was not mad at me, but I knew he was disappointed at me. I felt guilty about that. Clearly, I had been irresponsible. That was my first case. I learned my lesson and I promised I would never leave my responsibility again. CAVEAT | July-August 2012 23
  24. 24. Then came the second case, theft of basic commodities committed by, let’s call him, Rio, 16-years old. I got this case when I took part in another legal counselling project. I took up this case because I wanted to show that I can be a responsible person. Also, I was interested in this case because Rio told me that his school would drop him out if the court found him guilty and the verdict is declared before the announcement of the national exam’s result. I do not know much about human rights yet, but I believed that there was a potential human rights violation committed by the school. Rio was allowed to take the national exam before. But why would he be dropped out by the school only because he might be found guilty by the court – even if he passed the exam? So I started to do my work. First, I needed to clarify Rio’s story to his school. I came to his school which was quite far away from my house, about an hour of travel by motorbike. When I got there, all the teachers kept silent about Rio. I wanted to meet the principal, but he was not to be found in his office at that time. So I made an appointment. The next day, I went there again with my colleague, Ainul. He is a third-year law student who often helps me with some difficult legal issues. When we got there the second time, the principal was not in his office again. But some of the teachers were willing to talk to us. Based on what they said, we found out that actually the school itself was not sure about how to deal with this issue. They argued that the society already knew what Rio had done so the society already stigmatised Rio as a bad criminal. However, we gave an explanation to the teachers there that Rio did not deserve to be imprisoned and be dropped out only because he would be found guilty. We argued that according to the Child Protection Law, children who face legal process shall be afforded special treatment. Court verdicts should be made in accordance with the best interest of the child. We questioned the school’s policy in Rio’s case which we believed was not in line with the law and human rights standards. After hearing our explanations, they agreed to cooperate with us. They asked us to provide a written legal opinion to support our argument for them so they can take raise this issue with the principal. On that night, we decided to start drafting the legal opinion with the direction from Dhoho. We had to finish it as soon as possible so we did not waste our time. We did legal research on relevant laws and articles, using Child Protection Law, Juvenile Law, and the Convention on the Rights of the Child. We drafted it. We argued among us to ensure that the arguments presented were solid. We had to race against time, because we only had three days before the announcement of the exam’s result. Two days later we came again to the school and we gave them the legal opinion. They used our legal opinion in their internal meeting to discuss this matter. On the following day, the announcement day, we were informed by the school that Rio has passed the exam. And even if the court found him guilty, Rio would not be dropped out from the school. What good news! We were so happy to hear that information. I felt proud. I really did. I thought I had done something good. It was a good come back for me. This case helped me to restore my confidence that I can really do something positive for those who experience injustice. I am more determined that although I am just a law student and I may not know much about the laws just yet, I still can contribute for a good cause. It has been a really memorable and enriching experience, and I look forward for my next adventure in the near future. ~ Regards, ~ Lubis Ubaid Prasetyo 24 CAVEAT | July-August 2012

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