Revisiting Indonesia’s New Criminal Code: A Missed Opportunity to End Legal Uncertainty in Drug Policy

Penulis: Adery Ardhan Saputro

On 6 December 2022, Indonesia’s House of Representatives finally approved a new Criminal Code, in discussion since the 1970s. The Code replaced Indonesia’s outdated penal code, which was a remnant of Dutch colonial rule. However the new law has faced a groundswell of criticism nationally and internationally, mostly focused on the criminalisation of extramarital sex and cohabitation outside marriage, alongside the suppression of civil liberties including the freedom of speech. Regrettably, there has been less public discourse on other changes brought by this new criminal code, including in relation to drug offences, which are likely to have wide-ranging negative impacts on people.

The intriguing question is whether Indonesia’s new Criminal Code can solve the government’s concerns with the supply of drugs. Before the introduction of the Code, the country’s drug policy was essentially contained in the Narcotics Act No. 35 (2009), which stipulates the use and supply of drugs as offences. The enforcement of the Narcotics Act has resulted in over 60% of people held in Indonesia’s prisons being deprived of liberty for drug-related offences. Moreover, according to government data, people criminalised in relation to possession offences made up roughly 29% of the total number of drug cases in 2020. The country’s drug policy has led to overcrowding whereby the national prison system has exceeded its maximum occupancy twice over (i.e. 101.25 % over capacity). There is potential for Indonesia’s new Criminal Code to solve this issue by revisiting the approach in criminalisation of drug-related activities under the Narcotics Act.

The enforcement of the Narcotics Act has resulted in over 60% of people held in Indonesia’s prisons being deprived of liberty for drug-related offences.

 Indonesia’s Vice Minister of Law and Human Rights, Edward Omar Sharif Hiariej, claimed that the new Criminal Code could reduce the numbers of people who use drugs in Indonesia, as it outlines improved approaches to managing the use and supply of drugs. Therefore, it is pertinent to assess whether the approach to drugs under the new Criminal Code is better than under the Narcotics Act. This article aims to make that assessment by analysing the penalties and sentences for people who use drugs and people involved in the supply of drugs.

Penalties and sentencing of drug offences under the Narcotics Act No. 35 (2009)

Drug trafficking offences (which cover both possession and supply) are covered in articles 111 to 126 of the Narcotics Act. For example, article 111 stipulates a minimum sentence of four to twelve years of imprisonment for the planting, ownership, possession, storage, control, or provision of drugs. This means that people who use drugs are criminalised under the same provisions as people involved in supply and can be sentenced accordingly.

The provisions related to ‘drug abuse’ are stipulated under article 127(1) (a) and (2). These state that people arrested for using drugs that are listed in Category I (e.g. cannabis, methamphetamine, heroin or MDMA), are liable to be sentenced to up to four years imprisonment, which could be replaced by entry into a drug rehabilitation programme.

A judge can order the defendant to enter into a rehabilitation programme (rather than four years imprisonment), but only if the defendant can prove that they use drugs, but do not own, possess or store drugs. Since it is easy for police officers to establish possession and storage rather than use itself, there is a tendency to charge people who use drugs under the harsher article 111 instead of article 127. This is seen in a study carried out by the Indonesian Judicial Research Society (IJRS), which analysed legal facts of a number of cases and showed that 44.6% of those charged with trafficking are ‘end users’ and 24% are merely involved as ‘couriers’.

44.6% of those charged with trafficking are ‘end users’ and 24% are merely involved as ‘couriers’.

Furthermore, 40.6% of people charged with drug trafficking offences were in possession of quantities officially considered below one day of consumption (less than 5 grams for cannabis, and less than 1 gram for methamphetamine). This criminalisation concerns 246 people out of the 616 people included in the study. And the amounts are so small that they could be, under existing official guidance, considered as intended for personal use, and therefore charged under article 127. If they had been sentenced under article 127, they could have been offered rehabilitation instead of given a sentence to four years in prison. Although the IJRS study (refer Figure 3.8 on p. 104) also shows problems arising from the fact that 92.3% of 745 defendants convicted under article 127 were sentenced to imprisonment only.

The overlapping application of articles 111 and 127, and its effects illustrated by the IJRS study, proves that Indonesian law enforcement prefer to prosecute people with charges that result in harsher penalties such as terms of imprisonment. As a result, the next question is whether the Indonesian Criminal code can solve the problems with the application of articles 111 and 127. To answer this question, we must first take a look at the provisions relating to drugs in the Criminal Code.

Penalties and sentencing of drug offences under the new Criminal Code

Articles 609-611 of the new Criminal Code outline the provisions on drugs, without distinguishing between whether the defendant is a person who uses drugs or who is dependent on drugs. As mentioned before, the root cause of the overlap between articles 111 and 127 of the Narcotics Act is the definition of drug trafficking offences as encompassing the possession and storage of narcotics. The Criminal Code does not disentangle these different levels of involvement in drug markets or individual situations in relation to drugs and drug use. Drug offences related to use and supply are all lumped under article 609. In this way, the new Criminal Code does not address the tensions between these offences and existing overlaps, therefore failing to address a crucial innate problem in Indonesia’s existing drug laws with regard to proportionality.

Decriminalising the personal consumption of drugs could save lives and bring an end to the needless criminalisation of some of the most vulnerable members of our society.

To conclude, although the Criminal Code was intended to improve laws and regulations under the criminal justice system, it has not done so in relation to drug use and trafficking. The Indonesian Government could more than halve the prison population by removing the overlap in the definition of people who use drugs and people who are involved in the trafficking of drugs. This could be done by decriminalising the personal consumption of drugs, which could save lives and bring an end to the needless criminalisation of some of the most vulnerable members of our society.

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