Abuse of Substance, Restorative Justice and Diversion

Law and Justice in a Globalized World – Harkrisnowo et al. (Eds) © 2018 Taylor & Francis Group, London, ISBN 978-1-138-62667-6 Abuse of substance, restorative justice and diversion S. Asa & S. Fitriasih Faculty of Law, Universitas Indonesia, Depok, Indonesia ABSTRACT: The Indonesian National Narcotics Board (NNB) reported that it is estimated that there were 5,000,000 drug abusers in 2015, ± 4% of whom were suspects in drug cases. It was also confirmed that 81,360 of 187,701 prisoners were contributed by drug cases. Prisons are overcrowded, and today Indonesia is in a state of ‘drug emergency’. A qualitative study using documentary research using a descriptive analytical approach was designed to examine the possibility of implementation of restorative justice and diversion to help overcome the problem of drug addicts contributing to prison overcrowding. The concluding points of the study are; first, rehabilitation has not been properly implemented because of the dilemma in determining a drug abuser either as a medical patient or as an offender. There are some domi- nant factors: unclear definition of user, abuser, addict and victim; no protocol for rehabilitation before adjudication; absence of regulations to that allow minimum hand-carry of drugs for user; and lack of engagement of community in drug rehabilitation program. Second, restorative justice and diversion should be implemented through the Criminal Justice System (CJS) to enable the education of life skills, job training, circle and community conferencing program, even after prison treatment. Third, narcotic law should be amended to: differentiate or strictly define illicit drugs as a serious crime yet drug abuse as a misdemeanour; settle restorative justice and diversion; and reorganise the roles of the Indonesian National Police (INP), NNB, related ministries: Health, Social Affair, Law & Human Rights and local government. 1 INTRODUCTION Indonesia’s reaction to drugs problems has been typified by a repressive and punitive approach. The enactment of Indonesian Law No. 22/1997 on Narcotics and Law No. 5/1997 on Psychotropics that was later revised into Law No. 35/2009 generated a number of problems, including clarity on drug use, drug dealing, traffickers, dealers and individuals found in possession of drugs and their punishment. The application of this repressive and punitive approach has failed to effectively kerb the war on drugs as marked by the increase in the number of drug users (Nasir, 2011). This paper is intended to criticise efforts to tackle protracted drug abuse that has escalated during the last decade, resulting in Indonesia’s declaration of a state of drug emergency. The discussion is on the three main questions: Why is the number of drug abusers increasing yearly? What has been done to tackle drug abuse? Can restorative justice and diversion (RJ & D) be applied to overcome drug abuse? The aim is to discuss the possibility of the implementation of RJ & D to overcome the drug abuse behaviour which constitutes a criminal act punishable by up to four years of imprisonment (with further mandatory rehabilitation when the perpetrator is addicted), in anticipation of contributing to better handling of drug problems in Indonesia. 2 METHOD The discussion is based on a qualitative study that rests on documentary research and is presented in a descriptive analysis of the three research questions above. A number of laws, 101 policies, studies and secondary relevant documents and literature were reviewed to answer the research questions. 3 RESULTS AND ANALYSIS In 2014 a study conducted by the National Narcotics Board (NNB) and Universitas Indo- nesia’s Health Research Centre estimated the number of drug abusers to be 3.8–4.1 million, or 2.1–2.25% of Indonesia’s total population (NNB, 2015). The data are supported by the increase in the number of major types of drugs seized, such as marijuana, methampheta- mine, ecstasy and heroin and the number of users who became suspects. The number of suspects increased significantly; there were 17,326 in 2006, 26,461 in 2010 (NNB, 2015, p. 1), and 363,737 in 2015 (INP’s Directorate of Drugs & NNB, http://www.bnn.go.id). The number of first-time abusers or the number of five times a year users has continued to increase in the last decade. In some provinces first-time users also increased significantly from 481,466 in 2008 to 751,786 in 2011 and later in 2014 up to 891,490 (NNB, 2015, pp. 103–136). The Republic of Indonesia’s Supreme Court [Mahkamah Agung Republik Indonesia] reported an increase in narcotic cases during 2010–2014. It revealed that besides cases decided by lower courts under the Supreme Court, 512 cases (16.67% of 3,072 narcotic cases) were appealed and reviewed in 2010 (Supreme Court, 2010). This number increased to 792 cases in 2014, or 29.11% of 2,721 cases (Supreme Court, 2014). The increase has led to overcrowded prisons. Prison occupancy is dominated by drug inmates, convicted as abusers, drug retailers, dealers or manufacturers. According to the General Directorate of Corrections (Direktorat Pemasyarakatan) and the Ministry of Jus- tice and Human Rights (Kementrian Hukum dan Hak Asasi Manusia [Kemenhukham]), the majority of prison occupancy is made up of 56,326 narcotic inmates (or 92.39% of 60,961 special crime inmates). If the occupants and the capacity of occupancy are com- pared, the prisons will continue to experience a shortage of space, that is, 37,344 in 2006; 26,461 in 2010; 47,392 in 2012, and 53,841 in 2014. The overcrowding condition has trig- gered frequent violence, persecutions, rebellions, fights, drug smuggling and escapes (Kemenhukham, 2014, p. 18). In 2011 the President issued Instruction No. 12/2011 for combatting drug abuse and illicit trafficking (Pencegahan Pemberantasan Penyalahgunaan dan Peredaran Narkotika [P4GN]) manifested in three national policies that aim to: provide an increase of infulnerabulity of 97.2% of the population from drug abuse and illicit trafficking; thoroughly crush drug syndicates; and gradually provide medical and social rehabilitation services for up to 2.8% of drug abusers (P4GN Policy, 2012). The government also issued Government Regulation No. 25/2011 for the implementation of Law No. 35/2009 on Narcotics that requires the reporting of drug addicts and the joint regulation by the Chief Justice, the Minister of Law and Human Rights, the Minister of Health, Minister of Social Affairs, the Attorney General, the Chief of the Indonesian National Police and the Head of NNB regarding the control of drug addicts and victims of drug abuse in correctional institutions through an assessment of a Tim Asesment Terpadu Integrated Assessment Team (TAT). A press release on the development of P4GN reported that throughout 2015 the NNB revealed that of 102 cases of narcotics and money laundering by national and interna- tional syndicates, 82 cases are to be tried in court. Total assets seized are equivalent to IDR 85,109,308,337. Up to mid-2015, 55 persons convicted of narcotics cases were sentenced to death, and 14 persons were on death row waiting for executions. In 2015, the NNB, government and communities rehabilitated 38,427 abusers, addicts and narcotic abuse victims. The law defines an abuser as a person who uses narcotics without rights or against the law, while an addict is a person who uses or abuses narcotics and is in a state of dependence on drugs, both physically and psychologically; and a victim of drug abuse is a person who uses drugs not by their own will and without intent, but who has been coaxed, tricked, deceived, coerced, and/or threatened to use them (NNB, 2015). 102 Despite the noted progress, the implementation of various policies has not shown encour- aging results. The illicit trade in narcotics is still widespread and massive. With the help of technology in transportation and information the perpetrators continue to develop new substances and renew their modus operandi. The illicit practice of drug trafficking has eco- nomic benefits as its main motive and is controlled by a transnationally organised crime body known as the mafia. Indonesia is now become market in which drug are sold in a high price rather than was only a transit country. Drug abuse is increasingly prevalent in all walks of life. The overlapping operational policies and the lack of coherent technical guidelines related to minimum possession versus the definition of drug abuse have been identified as the main causes. Now efforts are needed to reduce the number of first-time abusers to prevent an increase in the number of future suspected abusers and a later subsequent increase in the number of those in need of medical and social rehabilitation. The increase is likely due to the fact that addiction is a chronic brain disease which often recurs (Leshner, 1997), and about 45% of rehabilitated addicts have failed and relapsed during the resocialisation process (United Nations Office on Drugs and Crime [UNODC] & World Health Organisation [WHO], 2009). A social rehabilitation programme is required to prevent more abusers from experiencing a relapse. Families’ and local community’s acceptance, participation of community leaders and religious leaders, and life skills programmes through RJ & D should be considered. RJ emanated from the previous philosophy of convictions: retribution, deterrence, rehabilitation and restitution were unsatisfactory (Mackenzie & Stobbs, 2010, p. 42). Related to the RJ approach as the philosophy of punishment, Tony Marshall states: Restorative justice is a process whereby all the parties with a stake in a particular offense come together to resolve collectively how to deal with the aftermath of the offense and its implications for the future. (Braithwaite, 1999, p. 3). Tony Marshall statement asserts four things: the parties as stakeholders such as perpetrators, victims and society; who are specialised in specific criminal acts; understanding of their effects; and the efforts of stakeholders to jointly resolve the consequences for better future.

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