Indonesia does need the death penalty to deter drug traffickers
International pressure has mounted on Indonesia in recent months to stop its enforcement of the death penalty. President Joko “Jokowi” Widodo ordered the execution of six convicted drug traffickers, five of whom were foreign nationals, in January. Another group, including Australian duo Andrew Chan and Myuran Sukumaran, has been told that they will be executed on the island of Nusakambangan on Tuesday – now that various legal appeals have been exhausted.
Despite international concern, Jokowi should maintain his tough anti-drug stance for a number of reasons. Indonesia’s drug problem is a state of emergency. It holds a sovereign right to enforce the law within its territory and its enforcement of death penalty does not violate international law.
Millions of people are affected by drugs in Indonesia. According to the National Agency for Narcotics (BNN), one million people are addicted to drugs with little chance of recovery. Around 1.6 million people occasionally take drugs while 1.4 million are regularly consumers.
Indonesia is Southeast Asia’s drug hub. BNN – along with customs and police – have confiscated large quantities of drugs. In January this year, the police confiscated 8.1 kilograms of crystal methamphetamine. Last year, BNN confiscate 157 kilograms of crystal meth in a drug bust in Jakarta, and the year before, the police confiscated 9.9 kilograms of crystal meth.
Each day, more than 30 people die of drugs according to BNN estimates.
Some have challenged the accuracy of data provided by BNN, doubting the government’s claim that Indonesia is facing a drug crisis that warrants the executions of convicted drug traffickers. However, these considerations should not divert attention from Indonesia’s efforts to combat drug abuse.
Indonesia’s estimates on drug use were jointly produced by BNN and a reputable research center, the University of Indonesia’s Centre for Health Research. They used scientifically based research methodologies and have considered the margin of error carefully in their studies.
So far, Indonesia does not have any other data than BNN’s 2008 studies. Experts admit that new data will provide stronger estimates than what is currently available. However, conducting a survey on Indonesia’s large population is not easy.
We cannot ignore the victims of drug abuse just because the harm cannot be accurately quantified. It’s better to believe the worst situation of drug abuse based on BNN’s data and by looking at the realities in Indonesian communities.
In a personal interview, the head of the BNN said that the government has allocated additional funding to reduce the demand for drugs. Under a new policy, drug users are not sent to jail but sentenced to mandatory rehabilitation. The program targets at least 100,000 people to recover from drug addiction a year.
Under this policy, no drug user will be sent to prison. Only those who trade and gain profit from illegal drugs will be criminalised.
A sovereign right
Indonesia’s move to enforce the death penalty on convicted drug traffickers is protected by the principle of state sovereignty. Under this principle, Indonesia has the freedom to make and apply laws within its territory and on its citizens wherever they are without any interference from other states or entities.
Since the development of international law, the concept of state sovereignty has been the main foundation of the system of relationships between countries.
Indonesia is a party to the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. In addition, to ensure the fulfilment of its human rights, Indonesia became a party to the International Covenant on Civil and Political Rights (ICCPR).
Indonesia has the authority to enforce these laws on anyone, including foreign nationals in Indonesia’s territory. Other states must not pressure or interfere in Indonesia’s domestic application of the law. If other states intervene, it can be considered a violation of customary international law, which gives the right for Indonesia to retaliate to redress interventions.
Compliance with international law
Indonesia is not violating international law in upholding the death penalty. Under the anti-drug trafficking convention, Indonesia is still allowed to apply the maximum penalty as deemed appropriate by the state to provide a deterrent to drug trafficking crime.
Indonesia has enshrined the death penalty into law in its 2009 anti-drug law. And in a 2007 judicial review, the Constitutional Court ruled that the death penalty was in line with Indonesia’s constitution.
Some human rights activists argue that Indonesia is obliged to respect the right to life as stipulated under the ICCPR. They suggest Indonesia should abolish the death penalty. But Indonesia provides all death row convicts equal opportunities to appeal. And after all legal proceedings have been completed, people on death row can request clemency to the president.
Some have indicated that some courts’ procedures and rulings have been corrupted. But we cannot generalise the whole proceedings of Indonesian courts to be corrupt. Notorious decisions based on fraud and corruption were committed by small number of judges. Indonesia’s legal system is not perfect, but the country is not a failed state in upholding the rule of law.
Indonesia’s stance on the death penalty is in accordance with Article 6 Paragraph 2 of the ICCPR, which states that countries may impose the death sentence “only for the most serious crimes in accordance with the law in force at the time of the commission of the crime”.
Some might disagree and condemn the execution of convicts before the firing squad. However, we should also think about the victims of drug abuse who have died and those who are now suffering.
Considering the grave threat drugs pose to Indonesia’s younger generations, the Indonesian government should continue its forceful policy against drug-related crimes.
Arie Afriansyah is a lecturer at the Faculty of Law Universitas Indonesia. He is also the Chairman of Djokosoetono Research Center Faculty of Law Universitas Indonesia; the Editor in Chief of Indonesia Law Review, and the Senior Associate Editor for Indonesian Journal of International Law. This article was originally published on The Conversation. Read the original article.