You are a foreigner caught by the Indonesian police with narcotic drugs in your possession.
The note below discusses how the Indonesian police may deal with you in such an unfortunate scenario.
Narcotics Law
In practice, there are at least two articles that are often used to charge drug offenders: Article 111 and Article 127 of the Narcotics Law (LAW OF THE REPUBLIC OF INDONESIA NUMBER 35 YEAR 2009 ABOUT NARCOTICS)
Article 111 provides that any person who without rights or against the law plant, maintain, own, storing, controlling, or providing narcotics group I in the form of plants, shall be punished with imprisonment for a minimum of 4 (four) years and a maximum of 12 (twelve) years.
Article 111
(1) Any person that without right or against the law planting, maintain, possess, store, control, or provide Narcotics Category I in the form of plants, shall be punished with minimum imprisonment of 4 (four) years and a maximum of 12 (twelve) years and a minimum fine Rp 800.000.000,00 (eight hundred million rupiah) and maximum Rp 8.000.000.000,00 (eight billion rupiah).
(2) In the case of the act to plant, maintain, possess, store, control, or provide Narcotics Category I in the form of plants referred to in paragraph (1), has a weight more than 1 (one) kilogram or more than 5 (five) trees, the offender shall be punished with imprisonment for life or minimum imprisonment 5 (five) years and a maximum of 20 (twenty) years and a maximum fined referred to in paragraph (1) plus 1/3 (one third).
Cateogory I narcotics/drugs include heroin, methamphetamine, and a number of other substances. Under the current law, article 113 provides that a person who produces, imports, exports, or distributes Category I drugs in plant form weighing more than one kilogram, or in non-plant form and weighing more than five grams, may be sentenced to death, life imprisonment, or imprisonment for between five and twenty years. Even though the judges have a discretion to decide whether to impose life imprisonment or death penalty, there seems to be a disturbing trend on the imposition of the death penalty as noted by Amnesty International.
Article 127 provides that an person consuming narcotics class I, II, III for himself may be sentenced to a maximum imprisonment of 4 (four) years, 2 (two) years and 1 (one) year respectively.
Article 127
(1) Every abusers:
-
- Narcotics Category I for themselves shall be punished with imprisonment of 4 (four) years;
- Narcotics Category II for themselves shall be punished with imprisonment of 2 (two) years, and
- Narcotics of category III for themselves shall be punished with imprisonment of 1 (one) year.
(2) In deciding the case referred to in paragraph (1), the judge shall also consider the provisions of Article 54, Article 55, and Article 103.
(3) In the case of abusers referred to in paragraph (1) may be proven or proved to be a victim of abuse narcotics, the abusers shall undergo medical rehabilitation and social rehabilitation.
Person caught be Article 111 will not be eligible for the alternative to criminal sanction ie diversion which is only available to drug offenses publishable with 7 years or less.
Diversion would be available where the accused is charged under the consumption offense – Article 111.
The bad news is that the police can be indiscriminate in preferring charges against the accused – under either Article 111 or Article 127.
It is therefore important to intervene early on in the police process to steer towards the less prejudicial consumption provision Article 111 instead of the possession/trafficking provision Article 127.
Right to counsel
Right to counsel is provided for in the Criminal Procedure Code. It is doubtful whether the police always inform an accused person of this right but one thing that is for sure is that the police will need to comply wherever the accused voices his request – and that is provided the accused is aware of this right and can afford for it.
But what if the police deny this request hoping that they could get away with it denying that the accused never make any request for legal counsel. It becomes a case of the police word against the accused’s.
The more effective avenue is for a lawyer to make such request. If the request is denied, the lawyer can make a pretrial request to the court enforcing this right. Typically, the threat of a pretrial request is sufficient for the police to yield.
It is important to have counsel accompany the accused at all stages of police questioning/interrogation. This is important for the protection against police abuse such as use of physical violence and use of improper inducement to extract confession – inducement could be in the form of promise of lenient treatment or lighter sentencing. It is important to remember that the police has no such powers to promise lighter sentencing because this power lies exclusively within the public prosecutor purview.
How does one get legal counsel involved? You will have to be aware of this right and make your wishes for legal counsel known to the police immediately. Or if you are not the accused and it is your loved one that is detained by the police, you should appoint counsel immediately to attend at the police station to demand to meet the accused person. It is unsafe to be “cooperative” during police questioning hoping to be in the good books of the police.
Risk of not having counsel – studies have been conducted about the consequences of not having legal counsel. This is reported from ICJR (see link):
“The Institute for Criminal Justice Reform reported “rampant” psychological torture during the investigation phase against individuals who are not accompanied by a lawyer, together with instances of physical and even sexual abuse.”
See also this page on criminal/police investigation generally
Death penalty
Since 2013 which was the end of the three year moratorium on handing down of death penalty, there has been a noticeable increase in court verdict imposing the death penalty. Legal observers consider the trend as motivated by populist fuelled by calls from the political leaders who have declared “war on drugs” because of the public’s perception of the worsening drug problem.
This was what President Widodo did, decrying drugs as national threat, blaming the weak judicial system in dealing with the threat. The judiciary response with increase in meting out the death penalty is not unexpected but not necessarily the solution to the problem because most observers believe that those put to death are low level dispensable mules which are in ready supply to the crime syndicate bosses – to replace any mule that is caught and sentenced to death.
So getting tough on drugs means imposing the death sentence even though the judges have the discretion to decide between life imprisonment or death penalty.
The pressure from the over crowded prison system also meant that the death penalty offers a convenient solution instead of adding more permanent residents to the prison cell blocks.
Because Indonesian judges are under intense public scrutiny in drug cases where the quantity of the drug potentially attracts the death penalty, it is important to have a strategy to manage the media and public relations aspect especially where the accused is a foreigner who is more likely to come under the media spotlight.