Written by: Sarabjit Singh Sandhu
Narcotics offense is one of the criminal acts which are considered as an extraordinary crime because it is trans-national and the modus operandi is carried out by massive and high technology. In Indonesia, a narcotics offense is no longer a strange offense and has become one of the special concerns of the government. The law which regulates narcotics offense has existed since 1976 through Law Number 9 Year 1976, then replaced with Law Number 22 Year 1997 which was later revoked and replaced with Law Number 35 Year 2009 (“Narcotics Law”). The amendments of the law show that narcotics offense in Indonesia is growing from day to day so that more serious treatment and strict regulation are needed. However, the improvement of the law seems not to pay attention to various aspects of justice and the principle of legal expediency, which one of them is the focus of this article.
In social life, the term of narcotics addicts is certainly more often/widely used than the drug abusers. In fact, maybe most people can not distinguish the two terms and interpret them the same that is the term for people who use narcotics. In the Narcotics Law, the two terms are different, both definition and punishment for each of the perpetrators. As stipulated in Article 1 of the Narcotics Law, the understanding of both is regulated as follows:
“13. Narcotics Addicts are people using or abusing Narcotics and in a state of dependence on Narcotics, both physically and psychologically”.
“15. Abusers are people who use Narcotics without rights or against the law”.
Based on the above definition, the obvious difference between the two terms is the condition for using narcotics, whether just using or using in a state of dependence. A person can be called a narcotics addict if it can be proven that he/she uses narcotics because of dependence. Whereas a person can be called a narcotics abuser if it is proven that he/she uses drugs illegally regardless of whether a state of dependency or not (it should not be in a state of dependence, because if it is already in a state of dependence, it is considered an addict).
If the Narcotics Law regulates it differently as explained above, then the next question is, how are the treatment and punishment, is it regulated differently too? Yes, it is regulated differently. However, the problem is not because it is regulated differently, but there is the unfairness for the treatment of both offenses by Narcotics Law. Yes, it is regulated differently. However, the problem is not because it is regulated differently, but a sense of injustice arises over the treatment of these two offenses by the Narcotics Law. It can be seen from the following table:
|Article 54 of Narcotics Law||
“Narcotics addicts and victims of abuse of Narcotics shall undergo medical rehabilitation and social rehabilitation.”
Explanation of Article 54:
“Victims of Narcotics abuse” means someone who accidentally uses Narcotics because he was persuaded, deceived, forced, and/or threatened to use Narcotics.”
|Article 127 of Narcotics Law||
(1) Every Abuser:
a. Narcotics Category I for themselves shall be punished with imprisonment of 4 (four) years;
b. Narcotics Category II for themselves shall be punished with imprisonment of 2 (two) years; and
c. Narcotics Category III for themselves shall be punished with imprisonment of 1 (one) years.
(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.
What is clearly visible from the table? For narcotics addicts, it is clearly and explicitly stated obligatory for medical and social rehabilitation. However, for abusers there is a threat of imprisonment, he/she can undergo rehabilitation only if it can be proven that he is a victim of abuse. In other words, everyone who uses narcotics but not yet in a state of dependence, threatened with imprisonment as stipulated in Article 127 paragraph (1) of the Narcotics Law.
Related to these provisions, if we look at the fact about Indonesian criminal law enforcement currently, which still aims to frighten and/or provide a deterrent effect through imprisonment, then each drug abuser will be punished with a prison sentence. This provision will be a long-term concern that the purpose of punishment of narcotics abuser will not be achieved. It is a common knowledge that even in Penitentiary (which aims to foster the inmates), narcotics trafficking can still occur there and even the inmates can manage the narcotics trafficking/narcotics distribution from inside the Penitentiary. This situation is certainly very worrying for abusers who are sentenced to prison based on Article 127 paragraph (1) of Narcotic Law. It is not impossible, someone who is initially not an addict will become an addict when serving a sentence in the Penitentiary. Thus, the purpose of punishment of abuser is not achieved, instead, it worsens the abuser.
In addition, the Narcotics Law is also unfair to society. As a simple illustration, A has just been arrested for using narcotics for the first time, then he/she as an abuser will be threatened with imprisonment as referred to in Article 127 paragraph (1) Narcotics Law. B has just been arrested for using narcotics for a long time and has been addicted, then he/she is obliged to be rehabilitated. Is that fair? It is fair and the right solution for B to be rehabilitated in order to recover and stop using narcotics. However, it is unfair for A who has just used narcotics to be put in prison.
In the author’s opinion, every narcotics addict starts from an abuser, no one suddenly becomes a narcotics addict. In other words, an addict is actually in a conscious state to use narcotics repeatedly until he/she becomes an addict. If so, is it fair to punish someone who uses (maybe for the first time) narcotics with a prison sentence, while someone who has been dependent gets rehabilitation?
Based on the above arguments, the Narcotics Law should have been refined by paying attention to the principle of justice for the society and also the principle of expediency of the law itself. It is a more appropriate solution for an abuser to get treatment (or other preventive measures) than a prison sentence because an abuser is easier to cure than an addict. The abuser is someone’s early detection before becoming an addict.