Tim Lindsey and Simon Butt.
Australians caught in Indonesia's drug purge face harsh penalties
Indonesia is in the middle of a major anti-drug crack-down that began last year when trafficking cases leapt to 7410 compared with 1833 in 1999. Indonesian police havearrested more than 700 people in recent raids across the country. In Jakarta alone there were about 150 arrests in April, some resulting in shoot-outs. Several foreigners were executed last year for drug offences.
Large banners now adorn many streets in Indonesia warning of the dangers of narcotics. TV advertisements underline the message, which now has a real sense of urgency about it. The National Narcotics Agency reports that from 2002 to 2004 addiction levels increased from 1 per cent to 3.6 per cent in a population of 220 million. HIV is spreading fast, especially in Bali.
Indonesia's narcotics law says drugs "severely damage and cause significant danger to human life, the community, youth, the nation, culture and national security" and the penalties serve as a deterrent. These are strong grounds for harsh punishment of drug offenders and the Denpasar District Court in Bali will likely impose tough penalties on Australians Schapelle Corby and the Bali nine, if they are convicted. Of 29 people on death row in Indonesia in 2004 for drug offences, only six were Indonesians.
So when will Indonesian judges impose death for drug crimes? The answer depends on the details of the offence and its circumstances. The narcotics law imposes a maximum of 10 years' jail and up to 500 million rupiah ($A70,000) for cultivating, tending or having in supply, narcotics in plant form, or owning, storing or possessing other types of narcotics.
However, death, life or a maximum of 20 years and a 1 billion rupiah fine can be imposed for producing, manufacturing, extracting, putting together or providing narcotics. Likewise, importing, exporting, offering for sale, selling, buying, transferring or receiving narcotics, or being an intermediary for a narcotics transaction will attract death, life or a maximum of 20 years and a 1 billion rupiah fine. Penalties of up to 15 years' jail and a 750 million rupiah fine apply for carrying, sending, transporting or transiting narcotics. These fines matter, because defendants who cannot afford to pay them face additional periods of jail.
The Australians caught during the Bali nine hotel raid are reported to be facing 10 years' imprisonment for possessing drugs, but additional penalties for conspiracy and involvement in an illegal organised activity may also apply. If evidence emerges that they intended to or conspired to export or sell the drugs, then death may be sought by the prosecution. If it can be proved that they were involved in an organised activity to carry, send, transport or transit narcotics, then they may also face a death penalty.
These provisions appear to apply regardless of the amount or type of narcotics seized. This means the Australian recently charged for possession of a relatively small amount of hashish could be tried under the same provisions as those found with much larger quantities of heroin.
But the death penalty and life imprisonment are not mandatory penalties. Indonesian judges have the discretion to consider mitigating circumstances and impose a lighter sentence. The amount and type of drugs involved, the age of the defendant and whether the defendants were tricked or forced into trafficking (as some of the Bali nine claim) may be relevant factors.
If the death penalty is imposed, many avenues of appeal remain. Senior judges of the High Court in Bali or of the Supreme Court in Jakarta might take a different view of the evidence and lessen the penalty. And, although the narcotics law requires the courts to prioritise narcotics cases over other types of cases and to resolve them quickly, exhausting all avenues is likely to take more than a decade, as it would in most countries. The last chance for an Australian on death row who has exhausted all appeals would then be an appeal to the president for clemency and the constitution says he must then consult the Supreme Court.
But whatever the judges say, we can be sure the president would have his country's rising tide of narcotics use and his Government's "war on drugs" in his thoughts as well.
Australians caught in Indonesia's drug purge face harsh penalties
Indonesia is in the middle of a major anti-drug crack-down that began last year when trafficking cases leapt to 7410 compared with 1833 in 1999. Indonesian police havearrested more than 700 people in recent raids across the country. In Jakarta alone there were about 150 arrests in April, some resulting in shoot-outs. Several foreigners were executed last year for drug offences.
Large banners now adorn many streets in Indonesia warning of the dangers of narcotics. TV advertisements underline the message, which now has a real sense of urgency about it. The National Narcotics Agency reports that from 2002 to 2004 addiction levels increased from 1 per cent to 3.6 per cent in a population of 220 million. HIV is spreading fast, especially in Bali.
Indonesia's narcotics law says drugs "severely damage and cause significant danger to human life, the community, youth, the nation, culture and national security" and the penalties serve as a deterrent. These are strong grounds for harsh punishment of drug offenders and the Denpasar District Court in Bali will likely impose tough penalties on Australians Schapelle Corby and the Bali nine, if they are convicted. Of 29 people on death row in Indonesia in 2004 for drug offences, only six were Indonesians.
So when will Indonesian judges impose death for drug crimes? The answer depends on the details of the offence and its circumstances. The narcotics law imposes a maximum of 10 years' jail and up to 500 million rupiah ($A70,000) for cultivating, tending or having in supply, narcotics in plant form, or owning, storing or possessing other types of narcotics.
However, death, life or a maximum of 20 years and a 1 billion rupiah fine can be imposed for producing, manufacturing, extracting, putting together or providing narcotics. Likewise, importing, exporting, offering for sale, selling, buying, transferring or receiving narcotics, or being an intermediary for a narcotics transaction will attract death, life or a maximum of 20 years and a 1 billion rupiah fine. Penalties of up to 15 years' jail and a 750 million rupiah fine apply for carrying, sending, transporting or transiting narcotics. These fines matter, because defendants who cannot afford to pay them face additional periods of jail.
The Australians caught during the Bali nine hotel raid are reported to be facing 10 years' imprisonment for possessing drugs, but additional penalties for conspiracy and involvement in an illegal organised activity may also apply. If evidence emerges that they intended to or conspired to export or sell the drugs, then death may be sought by the prosecution. If it can be proved that they were involved in an organised activity to carry, send, transport or transit narcotics, then they may also face a death penalty.
These provisions appear to apply regardless of the amount or type of narcotics seized. This means the Australian recently charged for possession of a relatively small amount of hashish could be tried under the same provisions as those found with much larger quantities of heroin.
But the death penalty and life imprisonment are not mandatory penalties. Indonesian judges have the discretion to consider mitigating circumstances and impose a lighter sentence. The amount and type of drugs involved, the age of the defendant and whether the defendants were tricked or forced into trafficking (as some of the Bali nine claim) may be relevant factors.
If the death penalty is imposed, many avenues of appeal remain. Senior judges of the High Court in Bali or of the Supreme Court in Jakarta might take a different view of the evidence and lessen the penalty. And, although the narcotics law requires the courts to prioritise narcotics cases over other types of cases and to resolve them quickly, exhausting all avenues is likely to take more than a decade, as it would in most countries. The last chance for an Australian on death row who has exhausted all appeals would then be an appeal to the president for clemency and the constitution says he must then consult the Supreme Court.
But whatever the judges say, we can be sure the president would have his country's rising tide of narcotics use and his Government's "war on drugs" in his thoughts as well.
Tim Lindsey is professor of Asian law and director of the Asian Law Centre at the University of Melbourne. Simon Butt is writing a PhD on Indonesia's judicial system.
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