Criminal Policy On The Problems Of Narcotics Abuse

Penal Policy on Narcotics Abuse Problems.

The stages of penal policy to enforce or apply criminal law consist of three stages. The first stage is legislation drafting (legislative policy). Second stage is the application (judicial policy), and the last is execution (executive or administrative policy) (Bahri, 2012).

The drafting stage is the law enforcement stage in abstracto by the legislative body. This stage is also referred to as the stage of legislative policy. A legislative policy is a planning or program of legislator about the measures to be undertaken in facing certain problem. The application stage is the stage of criminal law application by law enforcement from the police officers to the courts authorities. This second stage is also known as the stage of judicial policy. The execution stage is the concrete implementation of criminal law by the executor. This stage is an executive or administrative policy stage.

The imposition of a criminal sanction is seen as a process of accomplishing the policy through three stages. First, the stage of criminal determination by legislator. Second, the sentencing by the court. Third, the execution by authorities. Seen as a unified process, the first stage belongs to the legislative policy. The legislative policy is expected to results guideline for the next steps. Legislative policy is the most decisive stage for the subsequent stages at the time of criminal legislation drafted. It has determined the purpose of the law. In other words, criminal action prohibits particular action assumed to be criminal action.. In addition, there are some policy errors or weaknesses (Bahri, 2012).

• Policy of the Drafting of Criminal Offence in Narcotics Act.

In the Law Number 35 Year 2009 on Narcotics, there are 4 (four) categories of unlawful acts prohibited by law and being charged certain criminal sanctions namely: (Siswanto, 2012).

• The First Category, the actions of owning, storing, possessing, or supplying narcotics and narcotics precursors

• Second Category, acts in the form of producing, importing, exporting, or distributing narcotics and narcotics precursors;

• The third category, acts of offering to sell, sell, buy, accept, facilitate the sale and purchase, exchange or lend narcotics and narcotics precursors;

• The fourth category, the actions of carrying, sending, transporting, or transiting narcotics and narcotics precursors.

For medical purpose and based on medical indication, a doctor may inject narcotic type II or type III in limited amount and by particular preparation. It is in line with the provisions of the legislation. Patient can have, keep, and/or carry narcotic for himself. He must have valid evidence stating that the narcotics being possessed, stored, and/or brought are obtained legally (Siswanto, 2012).

Narcotics addicts and victims of narcotics abuse must undergo medical rehabilitation and social rehabilitation. Parent/guardians of narcotics addicts who are underage are obliged to report public health centers, hospitals, and/or medical rehabilitation institutions appointed by government for curing and/or treating through medical rehabilitation and social rehabilitation.

Adult narcotics addicts shall report themselves or by their families to public health centers, hospitals, and/or medical rehabilitation institutions and social rehabilitation appointed by government for curing treatment through medical rehabilitation and social rehabilitation. This compulsory report is regulated in Government Regulations Number 25 Year 2011 on the Implementation of Compulsory Report for Narcotics addict.

• Policy of the Drafting of the Criminal Sanctions against Narcotics Crime.

To prevent and tackle the crime of narcotics abuse in Indonesia, there is a legal provision which regulates the sanction for narcotics user or dealer. The provision in question is the Law Number 35 Year 2009 on Narcotics. This law is provides specific regulation compared to the Criminal Code. Thus, against narcotic abuse, the law is applied as a special regulation based on lex pecialis derogat lex generalis.

The regulation of criminal sanctions are set forth in article 111 to article 137 of the Law Number 35 Year 2009 on Narcotics. Those articles have sufficient threat of sanction to narcotics abuse case. Therefore, the regulation of criminal sanctions in the Narcotics Act has given a maximum threat to the perpetrators of narcotics abuse.

Non-Penal Policy on Narcotics Cases.

The policy of criminal prevention would be maximized if it does not concern on the application of penal policy only, but also on the maximum use of other facilities which are considered as playing strategic role in dealing with the crime. Criminal prevention policy is essentially an integral part of community protection. Therefore, the main or ultimate purpose of criminal politics is “the protection of the people to achieve their prosperity.”

It is one of the statements in the 34th course reports organized by UNAFEI in Tokyo in 1973, which reads as follows: “It is understood that one of the crime prevention efforts is to apply criminal law along with its penalty sanctions. However, this effort is still often doubted. The application of criminal law in combating crimes has been going on for hundreds of years. Meanwhile, the anti-social controlling, imposing criminal punishment for a guilty person who break the criminal regulation, is a social problem that has an important legal dimension” (Syaiful Bakhri, 2012).

The rational efforts of the society to combat crime include activities of legislators, police officers, prosecutors, judges, and executor of punishment. They are interrelated according to their respective functions in the process of enforcing criminal law in the crime prevention. Criminal law should be maintained as a means of protecting the public by repairing or restoring the criminals, regardless the balance of the interests of individual perpetrators of crime and society. Hence, social policy can be understood as any rational endeavour to achieve the welfare of society (Syaiful Bakhri, 2012).

Thus, criminal politics is essentially an integral part of social politics, the policies or efforts to achieve social welfare. Crime prevention efforts requires a policy approach, in the sense that there is cohesion between criminal politics, the integration between crime prevention efforts by means of "penal” and “non-penal” (Syaiful Bakhri, 2012).

Affirmation of the needs of social and criminal measures shall be integrated with the overall social policy and national development plan. Departing from such an integral conception, crime prevention policy has little meaning if social policy or development policy creates criminogenic and victimogenic factors. In relation to this issue, the sixth UN Congressional Commission's report on “the correlation between the development and the increasing crimes could become such if it was not rationally planned, disregarded cultural and moral values and did not include integrated social defence strategies.” Similarly, in discussing the issue of “New Perspectives and Criminal Justice and Development”, it is also stated: “it was felt that development per se was not responsible for the increase in crime. Crime, with its attendant cocts to society, was seen not only as a hindrance to development, but also, in some cases, as a consequence of the latter, particularly of unplanned or inadequately planned economic growth and social imbalances.” (Syaiful Bakhri, 2012.)

Similar statements are also seen in one of the considerations of the "Milan Plan of Action" of the 7th UN Congress as follows, “The past years have witnessed rapid and far reaching social and economic transformations in many countries. Development is not criminogenic per se, especially where its fruits are equitable distributed among all he peoples, thus contributed among all the peoples, thus contributing to the improvement of overall social condition; however, unbalanced or inadequately planned development contributes contribute s to increases of criminality.” From the statement of the UN congress, it clearly indicates an affirmation that the development is not inherently criminogenic, in particular, when the results are equitably distributed and equitable to all people, and supporting all social conditions. (Syaiful Bakhri, 2012).

However, the development can be criminogenic or can increase crimes if the development is not rationally planned; unequally or unbalance planned; ignoring cultural and moral values; and does not include an integral community protection strategy. In terms of the concept of community protection, through rational debate, it can be concluded that when people base the criminal law on the concept of community protection, the next task is to improve the maximum results at maximum cost for the sake of the society and minimum suffer for the individual. One must rely on the results of scientific research, on the effectiveness of various sanctions (Syaiful Bakhri, 2012).

From the point of criminal politics, the strategic issue that must be addressed is to deal with the problems or social conditions that directly or indirectly can cause or trigger the crime. It means that handling these issues is precisely the key strategic position seen from a criminal standpoint. It is therefore likely that the 6th UN Congress of 1980 takes serious concern to address this issue. In consideration of the resolution of “Crime Trends and Crime Prevention Strategies,” which states: the problem of crime impedes progress for achieving the quality of life for all people; that crime prevention strategies must be based on the elimination of causes and conditions that trigger crime. The main causes of crime in many countries are social inequality, racial and national discrimination, low standards of living, unemployment, and illiteracy among the large population (Syaiful Bakhri, 2012).

Considering such matters, the resolution states, among other things, “to call upon” all members of the United Nations to take action in their power in to eradicate the conditions which degrade human dignity and cause crime, including unemployment, poverty, illiteracy, racial and national discrimination, and various forms of social inequality. The integral policy emphasising on reduction or elimination, the conditions providing opportunities for the occurrence of crime, also attract the 7th UN Congress of 1985. Affirmed in the congress document on "Crime prevention in the context of development" (document A/CONF.121/L.9), the elimination of causes and conditions that constitute crime must be a “fundamental crime prevention strategy.” Such an attitude and strategy also are continued in the 8th congress of 1990 in Havana, Cuba (Syaiful Bakhri, 2012).

The congress documents Number A/CONF.144/L/17 (on “Social aspects of crime prevention and criminal justice in the context of development”), stated that:

“the social aspects of development are important factors in achieving the objectives of crime prevention strategies and shall be given the highest priority. The objectives of development, economic growth and international economic cooperation should aim to guaranteeing human rights for a life free from hunger, poverty, illiteracy, ignorance, disease and fear of war and allowing humanity to live in a healthy environment” (Syaiful Bakhri, 2012).

The 8th Congress identifies conducive factors for wider and more detailed crimes. For example poverty, unemployment, illiteracy, absence/lack of adequate housing, and unsuitable educational and training system. Other examples are the increasing number of people with no prospects due to the process of social integration as well as exacerbating social imbalances and the loosening social and family ties. In addition, there appeared such conditions that make it difficult for people who migrate to cities or other countries; destruction of cultural identity along with racism and discrimination; causing disadvantages/weaknesses in the social field, welfare, and in the field of occupations. The last, in details, cause severe conditions, such as (Syaiful Bakhri, 2012):

• the decrease or retreat (quality) of urban environments that encourage in increasing crime and the reduced of (insufficient) services for neighbourhood facilities;

• difficulties for people in modern societies to integrate properly in their community, within their family, in the place of employment or in their school premises;

• the abuse of alcohol, drugs and others whose users are also expanded due to the factors mentioned above;

• the extends of an organized crime activities, in particular drug trafficking and the storage of stolen goods;

• Impulses (especially by the mass media) on ideas and attitudes that lead to levels of violence, inequality or tolerance;

The question on how far the conducive factors identified by the 8th UN congress in accordance with the situation in Indonesia would still need to be supported by the results of research. This is important in terms of rational criminal politics. In relation to the need for rational research and planning, the “Guiding Principles” concluded in the 7th UN Congress of 1985, among others, states that “Projects and development programs planned and implemented in accordance with local, regional, and national realities should be based on reliable research and foreseeable future developments or trends of crime. Besides, it should also be based on studies of the social effects and consequences of decisions and policy investigations. Feasibility studies should also include social factors, and supplemented by research on possible criminogenic outcomes and alternative strategies to avoid them.” (Syaiful Bakhri, 2012).

Based on the description of how some UN Congress recommend the policy outside the Criminal Code, in order to combat narcotic abuse, it is also necessary to apply non-penal policy tools. The country has taken various efforts through its special body responsible for the eradication of the abuse and illicit traffic of narcotic, namely National Narcotic Agency. Another effort is from independence party, particularly the community, concerning on the dangers of drug abuses and the sustainability of the nations’ generations.

These non-penal measures are undertaken in order to reduce and cope with the impact of narcotics abuse in the community, this is done by both government deliberate policy and community awareness. Policies deliberately carried out by the government in combating the rise of narcotics abuse are:

The establishment of the Law Number 35 the Year 2009 on Narcotics, especially on the placement of addicts as victims and not as perpetrators of crime. It belongs to a non-penal means, which is an attempt to decriminalize the addicts.

The establishment of Government Regulation No. 25 of 2011 on the Implementation of Compulsory Reports for Narcotics Addicts. This means the government deliberately intend to reduce the abuse of narcotics by treating/curing the addicts in order not to abuse the narcotics again. To achieve this goal, the State appoints the Obligatory Recipient Institution (IPWL, Institusi Penerima Wajib Lapor) which is assigned to assist the recovery of narcotic addicts, so as not to re-abuse the narcotics.

In addition to non-penal policies that prevent narcotics abuse in the community, some other efforts are as follows:

• To provide education about healthy lifestyle without drugs to the community either done by National Narcotics Agency, Health Department or by society self-exploring counseling

• Establishment of Task Force (Satuan Tugas, SAT GAS) of anti-Narcotics abuse in various circles including workers, schools, families, to protect them based on their respective environment.

• Provide a conducive environment for the community to express in accordance with their potential so that they can work and develop themselves to achieve the future expectations.