Organized by Amnesty International with the support of the International Drug Policy Consortium, Lembaga Bantuan Hukum Masyarakat, IDUCARE and the Thailand Institute of Justice.

Watch the video recording here.

Gloria Lai, International Drug Policy Consortium: Hi everyone. Welcome to the side event at the UN Commission on Narcotic Drugs. This side event is on ‘Drug-related detention: Efforts to relieve the crisis in Southeast Asia’. I’m Gloria Lai. I’m the Regional Director for Asia for IDPC, and I’m the moderator today. And joining us on the panel today are Aire Kamiyama from IDUCARE in the Philippines, Nixon Randy from, LBH Masyarakat in Indonesia, Ukrit and Yodsawadi from the Thailand Institute of Justice and Daniel Joloy from Amnesty International. I’m just going to give a bit of an overview of the situation in the region before our speakers on the panel take a closer look at the country level at the situation.

Thailand Institute of Justice and Penal Reform International do a great report on global prison trends each year for the past few years. If we look at the recent one, we see some of the headline findings that the global prison population is higher than ever. That’s 11.5 million people, which is a 24% increase since 2000. And what is the reason for this growing prison population? They point out for them, number one, punitive drug policies along with discrimination, extreme sentencing, the aftermath of COVID—during COVID, there was a lull in the processing of cases because of a slowing down of criminal justice procedures in general in many countries. And when the restrictions started easing, there was a bit of a bounce back. So you see that increase after COVID restrictions are winding down. And then there’s underuse of alternatives to incarceration as well. Of this proportion of people in prison, a significant number are in prison for drug offences. And of this, 2.2 million people who are in prison for drug offences, 22% are in there for drug use. So this kind of highlights how there’s a large number of people who are in prison for things that they really shouldn’t be in prison for, drug use in particular. I just wanted to highlight here that the numbers [of incarceration and overcrowding rates in Cambodia, Philippines, Thailand and Indonesia] vary. So these are some of the latest numbers that we found, some from the Global Prison Trends Report and some from the World Prison Brief online. Just wanting to take a look at the proportion of people who are incarcerated for drugs and the degree of overcrowding. So some of the countries that we are looking at is quite alarming with over 300% capacity of people that is taken up in prisons. And in Thailand, 80% of people in prison are for drugs.

The reason for why there is such a high proportion of people in prison for drugs, of course, is the drug policies, the drug laws in these countries in Southeast Asia, and in some other parts of the world. Even consumption itself is criminalised and then quantities of possession. Even an incredibly small quantities in possession can lead to a criminal conviction. But in addition to that, the problems that arise with so-called alternatives to criminalisation or alternatives to incarceration, the fact is that there is an extensive regime of punishment that applies for all drug related activities, particularly use and even use and possession. So we’re just highlighting some of this here. It’s a really old graph that we’ve shown from a long time ago, but unfortunately is still really relevant. For example, mandatory registration—the fact that people who use drugs are required to register as people who use drugs, and if they do not, there are even criminal penalties in terms of imprisonment or fines associated with that. This is particularly the case in Indonesia, for example. But in relation to detention, of course, I would want to highlight the fact that so-called drug rehabilitation programmes, which are often held up as alternatives to criminalisation and incarceration, are in fact another form of incarceration and detention. UNODC and UNAIDS, they’ve gathered data from a number of countries in Southeast Asia showing hundreds of thousands of people who are held in these drug rehab facilities annually. You can find it online. The latest report is released just in the last one or two years. But the data obviously is only until 2018, but they are continuing to gather that data and will report updates.

This event is looking at alternatives to incarceration. So we have this crisis with prisons, with how we treat people who use drugs, people who are caught in possession of drugs. But we have a project and some of the other partners that we work with do this already on their own, where they’re looking at how these alternatives to try to relieve the numbers of people incarcerated and detained, how they’re working. So we want to invite our speakers to share with us about how those alternatives are working in Thailand, Philippines and Indonesia, and particularly during the COVID pandemic, because there are more alternatives that we’re committed to that were announced during that time and looking at who can access them and in reality how easy or how difficult it has been to access.

Aire Kamiyama, IDUCARE, Philippines: Let me start by sharing with you a story of community experience in relation to this topic. She was illegally arrested because no warrant was shown by the police when they barged in to her room and was taken to the police station. While in police detention, her arresting officer asked for sex in return for her freedom. She agreed, wanting to go home to her family. But the release as a promise was not fulfilled. She was still charged, and after the court proceedings, she was transferred to an overcrowded jail facility for women, most of whom have been charged for drugs.

The other story is of KRIS, who had 2 children staying with a family member, who is in her 30’s. She was illegally arrested in her house without a warrant and the arresting officer wasn’t wearing a uniform. The officer beat her up so severely that she had bruises and black eyes and her face was all swollen. Because of that, she was detained in a hidden place in the police station, and her relatives didn’t know where she was detained. It was as if she was missing. She was secretly detained for a week to let the bruises in her face heal. Still in pain from the police beating, KRIS was also sexually abused and raped while in detention. After a week, charges were filed accusing her of drug use and selling. For selling, there is no bail and potentially means life imprisonment if decided by the Judge. After 2 years in prison, she was released through the PLEA BARGAINING scheme, and ordered to complete a community-based rehab program for 2 years. These programs are NOT based on evidence, and demand women like Kris to report to the program officer by writing letters, attending workshops, tree planting, and others. During these 2 years, she and others undergoing the program were also subjected to random drug tests. If there was a positive result or if she missed a reporting session, she would be made to serve the remainder of her sentence in jail. People arrested for drug charges like KRIS are often forced to agree to plea bargaining, that is, to enter a plea of guilt for a lesser drug offence because they want to return home to their families, to their children. But because they are forced to plead guilty, they then have a permanent criminal record that will hinder employment and other life opportunities. Who now is doing the Violent Criminal Act Here?

IDUCARE is working together with STREETLAWPH to give training on paralegal assistance to people held in the women jail facility to help expedite their release from prison. We, together with other civil society and community-based organizations are supporting the health department to push for decriminalization. I’m glad a community organization is given a chance to talk and participate in this platform. And let me end with this—there is a great need for jail and prison policies to prioritize humane and dignified treatment of those who are incarcerated, especially women, and to ensure that the rights of people held in jails and prisons for drug cases are upheld. Protecting the health of individual deprived of liberty is an urgent matter that needs to be addressed. Harm reduction always make a place safer even in prison facilities.

Nixon Randy, LBH Masyarakat, Indonesia: LBHM is a not-for-profit non-governmental organization that provides free legal services for the poor and victims of human rights abuses; undertakes community legal empowerment for marginalized groups; and advocates for law reform and human rights protection through campaigns, strategic litigation, policy advocacy, research and analysis.

Indonesia is one of the countries that still adopts and maintains the punitive war on drugs policy model. Various campaigns are promoted to give meaning to drug offenses as the most serious crimes. The paradigm of the most serious crime built by the government in narcotics cases actually brings problems to the conditions of prisons in Indonesia. Prison overcrowding is a worldwide problem and challenge. In 2018, the World Prison Brief reported that more than 10.74 million people were held in prisons around the world, both as prisoners and convicts. Indonesia is one of the countries that contribute to the highest overcrowding rate. A study noted a consistent increase in the percentage of overcrowding from 25% in 2015 to 103% in 2020. Based on data published through the Correctional Database System as of August 2021, of the total number of special residents of all regional offices of the Ministry of Law and Human Rights of the Republic of Indonesia, there are 116,930 people who deal drugs and 28,483 people who use drugs. The same source also noted that the condition of detention house and prisons in Indonesia has exceeded capacity by 97%. This further confirms that the war on drugs policy has been built from an erroneous and unfounded paradigm.

One of the steps taken to answer this problem is an alternative to imprisonment. In general, the alternative to imprisonment was born to reframe the narrow understanding of the purpose of retributive punishment. Non-imprisonment sentences are a response designed to avoid the use of prisons at some stage in the criminal justice system. But unfortunately, this concept is not necessarily found in the legal framework of the Narcotics Law in Indonesia.

In Narcotics Law, alternatives to imprisonment are manifested in the context of medical and social rehabilitation for people who use drugs. The Narcotics Law in principle provides the right for someone to possess narcotics for the benefit of health services and/or the development of science and technology. In practice, however, this is rarely possible for the people who use drugs, particularly when they face the legal enforcement. In some cases, a person who use drugs may also be identified as a dealer or courier involved in illicit drug trafficking. Based on research conducted by LBHM in 2014, from a total of 522 decisions collected from district courts in Jakarta, Bogor, Depok, Tangerang, and Bekasi, only 28 decisions met the criteria for accessing rehabilitation. From these 28 decisions, there were still 25% of cases that were still sentenced to imprisonment. This proves that the implementation of arrangements related to criteria for access to rehabilitation for the people who use drugs has not run optimally.

The Covid-19 situation does not diminish the glorification of the war on drugs in Indonesia. During the pandemic, the government did not open the tap for people who use drugs sentenced to imprisonment to receive parole or assimilation. During the Covid-19 pandemic, the government through the Directorate General of Corrections, Ministry of Law and Human Rights has released 115,798 prisoners through the assimilation program. However, this provision excludes the people convicted in drug offences sentenced to more than five years’ imprisonment as eligible for assimilation. In fact, in terms of crime typology, the people who use drugs can be included in the release criteria. There are two things that can be used as a basis, first a person who use drugs do not endanger others and second, they may have a history of illness that makes them more vulnerable to transmission of any type of disease in prison.

The exclusion of the right to assimilation and parole not only has a detrimental impact on people who use drugs sentenced to imprisonment but also extends the bad record of correctional overcrowding in Indonesia. This proves that the war on drugs denies emergency and humanitarian efforts that should be made for people who use drugs.

To answer all of these problems, through this opportunity we provide some recommendations as follows:

1. The government to stop punitive drug war policies and prioritize health-based interventions for people who use drugs.
2. The government needs to take strategic and tactical steps to reduce overcrowding in correctional institutions by decriminalizing the people who use drugs and providing the right to assimilation and early release in drug cases.
3. Government to fulfill and ensure access to transparent and affordable alternatives to imprisonment for people who use drugs
4. The government needs to establish an integrative and binding regulation for all law enforcement institutions in an integrated criminal justice system in Indonesia so they are able to fulfill the right to access alternatives to imprisonment for people who use drugs.

Through this opportunity, we also recommend the international commissions and agencies to encourage governments around the world, including the Indonesian government, to evaluate this punitive policy in the war on drugs, to push government to invest and promote alternative to imprisonment, including access to harm reduction services. We believe that this strategic step can create progressive impacts on the fulfilment of human rights for people who use drugs. As an organisation who is working for drug policy reform, we would be delighted and very open to any opportunities, cooperation, and support (including with and from the Indonesian government) in making constructive and progressive changes. Because every human matters.

Ukrit Sornprohm, Thailand Institute of Justice: In this presentation ‘Accessing alternatives to incarceration for people who use drugs in Thailand’, we will provide an overview of the new drug law in Thailand and kay findings from our study on this topic. So from a legal perspective, drug laws are considered ‘mala prohibita’ in criminal law. In other words, it is wrong just because the law says so in order to prohibit some unwanted activities. The criminal justice policy then varies in different jurisdictions. In Thailand, we used to have two strict laws and harsh penalties. It resulted in prison overcrowding over the past decades, majority of them are drug users. Therefore, decriminalisation and public health approach were progressively advised. Finally, in 2021, Thailand became the very first nation in Southeast Asia to update its legal framework on drug control and rehabilitation system with the codification of the narcotic laws.

With a focus on the health care of drug users, the new code allows for pilot test programming on harm reduction, cultivation of some narcotic plants under controlling regulations, for example, cannabis for consumption, commercialisation and medication. However, methamphetamine is the most prevalent type of narcotic drug in Thailand, so I will focus on the legal provisions concerning this one. First, the modifications of the legal terms and definitions in the new law. Now, personal consumption and small amount possession would no longer be under the serious offence category. This means that diversion to a public health system is allowed at the early stage—no charges, no prosecution, no criminal proceedings. And then the new code also decriminalised some types of activity, including small scale possession. The court also removed the presumption of guilt provisions so the drug user will be no longer be presumed distributor or manufacturer by law. Such users will be diverted to the public health system led by voluntary based rehabilitation and harm reduction programmes. On the contrary, the large scale distributor and manufacturers are still regularly punished by law. The third modification is that the new system promotes community supervision and rehabilitation for drug users. This is the first time in Thailand to fully implement a public health led approach where the criminal record system and criminal proceedings are not applied for drug users. The official voluntary based rehabilitation system aims to provide through-care and aftercare service. It is also written in the law that social reintegration centres across Thailand shall support the rehabilitation programme attendees and provide consultation including housing, welfare and vocational training. For the non-serious offenders, there is no minimum penalty in the new law. Therefore, the judge has the discretion to order alternative measures instead of incarceration. They have to consider all relevant factors before sentencing and to divert offenders from the criminal justice system to a public health system. It can be concluded that it increases opportunities and access to alternatives to imprisonment.

Yodsawadi Thipphayamongkoludom, Thailand Institute of Justice: Allow me to share some of the findings of our latest research. So we began this project seeking to build a better understanding of the use of non-custodial measure in Thailand, especially the real experience of their application. So Thailand is a party to the Tokyo Rules and the Bankok Rules, both of which commit Thailand to the use of probation and non-custodial and alternative measures to imprisonment. So since the adoption of the Bangkok Rules, legislative and policy changes have been made in order to facilitate the use of the non-custodial measures across the criminal justice system, such as the option for court sanction and rehabilitation as alternatives to detention and special rules for drug users as opposed to drug traffickers. This was complemented by a widespread roll out of the electronic monitoring equipment for use, both by the court as well as by the Department of Probation, for both pre-trial and sanction use, along with early and conditional release, complementing the existing system of pardon for the custodial sentences.

So while these developments are promising, case study that we conducted as part of this research paint a different picture. Our participants who are ex-prisoners sentenced under the previous legislation but beneficiary of the new legislation mentioned a lack of access to such methods arising from material issue which render their implementation less impactful than anticipated. Charges for drug trafficking remove access to many measures at the pre-trial and sentence status. Strict guidelines set a low quantity threshold and officers are given discretion to automatically charge suspects for trafficking instead of possession, denying access to rehabilitation or to EM assisted probation as alternative sanctions. As for the participants with experience of rehabilitation, the quality of rehabilitation given appears to be fault, and the system of probation and rehabilitation orders in lieu of detention also appears to be fault. The narrow and limited options available to incarcerated persons, namely early release, were also with problems. Communication of the criteria and procedures for early release was lacking, having to complete and file all the relevant paperwork themselves, followed by long processing time.

In closing, while Thailand made positive changes and indeed was an enthusiastic participant in the drafting and adoption of the international standards around the use of non-custodial measures, operational experience, particularly at the receiving end, demonstrated a significant gap between the two. However, there have been some positive benefits, especially for those with access to rehabilitation as an alternative sanction, which signals a change in mindset of treating drug users as a public health rather than a criminal issue. That said, there continue to be gaps, which will need to be addressed in order to fully bring about the change in the practice that was intended in theory.

Closing Remarks: Daniel Joloy, Amnesty International: Thank you, Gloria, for coordinating this important side event and to all panellists for sharing the important work you are doing to solve a crisis that continues to affect so many people in Southeast Asia and around the world. It’s no secret that punitive drug policies based on prohibition and criminalization have significantly increased the number of people in detention, overloading judicial and prison systems and driving a whole range of human rights violations.

To make things worse, fair trial guarantees are often weakened for people accused of drug offences at a time when many countries are expanding the powers to detain people and are passing more draconian charges for drug offences. As shown by the various panellists, conditions of detention are also deteriorating and are usually overcrowded, unhygienic and denigrating. In many cases, conditions of detention violate the absolute prohibition of torture and other ill-treatment.

On the other hand, thousands of individuals across the region continue to be arbitrarily detained in so-called drug “rehabilitation” centres. These facilities operate as punitive and abusive detention centres, utterly lacking in medical services and properly trained staff. Rather than providing evidence-based treatment, people held in these centres are detained against their will and face systematic abuse.

In a sense, people suspected or accused of using or possessing drugs in many countries in the region are caught between these parallel systems of detention and punishment: either you are trapped in the criminal justice system or sent to drug-related detention. What we have seen in many countries is that decisions as to whether an individual is criminally prosecuted or held in a drug detention centre does not follow any clear or systematic pattern. Rather, discrimination, marginalization and poverty usually play an important role in determining the fate of those caught in the web of prohibition.

Yet, as the work done by the panellists and many other civil society organizations show, human rights offer a pathway to alleviate this crisis and improve the protection of human rights. Over the years, UN agencies and human rights mechanisms have listened to these good practices and have provided a raft of recommendations to governments on how they can and should work towards solving many problems associated with the punitive nature of drug policies, including those related to prison and other detention settings.

For example, just last week, the Committee on Economic, Social and Cultural Rights provided a set of recommendations to Cambodia during its periodic review. After expressing concern over the high levels of detention of people who use drugs in prisons and in drug detention centres, the Committee recommended the government to conduct a review of their legal framework, to decriminalize the possession of drugs for personal use and to provide prevention, harm reduction and treatment services in the community, among other things. The Committee has issued over the years many other recommendations to a wide array of countries on how to ensure their drug policies align with their human rights obligations, yet many of these recommendations are rarely implemented.

As another critical example, the UN Working Group on Arbitrary Detention recently issued a set of recommendations in a breakthrough study on drug policies that provide States clear guidance on how to amend their drug policies to better respect human rights, including around the decriminalization of drugs for personal use and the immediate closure of drug-detention centres. Yet, governments are not only failing to implement these recommendations but some have openly challenged the study itself and even denied their validity.

Unfortunately, the gap between State practice and the recommendations by international human rights mechanisms continues to widen. We are now seeing how even mentioning human rights upstairs in the plenary and in other drug control mechanisms has become a contentious issue. But it is thanks to the brave and inspiring work of human rights defenders and civil society organizations in Southeast Asia and around the world that we know that a different way is possible.

We would certainly be better if States and intergovernmental organizations would start paying more attention to good practices like the ones we have heard today in order to truly ensure the rights and dignity of those affected by punitive drug policies.

 

Q&A

1. When you were presenting on and when you were having those very concrete recommendations, in your engagement with the government, how has been their reaction? Are they supportive of these? Are they attacking and threatening civil society who are proposing or even trying to implement these sort of recommendations? How do they take these approaches?

Nixon Randy, LBH Masyarakat, Indonesia: We did several actions to get engagement from the government. In 2020, we submitted an administrative lawsuit against the government of Indonesia regarding the war on drugs policy. But unfortunately at the time, the government was given space to share that they are still proud of the policy and the court sentenced that the evidence wasn’t sufficient enough. But we still tried to engage with them and try to get some information from them. And they were open to receiving all the recommendations from us but I’m not sure if they implement the recommendations as well.

2. Yodsawadi highlighted issues around that even when there are alternatives, people who are in prison don’t know about them. And maybe even if they did, they don’t know how do you go about trying to access it, literally thousands, if not hundreds of thousands of people in certain prisons throughout the country. So I’m very curious that in practice, how does this work? And who are the people who managed to get an early release? Is it only those people who can afford a lawyer? How easy or difficult it is to access state legal assistance? Do you need a lawyer to apply for early release? What if you have problems with reading and writing? You know, literacy is an issue.

Yodsawadi Thipphayamongkoludom, Thailand Institute of Justice: So from my experience interviewing in the field work, we have found that the new measures have been provided for everyone. So prisoners can file for the early release. But then for those who are quite illiterate, they may need their cellmate to help with filling the form and then submit it to the prison officer. That’s what we found. So it’s quite challenging for them to ask for the release.

Aire Kamiyama, IDUCARE, Philippines: We’re assisting the woman who are in jail to process their papers for release. So that’s what we do in IDUCARE and we collaborate with other civil society organisations on that.

3. I’m curious to hear what your thoughts are on what the factors that make your governments more open to alternatives to incarceration. Is it overcrowding and the system, in their own analysis, falling apart and being overburdened? Is it because there is some pressure from a human rights perspective? Is it international pressure? Like what are the factors that you think have pushed them to become more open? And how does that political will come about in those different contexts?

Ukrit Sornprohm, Thailand Institute of Justice: It’s just from my own perspective. I think that once we have the criminal justice system with serious overcrowding crisis like in Thailand. We are aware that the law is in the wrong direction. We used to have a drug war narrative in Thailand for a long time, 10 or 15 years. And then we put people in jail into imprisonment, a very large number of people. And the government put efforts in terms of human resources and financial resources to deal with this problem. But it fails. So we try to explore a new way on how to reduce or mitigate the problem, especially adopting the concept of decriminalisation and we try to produce more research in this area. We have some good practices from European countries, for example, Portugal or the Netherlands, etc. So this is how we came to adopt the concept and changed the mindset of policymakers.

Nixon Randy, LBH Masyarakat, Indonesia: In the context of alternatives to imprisonment in Indonesia, the government still hasn’t considered it enough. But there have been some phenomena that have created some momentum. For example, if you’ve heard about the news regarding the fire in Tangerang prison in 2021, at the time the government acknowledged that an overcrowding prison is an issue. However, with the revision of the narcotics law going on right now in Indonesia, there seems to be no change to the offences.

4. In Thailand, what has been the response of courts and judges to the new provisions in the narcotics code, especially on discretion in sentencing and the application of alternatives?

Ukrit Sornprohm, Thailand Institute of Justice: From the promulgation of the new code, we have a lead time for responsible agencies and committees, for example, the Court of Justice to review all the subordinate regulations that concern the use of their discretion or sentencing guidelines. So that lead time allows the judge and the Court of Justice to change or to adopt the new concept and establish the new rules, especially the sentencing guideline for all the judges in the country to understand the factors that related to the background of people who we use drugs who enter into this vicious cycle. Once they have the sentencing guidelines, the judges can use this as a minimum requirement and standard in order to decide if they are to apply an alternative measure that fits or is suitable for a specific case or not.