Rethinking the Current ASEAN’s 'War on Drugs' Approach

The year 2015 marked an important year for a Drug-Free ASEAN. The Declaration on Drug-Free ASEAN 2015 called on ASEAN Member States (AMS) to ‘realize the vision and goal of a drug-free ASEAN Community by 2015 as a high-priority agenda of ASEAN.[i] The launching of this Declaration reflects AMS’ seriousness in pursuing more effective anti-drugs campaigns and policy.

 

At the end of March this year, for example, the Indonesian government transferred many drug-related convicts to the prison island of Nusakambangan, which is infamous for a place where the Indonesian government carries out executions for death row inmates. Around the same time, President Joko Widodo, who immediately restored the death penalty moratorium after he came into power in 2014, stated his inclination to reapply the death penalty if the Indonesian public supports it. A survey carried out in 2015 found that 85 percent of Indonesians showed great support of death penalty for drug traffickers. More recently, a statement by an Indonesian Attorney General suggested that the administration is likely to pursue the fourth round of execution soon.[ii]

 

President Rodrigo Duterte of the Philippines echoed the same sentiment. Earlier this year, he proposed to the House of Representatives to bring back capital punishment after it was abolished back in 2006. The proposed bill covers nine types of drug crimes, including the import, sale, manufacture, cultivation, or possession of drugs, making it possible for small drug offenses to be easily punishable by death penalty. This move was, unquestionably, a major part of Duterte’s controversial war on drugs, which already took the lives of more than 6,000 alleged drug criminals since he took the office in June 2016.[iii]

 

The Philipines’ campaign against drugs was met by the same enthusiasm from Cambodia. Following President Duterte’s footsteps, Prime Minister Hun Sen launched his government’s war on drugs initiative in December last year. Cambodian government officials stated that the rise of drug addicts to almost 30 percent last year was the major rationale behind the campaign.[iv] This tough on drug attitude resonates well amongst many Cambodians as many express increase concerns about the issue.

 

 

 

The Demand of Punitive Approach

 

There is no denying that drug related crimes pose incredible threats to the society. The Southeast Asia region is home for the world’s second largest market of narcotics, especially opium. The Golden Triangle - an area formed roughly by the upland frontier areas of Thailand, Laos, Myanmar and China - together with Afghanistan serve as the major source of global opium supply.[v] The lack of robust and effective border management, as well as regional maritime security enforcement capabilities contribute in making the region a crucial transit area for the distribution of drugs across the region and beyond.

 

ASEAN as an association has taken some serious measures to address the issue. The notion of a Drug-Free ASEAN can be traced as far back as 1976 when the Foreign Ministers of the then five AMS agreed on the ‘ASEAN Declaration of Principles to Combat the Abuse of Narcotics Drugs’ to address the region’s major concern on ‘…the health and welfare’.[vi] The principles enshrined in the said Declaration were further translated an annual Drug Expert Group Meeting to facilitate the exchange of information on effective legislation and law enforcement policies in the region. AMS also agreed to establish the ASEAN Narcotic Desk to provide information on drug-related issues, and organised joint activities and programs to enhance ASEAN’s ability in dealing with drug trafficking problems.[vii]

 

In responding to drug-related cases as explained previously, AMS have the tendency to respond tough through punitive method in addressing the issue. Accordingly, it is not surprising that capital punishment and extrajudicial killing have become the most preferable approach in combating drug abuse for some ASEAN countries.[viii] They share the same belief that drug offense is the most serious crime[ix] that requires extraordinary measure to deal with. This is further backed by the support of the majority of population in each respective country.

 

For example, Malaysia applied the first capital punishment in 1975 and it became mandatory in 1983.[x] In Singapore, meanwhile, mandatory death sentence for drug trafficking crimes has been considered as an appropriate method to deter drug-related crimes.[xi] Despite the condemnation from the international community, the Singaporean government insists that as one of the safest countries in the world, drug offenders have violated the right of the victims and the rights of community as a whole.[xii] Fortunately,, authorities in Malaysia and Singapore appear to be increasingly inclined to follow global trend in abolishing death penalty for drug offenses.[xiii]

 

 

 

Deterrent effect or deteriorating effect?

 

Many argue that ASEAN War on Drugs was a crucial decision taken in light of an increasing trend in drug-related cases, and which further required ASEAN countries to step up their collaborative efforts to realize a Drug-Free region. The existing punitive approach undertaken by many AMS today has been claimed to have deterrent effect towards drug dealers and traffickers. President Joko Widodo of Indonesia, for example, argued that the death penalty is as an important ‘shock therapy’ for the perpetrators, and that those involved in dealing and trafficking drugs ‘destroy … the future of the nation’.[xiv] Duterte echoed this tough stance by affirming that only a harsh and punitive approach to drug use will bring a deterrent effect and reduce crime rates.[xv]

 

The deterrent theory is basically based on the premise that, not only the object of punishment will not commit the crime for the second time, but it also sets an example for others who are inclined to commit the same crime.[xvi] A study conducted by the Amnesty International, however, argued that there is a lack of evidence that deterrent effect will contribute significantly in decreasing the negative impacts of drug abuse. Drug trafficking rate in many AMS increases despite the introduction of punitive method for the crime. Since 1975, for example, there were 200 people executed in Malaysia. Despite this number, the 2004 report from International Narcotics Control Board (INCB) pointed out that there was an increase of heroin availability due to its rising demand.[xvii]

 

Evidence from Indonesia also shows heightened response towards this issue within a specific period of time. Since President Joko Widodo took office in 2014 and decided to execute 14 drug convicts in 2015 alone, the number of drug cases and drug offenders have not been declining. As of June 2015, data from the Indonesian National Narcotic Board  showed that there were 4.2 million drug users in Indonesia. This number increased to 5.9 million drug users in November 2015. This increase occurs within the same year when the two rounds of executions carried out by the current administration on January and April 2015.[xviii] Moreover, according to the Indonesian Coordinating Ministry of Political, Legal and Security Affairs, there was also an increase of 13.6% of drugs cases every single year. The increasing number of cases in 2015 was the highest since 2010.[xix]

 

It is, therefore, clear that deterrent effect through punitive method does not necessarily yield a Drug-Free region. There are several reasons as to why this punitive approach is likely to cause more harm than good in realising the Drug-Free ASEAN. Domestic considerations, such as limited access to a just and fair trial, is a case in point. In the case of the Philippines, for example, President Duterte’s war on drugs campaign encourages and even orders citizens to take the law into their own hands, and shoot dead drug dealers themselves. Police force is also encouraged to carry out extrajudicial killings. This policy has left thousands of alleged drug criminals shot dead on the streets, two-third of which were murdered by unknown assailants.[xx]

 

Whilst drug convicts in Indonesia still receive trials, The Institute of Criminal Justice Reform’s report show that many of them donot receive a fair one. ICJR disclosed that the Indonesian law enforcement officers allegedly torture or intimidate the convicts and witnesses. 11 cases of capital punishment between 2002 and 2013 also showed the absence of legal assistance to the defendants.

 

Another argument put forth by Amnesty International as to why capital punishment is no longer relevant is related with human rights issues.[xxi] There is little doubt that capital punishment violates the convicts’ right to life, right to be free from cruel, inhumane and degrading treatment or punishment, as well as the right to standard of living and well being.[xxii]

 

Some would argue that the domestic policies adopted by individual AMS are ineffective to eradicate drugs-related crimes. Evidences show that there are, indeed, problems with the current ASEAN’s approach in creating a Drug-Free region. Whilst the original focus of a Drug-Free ASEAN is the ‘health and welfare of humankind’, in practice, there has been an overwhelming focus on punishment, law enforcement and criminal justice.

 

 

 

Exploring Alternative Approach

 

Alarming concerns have been raised by regional and international human rights groups as the death toll in the region continues to rise. The Indonesian Government, for example, has been encouraged by these human rights advocates to pay attention to the United Nation’s request to abolish death penalty from its judicial system.[xxiii] Similar call has also been made by some prominent figure in Indonesia’s politic, such as the former President of Indonesia, B.J. Habibie. Nearing the fourth round of execution that took place on July 2016, President Habibie, known for his firm stance against death penalty, sent a letter to President Joko Widodo, assured him that, It is possible to fight narcotics-related crime without imposing death penalty’’.[xxiv]

 

Given vast amount of evidence showing the failure of capital punishment and punitive method to reduce drug-related offenses, what would be a better way to create a Drug-Free ASEAN?

 

To start with, ASEAN needs to consider a more humanist approach so as to enable the region’s drug policies to address core aspects of social welfare and public health.  Southeast Asia’s punitive approach to drug use stands in stark contrast with softer approach used elsewhere that emphasises the provision of public health system, decriminalization of drug use, effective prevention.The region’, for example, can take alesson from Colombia who has been at the forefront of the global effort against War on Drugs. After having exhausted numerous approach to address chronic drug problem in his country, President Juan Manuel Santos proposed a call from international community to consider more humane solution to tackle the main roots of the problem, rather than focusing on punitive and prohibitionist method.[xxv]

Moreover, what can ASEAN do at the regional level to push the agenda forward, on the one hand, whilst avoid sacrificing lives of many, on the other? Through its own Drug Expert Group Meeting, ASEAN should be able to come up with more effective method to tackle drug problem by taking into account recent development that capital punishment is ineffective and implementing an evidence-based strategy to solve drug-related problems in Southeast Asia. It is understandable when some countries are eager to be seen as a champion in the War on Drugs. However, this should not jeopardise other important principles of human rights and dignity that the global community upholds.

 

[i] ASEAN Secretariat (2012), ASEAN Leaders’ Declaration on Drug-Free ASEAN 2015’, retrieved from <http://www.asean.org/storage/archive/documents/Declaratin%20on%20Drug%20Free%20ASEAN_Endorsed%20by%20Summit_FINAL.pdf >

 

[ii] Margareth S. Aritonang (2017), ‘Govt refuses to implement moratorium on death penalty,’ The Jakarta Post,12th April, retrieved from <http://www.thejakartapost.com/news/2017/04/12/govt-refuses-to-implement-moratorium-on-death-penalty.html>
 
[iii] Tomasito Villarin (2017), ‘Duterte Wants the Death Penalty Back,’ The New York Times, 29th January, retrieved from <https://www.nytimes.com/2017/01/29/opinion/duterte-wants-the-death-penalty-back.html?_r=0>
 
[iv] David Hutt (2017), “In Duterte’s footsteps, Hun Sen launches a drug war,” Asia Times, 9th February, retrieved from <http://www.atimes.com/article/dutertes-footsteps-hun-sen-launches-drug-war/>
 
[v] The Habibie Center, “A New Approach to a Drug-Free ASEAN,” ASEAN Briefs, Vol. 4, Issue 2, November 2016
 
[vi] ASEAN Secreatriat (1976), ASEAN Declaration of Principles to Combat the Abuse of Narcotic Drugs, retrieved from <http://asean.org/?static_post=asean-declaration-of-principles-to-combat-the-abuse-of-narcotics-drugs-manila-26-june-1976>
 
[vii] O'Hara & Salleh, “Recent Development in Legislative and Administrative Measures in Countries of the Association of South-East Asian Nations to Counter the Illicit Traffic in Drugs,” Bulletin of Narcotics 39, 1987, pg 51–56
 
[viii] Leeichaianan & Longmire, “The Use of the Death Penalty for Drug Trafficking in the United States, Singapore, Malaysia, Indonesia and Thailand: A Comparative Legal Analysis,” Laws 2013, 2,Laws 2013, pg 121
 
[ix] Ibid., 130
 
[x] Ibid., 132
 
[xi] Michael Hor, “The Death Penalty in Singapore and International Law,” Singapore Year Book of
International Law and Contributors, 8, 2004, pg 105–117
 
[xii] Leeichaianan & Longmire, op.cit, 128-130
 
[xiii] Ibid., 119
 
[xiv] The Guardian (2014), ‘Bali Nine: Indonesian president rules out clemency for inmates on death row,’ 10th December, retrieved from <https://www.theguardian.com/world/2014/dec/10/bali-nine-indonesian-president-rules-out-clemency>
 
[xv] Independent (2016), ‘Philippines President Rodrigo Duterte says he ‘doesn’t give a s*** about human rights’ as 3,500 killed in war on drugs,’ 17th October, retrieved from <http://www.independent.co.uk/news/world/asia/philippines-president-rodrigo-duterte-doesnt-give-a-s-about-human-rights-war-on-drugs-civilians-a7365156.html>
 
[xvi] Hoyle & Hood, “Deterrence and public opinion,” Moving Away from the Death Penalty: Arguments,Trends and Perspectives, 2014
 
[xvii] Sidney Harring, “Death, Drugs and Development: Malaysia’s Mandatory Death Penalty for Traffickers and the International War on Drugs,” Columbia Journal of Transnational Law, 29, 1991
 
[xviii] See http://icjr.or.id/data/wp-content/uploads/2016/09/Update_Kondisi_Hukuman_Mati_di_Indonesia_2016.pdf
 
[xix] CNN Indonesia (2016), ‘Kapolri: Kasus Narkoba Meningkat 13,6 Persen Tiap Tahun,’ 25th February, retrieved from <http://www.cnnindonesia.com/nasional/20160224201843-12-113306/kapolri-kasus-narkoba-meningkat-136-persen-tiap-tahun/>
 
[xx]  Ted Regencia & Mohsin Ali (2016), ‘Philippines: Death Toll in Duterte’s war on drugs,’ Aljazeera, 15th December, retrieved from <http://www.aljazeera.com/indepth/interactive/2016/08/philippines-death-toll-duterte-war-drugs-160825115400719.html>
 
[xxi] Sita Legac, “The Negative Impacts on the Global War on Drugs: Can International Drug Enforcement be Successful without Infringing on Human Rights?,” Albany Government Law Review, 3, 2010
 
[xxii] Ibid.
 
[xxiii] Margareth S. Aritonang (2017), ‘Indonesia urged to heed UN call to abolish death penalty,’ The Jakarta Post,  10th April, retrieved from <http://www.thejakartapost.com/news/2017/04/10/ri-urged-to-heed-un-call-to-abolish-death-penalty.html>
 
[xxiv] Ina Parlina & Margareth S. Aritonang (2016), ‘Convicts get executions stayed,’ The Jakarta Post, 30th July, retrieved from <http://www.thejakartapost.com/news/2016/07/30/convicts-get-executions-stayed.html>
 
[xxv] Sibylla Brodzinsky (2016), ‘After 30 years on the frontline, Colombia looks beyond the failed war on drugs,’ The Guardian, 18th April, retrieved from <https://www.theguardian.com/world/2016/apr/18/colombia-united-nations-assembly-war-on-drugs>
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