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Alternatives to detention must be part of 'new normal', govt official says

Jakarta Post - May 26, 2020

Galih Gumelar, Jakarta – Law enforcement agencies must look at alternatives to detaining criminal suspects and defendants to aid efforts to prevent COVID-19 outbreaks in the country's overcrowded detention facilities, a government official has said.

The country's 524 penitentiaries and detention centers hold a total of 232,795 inmates and detainees, almost double the facilities' total capacity of 131,931, according to Law and Human Rights Ministry data from May 24. The country's 55,089 detainees account for about 24 percent of the total prison population.

The National Development Planning Agency (Bappenas) director for legal affairs, Prahesti Pandanwangi, said all sectors of the country needed to adapt to the "new normal" brought on by COVID-19, with President Joko "Jokowi" Widodo recently calling on the public to make peace with the pandemic.

The government is preparing measures to increase productivity while keeping workers safe.

The prison system, Prahesti said, should be no exception, arguing that the implementation of health protocols in such facilities would be ineffective if the prison and detention population continued to increase.

"Therefore, we ask law enforcement authorities to pursue strategies beyond detention to curb the spread of the virus in detention facilities," Prahesti said during a recent virtual public discussion.

She said authorities should not hesitate to enforce different measures, such as house arrest and city arrest, which were regulated in the Criminal Law Procedures Code (KUHAP).

Under the KUHAP, suspects and defendants can also be released on bail or have their detention suspended with or without a guarantor. The discretion largely lies in the hands of the investigators, prosecutors and judges.

The Law and Human Rights Ministry sent a letter on March 24 to the Supreme Court requesting that judges place suspects under house arrest or city arrest as an alternative to detention, citing the KUHAP.

Such alternative measures, Prahesti said, would support the government's decision to grant early release and parole to thousands of inmates to help prevent the spread of COVID-19 in detention and correctional facilities.

As of mid-May, the government had released more than 39,000 inmates, resulting in a drop in the prison population to around 75 percent above the intended capacity from 106 percent above capacity. According to official records, 125 of the inmates granted early release have been reimprisoned for reoffending.

The Law and Human Rights Ministry's Corrections Directorate General has deemed the policy a success. There is no new data available on COVID-19 cases in prisons, but on May 11, the directorate general had recorded only one confirmed case in a prison in Bojonegoro, East Java.

Reza Fikri Febriansyah from the ministry's Legislation Directorate General said alternatives to detention could help reduce overcrowding in jails and detention facilities, but admitted that law enforcement officers might find the measures difficult to enforce as the KUHAP did not outline clear mechanisms for their implementation.

He said the KUHAP needed to be revised to resolve this issue, especially as it had not been revised in 39 years.

However, Taufik Basari, a member of House Commission III overseeing legal affairs, said lawmakers had no plans to amend the KUHAP as they were occupied with revising the Criminal Code (KUHP), which is listed as one of the House's priority bills this year.

But activist Genoveva Alicia from the Institute for Criminal Justice Reform (ICJR) said that even without an amendment, the KUHAP provided sufficient means for law enforcement agencies to determine which suspects should be eligible to have their detention suspended. She cited provisions that stipulated that a suspect or defendant must be detained if they face charges that carry a maximum penalty of five years' imprisonment and above.

"Law enforcement authorities can simply play by the book before detaining suspects," Genoveva said.

The Attorney General's Office, one of the law enforcement agencies with the authority to detain suspects, has been reluctant to embrace alternatives to detention out of concern for heightened risks, according to Agung Purnomo, the head for preprosecution programs under the assistant attorney general for general crimes.

"If defendants are placed under house arrest, are there any guarantees they will show up to their trials and not run away? Not to mention the likelihood of the victims accusing us of being unfair," Agung said.

"We are aware that we have the authority to implement alternative measures, but even so, we have to do it very carefully."

When COVID-19 first hit Indonesia in March, activists were quick to warn the government that failing to act could expose the prison population to the virus.

Many put the blame for Indonesia's overcrowded prisons on the judicial system, the existing Criminal Code (KUHP) and the punitive attitude of the judiciary, prosecutors and law enforcement officers, particularly when it comes to drug crimes.

But activists have also warned against speeding up deliberations of the KUHP on the pretext of the COVID-19 outbreak, expressing fear it could lead to excessive criminalization, given that the revised bill still included contentious provisions that would penalize activities in the private sphere, such as consensual sex and cohabitation among unmarried people.

Source: https://www.thejakartapost.com/news/2020/05/26/alternatives-to-detention-must-be-part-of-new-normal-govt-official-says.html