Chapter 6

Penal response and biopolitics in the time of the COVID-19 pandemic: an Indonesian experience

Harison Citrawan and Sabrina Nadilla*

Introduction

The new Coronavirus pandemic has been critical for legal scholars in their understanding of the role of law within two competing discourses of state responses: biomedical and economic. While the former approaches the predicament by focusing on preserving the biological life of a population, the latter justifies the state’s decisions through a cost–benefit calculation (Colombo 2020). However, rather than focusing on the rationality of measures taken during the pandemic, our enquiry into legal discourse extends to the broader social implications of this predicament. Suggesting the repressive nature of power, some of the techniques undertaken by states have demonstrated the idea of ‘populist biopolitics’ (Schubert 2020) and ‘biopolitical nationalism’ (Kloet, Lin and Chow 2020). By taking these dynamics of power into account, the pandemic implicates several changes in the socio-cultural dimension. From a psychological perspective, Abdullah (2020) argues that the pandemic threat caused several types of psychological trauma, including social withdrawal and hysteria, as well as individual and collective violence. The culture of threat during the pandemic potentially also allowed violent and extremist groups to expand their indoctrination and attack plans (Arianti and Taufiqurrohma n 2020).

Given the wide range of social implications deriving from the governance of the pandemic, a further inquiry needs to address how power is being exercised through law in such an emergency. Existing studies, while invaluable in understanding the quality and impact of state policy in a pandemic, nonetheless have been focusing on legal responses exclusively from the disciplinary technology and technology of security points of view. In this context, we would argue that the global experience in dealing with people’s lives during COVID-19 depicts a form of biopolitical practice: that is, a productive power to organize and foster the life of a population. By employing the frame that law is the predominant institution through which the connection between disciplinary power and governmentality is forged (Tadros 1998, 79), this chapter suggests that the idea of legal justice in a time of emergency can be explained through an elaboration of this biopolitical practice. As a mode of exercising power, biopolitics refers to a new modality of producing, circulating and enacting power that subjects and governs individuals (Mendieta 2014, 37). Mechanisms of biopolitics in the Coronavirus emergency are essentially deployed to ‘intervene at the level at which these general phenomena are determined to intervene at the level of their generality’ (Foucault 2003, 246).

Specifically, we suggest that the nexus between law and biopolitics is best reflected in the governmental measures taken in the justice sector, upon which state apparatuses, think tanks and scientists are voicing judgement on how law, regulation and legal institutional arrangements should work (Hasan et al. 2020; Nowotny et al. 2020; Seal 2020). Throughout the pandemic, ample consideration has been directed to the situation in prison and other detention or confinement facilities as part of the penal or criminal justice system, which is considered to be one of the most vulnerable sites for virus infection (Akiyama, Spaulding and Rich 2020; Cingolani et al. 2020; Lofgren et al. 2020). Based on rigorous resources provided by the Prison Policy Initiative (2020) which described prison and jail as ‘notorious incubators and amplifiers of infectious diseases’, measures to mitigate the risks were undertaken by prison administrators, including early release, reducing intakes, improving facilities’ health care systems, and optimizing video-conference platforms as an alternative to prison and jail visits. Despite the vast array of justice sectors affected by the pandemic, an intervention directed towards carceral spaces has been deemed necessary to avoid further catastrophe in the population.

As a country with a high rate of imprisonment, Indonesia took swift measures to prevent outbreaks inside its correctional facilities by shunting people away from carceral spaces – a policy which we loosely term decarceration (Sulhin 2020). In this sense, the decarceration policy is reflected in two forms of emergency response in the penal system – early release of prisoners and home parole1 – and a massive expansion of pecuniary sanctions for infringements of the COVID-19 health protocol. These forms of response illustrate how crime has become a locus of governance during the pandemic. In this respect, we aim to investigate ‘the network of relations among power processes, knowledge practices, and modes of subjectivation’ (Lemke 2011, 119) as reflected in these responses. Through the lens of biopolitics, we attempt to understand these cogent policies as a reflection of the systematic knowledge of life informed by expert epidemiological and virological knowledge.

This chapter contends that these penal responses showcase the reinvention of knowledge that emphasizes dignity and the vulnerability of people within carceral spaces. This knowledge is produced from the perspective of ‘others’, which is distinct from the traditional penal knowledge produced by criminologists, politicians and jurists. Moreover, as a biopolitical practice we suggest that these penal responses towards crime operate within the logic of economic contingency substantiated by biomedical inclination. Thus, instead of assessing the decision to decarcerate during the COVID-19 pandemic as a mere moment of prerogative executive power, this chapter argues that it is ‘a process of ongoing claiming and contestation occurring at the boundary of law’ (Feldman 2010).

By taking Indonesia’s penal responses during the COVID-19 pandemic as a case study, we use biopolitics to draw a nexus between governmentality/discipline and law. First, we scrutinize the process of systematizing knowledge of life in prison and jail through a review of reports and guidelines produced by experts during the pandemic. Second, the chapter examines the movement from fear of the virus to fear of crime through a process of the reconstruction of threat and normality against the backdrop of extensive enforcement of pecuniary sanctions and criminal trials. Third, we explore the banality of using penal or criminal law in times of emergency through an elucidation of the individual ‘inclusion/exclusion’ techniques in decarceration policy. This helps us to better understand the power/knowledge nexus that highlights the structure of inequality of criminals. Before we move to these substantive issues, it is important to initially highlight the biopolitical analysis of law that serves as our main framework for analysis.

Biopolitical analysis of law

Law and power are traditionally formulated as possessions. Law is understood as repressive, exercised by agents of actions and centralized in core structures such as the state and its legal institutions. Michel Foucault contested this approach by conceptualizing power as ‘multiple and decentralised, and as productive of social structures and knowledge’ (Turkel 1990, 170). Building upon this perspective, Tadros (1998) further suggests how modern law works between the concept of discipline and governmentality as it manages the passage of the individual from one system to another. In this section, we will begin by outlining Foucault’s approach to power – from sovereign power to biopower.

In his analysis of power, Foucault refers to sovereignty as a form of power that existed before the birth of the modern state: the power to take life and to let live. To have power is to be ‘on top of the pyramid’: the king at the top issues a decree which is carried out by his ministers in the middle and aimed at his people as the subject of power (Lynch 2011). From this viewpoint, power is therefore formulated as possession, centralized in core structures with a repressive nature. It takes form in rules of law; by forbidding and punishing, it aims to discourage criminal acts and ensure social and political order (Lynch 2011; Lilja and Vinthage n 2014).

The emergence of capitalist society and the development of knowledge of the human body during the seventeenth and eighteenth centuries began the rearticulation of sovereign power (Lemke 2011). This historical transformation has resulted in a new rationality that requires specific techniques and modalities of power. To be precise, it requires a subtle, calculated technology of subjection to make the accumulation of men and capital possible (Mendieta 2014). In this sense, power is no longer seen as a homogeneous commodity or possession (Cisney and Morar 2015). Rather, it is understood as ‘an interactive network of shifting and changing relations among and between individuals, groups, institutions, and structures … it consists of social, political, economic, even personal relationships’ (Turkel 1990, 170; see also D. Taylor 2011, 3). The repressive nature of sovereign power thus has been complemented and partially replaced by the positive logic of biopower, which aims to improve the quality of life of its members through the government of life and the population. One major consequence of this shift is the growing importance of the norm at the expense of the juridical system of law. While law is exercised from above by a single individual or government body, biopower is dispersed throughout society and subsequently internalized by its subjects (C. Taylor 2011; Oksala 2014).

Foucault (1978) distinguished between two poles of this new form of power over life: the anatomo-political and the biopolitical. The anatomo-politics pole operates at the anatomic level of the body; it conceives the human body as a complex machinery which works by ‘constituting and structuring the perceptual grids and physical routines’ (Lemke 2011). By utilizing disciplinary techniques such as examination, observation and supervision, it examines the material and psychological conditions of individuals and generates forms of knowledge in respect of their behaviour. This information allows for an increase in the economic productivity of the body while at the same time weakening its forces to ensure political subjection – docile bodies (Lemke 2011; Peggs and Smart 2018). In other words, this particular power creates a new subject which transforms individuals into a tool for other interests – that is, to increase the productivity and effectiveness of people.

Biopolitics, on the other hand, operates at the level of a population. Its interest is in the productivity of society. This is achieved by steering general behaviour, stimulating particular tendencies and governing how life is reproduced (Lilja and Vinthagen 2014, 118). It aims to ‘establish a sort of homeostasis, not by training individuals but by achieving an overall equilibrium that protects the security of the whole from internal dangers’, and to ‘invest life through and through’ (Foucault 2003, 139). For this purpose, biopolitics applies the technology of security such as administrative policies, strategies and the tactics of law – all with the legitimation obtained from expert knowledge (Oksala 2014). While many of these tactics will be employed through disciplinary institutions such as schools, the military and prisons, the focus will now be on the population rather than the individual being. The information obtained from disciplinary mechanisms is translated into statistics, calculations and surveillance of patterns, and thereby utilized as the instruments to assess how to act, administer and regulate the trend in an optimal way.

From this point of view, it can be understood that the two levels of power with their distinctive technologies differ not only in their objectives, instruments and historical appearance. Disciplines were developed inside institutions, thereby creating the ‘body–organism–discipline–institution’ series, whereas the state organized and centralized the regulation of the population, thereby generating the ‘population–biological processes–regulatory mechanisms–state’ series (Foucault 2003, 250). It is important, nonetheless, to note that the two series do not stand on their own, as they are necessarily intertwined. They exemplify the mechanisms of what Foucault called a normalizing society in which ‘the norm of discipline and the norm of regulation intersect along an orthogonal articulation’ (253). These practices of power were founded on principles of governing inherent in the state itself: the state, like nature, had its own proper form of rationality and it had to be governed accordingly (Oksala 2014). However, it is important to note that the notion of government refers to a broader meaning, which is the ‘considered and calculated ways of thinking and acting that propose to shape, regulate, or manage the conduct of individuals or groups toward specific goals or ends’ (Foucault 1991, 93–4; Inda 2005, 1–2). By governing, we are practising any rational effort to guide or influence others’ behaviour, which is not only exercised by the government per se, but also by actors, institutions and agencies concerned with exercising authority over the conduct of human beings.

From the growth of productive labour to the welfare of the population, the diverse practices of government certainly have a plurality of aims. To achieve them requires various strategies, tactics and authorities to ‘mould conduct individually and collectively in order to safeguard the welfare of each and of all’ (Inda 2005, 6; see also Oksala 2014). These technologies utilize the law and discipline while simultaneously introducing their own rationality due to their distinctive focus on the population. In this regard, law does not hold much significance, as it is used only tactically so that the ends may be achieved (Foucault 1991). As part of the continuum, the notion of government also incorporates the forms of self-regulation, also known as the technologies of the self. Essentially, it renders individual (and collective) subjects responsible for social risks such as illnesses and unemployment, and transforms these into a problem of self-care (Lemke 2002). One example is neoliberal rationality, the key feature of which is the achievement of a responsible and moral – and an economic-rational – individual.

From this point, it is understood that biopolitical analysis conceives law as a neutral chain of transmission, an interface through which governmental decisions can take effect by adjusting the operations and arrangements of the disciplinary mechanisms (Tadros 1998; Martire 2012). This notion was later extended to a broader sense, as Martire (2012) argued, wherein law provides the structuring rules framing the general landscape and environment of social life. The normative language of law becomes the master language of normalization as it coordinates and regulates the fields of normality within society through its own norms (the ethical, the scientific, the criminal, the medical, etc.). Following Martire’s thesis, this chapter recognizes a mutually reinforcing relationship between the law, discipline and governmentality which constitutes a normalizing complex. On the one hand, discipline – guided by governmentality – creates new subjects at a substantial level: a seemingly homogeneous social body upon which law can inscribe the universalism of the modern legal subject. Simply put, this relationship defines what kind of subject is seen as normal. On the other hand, law has the authority to provide legitimation for the practices commenced by biopolitical apparatuses. It activates and enables these practices and strategies to recodify the individual in the universal terms of the legal subject (Martire 2012).

Governing the crowd

Managing the rabble from the inside

Since 2020 we have relied heavily on the knowledge produced by epidemiologists, virologists and medical practitioners in carrying out our daily routines. This has resulted in a systemic shift within a vast array of institutional practices – from the prohibition of en masse religious activities to online trial proceedings – something unimaginable had the pandemic not taken place. However, COVID-19 has also highlighted the structures of inequality, hierarchies of value and asymmetries that are produced by biopolitical practice. As Lemke (2011) argues, recent studies of biopolitical processes have focused on the importance of knowledge production and forms of subjectivation.

One particular population which is marginalized in this sense consists of those involved in the criminal justice system: the prisoners, the warden, the police, not to mention their families and communities. Disparities in social determinants of health affecting groups that are disproportionately likely to be incarcerated, such as racial minorities, persons who are precariously housed and persons with substance-use disorders or mental illness, also lead to greater concentrations of illnesses in incarcerated populations (Akiyama, Spaulding and Rich 2020). In addition, the congregate setting of prison makes physical distancing almost impossible, and understaffed prison management will face the challenge of identifying necessary resources for effective quarantining (Nowotny et al. 2020). Considering the ‘heightened vulnerability’ of people in imprisonment during the pandemic, a joint statement by UNODC, WHO, UNAIDS and OHCHR (2020) urged states to ‘take all appropriate public health measures in respect of this vulnerable population’. Recommended measures also include reducing overcrowding, ensuring access to continued health services, respect for human rights and the taking of necessary steps to adhere to relevant UN rules and guidance. The WHO (2020) also published further guidance as well as checklists to prevent and control COVID-19 in prisons and other places of detention.

Acknowledging the vulnerable nature of the prison population, experts have called for a systematic response to the situation. Akiyama, Spaulding and Rich (2020) outlined three levels of preparedness that need to be addressed: first, measures to delay the virus from entering the correctional facilities; second, the control mechanism if the virus is already in circulation within the setting; and third, preparation for the handling of an outbreak of the disease. The measures taken by different countries vary. They can apply both inside the prison setting, as seen in limitations on movement inside prison, suspension or limitation of visitation, leave or other permits, and adoption of video-conferencing tools, as well as outside the prison, as in reduction of custodial sentences, suspension of serving prisoners’ sentences, extension of parole systems and pardons (Alexander, Allo and Klukoff 2020; Iglesias-Osores 2020).

At the outset of the pandemic, like most states globally, the Indonesian legal institutions responded in a rather dubious, uncoordinated manner. Each institution declared its own self-regulation, based on its own mandates, at the expense of other institutions’ work. While the government has been generous in providing health protocols and guidance for the public, mainly through the official website (www.covid19.go.id), none of the documents include a protocol for criminal justice enforcement, in particular as it relates to those persons in carceral spaces.

Informed by the urgent need to create social distancing within prison environments, in early March 2020 a district office of the Ministry of Law and Human Rights (MoLaHR), the government ministry that oversees the Directorate General of Corrections (DGoC), sent a circular letter ordering jail and prison administrators to halt the intake of inmates. The Indonesian police, which also administers temporary custody, responded through a Police Chiefs Resolution on 19 March that chiefly addressed the community caretaking issues rather than the performance of criminal justice – for example, protection of inmates while in police custody. This resolution was eventually revoked in June following the government’s decision to lift the lockdown. On 23 March the Supreme Court issued a circular letter stipulating guidance for the Court’s work practices and the acceleration of trials for defendants in jails. Subsequently on 27 March the Prosecutor’s Office issued a letter urging some institutional steps including the use of virtual trial proceedings in court, the suspension of detention and the optimization of alternative forms of punishment.

While a timely response is unquestionably paramount in such a situation, this series of institutional responses rather manifests the lack of cohesiveness among the criminal justice institutions. Referring to the international guidelines and the practices of several countries, the MoLaHR alone decided to decarcerate prisoners through early release and home parole in early April. Given the high rate of overcrowding in the country’s prisons, it was seen as a feasible effort to avoid a major catastrophe. This penal response in the form of a policy of decarceration has been highly contentious for the public. As an attempt to ease the tension, the early release and home parole policy excluded several categories of criminal, including those convicted of drug-related crimes, corruption, terrorism, crimes against national security, gross violation of human rights and transnational organized crimes. During a working hearing between the Parliament and the government regarding early release and home parole, the House of Representatives (Dewan Perwakilan Rakyat) on the one side insisted that this policy was discriminatory due to its exclusionary clauses and that it lacked focus on risk mitigation among vulnerable prisoners, such as the elderly and juveniles. On the other side, the government contended that the exclusion of certain offences found its basis in the highly disputed Presidential Regulation of 2012, which classifies certain criminals as subject to restrictions in relation to prisoners’ privileges, such as remission, conditional leave, parole and family visits. However, this classification policy should be read in the context of the populist tendency during the post-authoritarian regime, as discussed below.

As one might expect, the parliamentary working hearing led to a public discourse filled with allegations that the government was collaborating with politicians in the parliament to release criminals convicted of corruption and drug-related offences. To ease the tension, the president made a public clarification that clearly denied these claims. In several doorstep interviews, the Minister of Law and Human Rights, while lamenting the state of health of those convicted of corruption, reaffirmed the decision to exclude several types of criminal from the emergency penal measures.

Figure 6.1: Prison population and home visits. Source: DGoC 2020

During the initial phase of implementation of the early release and home parole policy, the DGoC granted early release and parole to more than 35,000 inmates nationwide in April 2020 (Fig. 6.1). As a consequence, the role of parole and probation officers in conducting home visits intensified during the crisis. However, compared to the data from 2019, the number of home visits during the pandemic was mostly unchanged. The data also show that the policy failed to significantly alleviate overcrowding in prisons and jails as the overpopulation rate was still relatively high (roughly 70 per cent of the overall capacity). Despite the efforts to minimize the social risk through a thorough prisoner risk assessment, the public remained concerned about reoffending by released prisoners. In contrast to the ongoing viral pandemic, the 35,000 released inmates thus were perceived as an imminent threat to the public safety of Indonesians. While there were cases of reoffending in respect of petty crimes such as theft and robbery, the numbers were fairly low – fifty reported cases by April 2020 – compared to the total number of released inmates. The dominant narratives in the local media, nonetheless, played a significant role in shaping the public reaction, which focused on alleged failures in selective early release and home parole. Figure 6.2 shows the claimed surge in crimes covered by the media during eight months of the pandemic, which was dominated by murder, theft and drug-related crimes.2

Figure 6.2: Crimes reported in the media, March to November 2020.
Source: Balitbanghkumham, 2020

Even though the recidivism rate in Indonesia is relatively low, we are inclined to see this policy as a measure to recycle the prison population. In this sense, the government was merely creating spaces while waiting for new prison occupants. Rather than solely focusing on creating distances inside carceral facilities, the early release and home parole policy is arguably an anticipative decision made by the government in the face of the rising crime rate caused by the economic recession (Olivia, Gibson and Nasrudin 2020). As if to confirm the ongoing concern, the Minister, during the parliamentary hearing, argued that there would be ‘challenges that might occur due to the large additional number of people [ex-prisoners] in the population’. While in normal times incarceration has substantially damaged the chances of employment upon release (Drakulich et al. 2012), the limited labour opportunities during the pandemic have brought additional challenges for the community at large. Such a substantial burden on released prisoners and their families may eventually lead to reoffending.

Managing the rabble from the outside

The unpredictable nature of the COVID-19 pandemic and the damage it caused hindered the Indonesian authorities’ efforts to devise and implement a mitigation plan promptly. As a consequence, within the time span of one month (March–April) 4,557 cases of COVID-19 were diagnosed, and 399 deaths were reported in Indonesia (Abdullah 2020). The rapid escalation of cases forced the authorities to declare an emergency situation nationwide, along with a policy of large-scale social restrictions (Pembatasan Sosial Berskala Besar, PSBB).3 The day-to-day use of militaristic language that likens these political measures to a war against the Coronavirus heightened the sense of urgency and disaster among the public (Zinn 2020). The measures, however, did not amount to a full-scale restriction on movement or a policy of lockdown, as they limited activities only within non-essential workplaces, private vehicles and public transportation. The government strictly prohibited any activities in public spaces, such as schools and campuses, religious facilities, community centres, shopping malls and tourist destinations. In practice, the PSBB policy was also supplemented by a strict health protocol that made face masks mandatory, especially in public places.

From this point, attention shifted from the threat of the released inmates to the national state of emergency and the severity of the pandemic. As previously mentioned, the continued coverage of the COVID-19 pandemic in Indonesia’s 567 conventional media and 2,011 online media outlets has created a frightening spectre. The proliferation of this knowledge has been internalized within society, and manifested itself through the reconstruction of threat. The notion of threat has been transformed into a broader sense: the fear of illness, the fear of being the carrier of the virus and the fear of being unable to survive the ongoing outbreak.

This study contends that the recycling logic behind the early release and home parole policy has been intertwined with the governance of the population outside the spaces of imprisonment. We thus suggest that the biopolitical practice of PSBB represents a modern governmentality: it works closely with a mode of subjectivation amongst the population through another form of penal response, namely the enforcement of pecuniary sanctions for any COVID-related offences. Given the emergency nature of the pandemic, it was deemed necessary to enhance the technique of discipline in the country. By issuing the 6/2020 Presidential Instruction, the president authorized the police, the military and local governments to optimize community caretaking in order to ‘enhance discipline and the legal enforcement of the health protocol’. The Presidential Instruction urged local authorities to collaborate with local figures, tribal (adat) leaders and clerics, as well as with the police and the military, for the enforcement of the health protocols. Headmen (Lurah), as the lowest administrative government officials, are the embodiment of modern pastoral power: they are responsible for ensuring their community members adhere to the guidelines, and take disciplinary measures should there be violations of health protocols within their community. Furthermore, the local authorities also introduced pecuniary and social sanctions for violations of health protocols during the PSBB period. Any recurring violations of face mask mandates, for instance, faced progressive fines ranging from Rp 250,000 ($6.70) to Rp 1 million ($66.70), or from 60 to 240 minutes of community service.4 The introduction of these sanctions appears to align with the concerns regarding prison overcrowding. By imposing fines and community service, the policy thereby espoused the penal response of the MoLaHR, police, Prosecutor’s Office and Court.

The economic form of PSBB sanctions is related to what Foucault (2008, 249) saw as ‘the least costly and most effective form for obtaining punishment and the elimination of conducts deemed harmful to society’. Clearly, from an economic perspective incarcerating the high number of violators of face mask regulations would be unnecessarily expensive, and would also create the potential risk of a viral outbreak within the correctional facilities.5 The tactic of power used in the case of PSBB sanctions emerged in a formula relied upon by Beccaria and Bentham, where crime is defined as a breach of the law, fixed penalties are made available for such breaches, and these are graduated according to the seriousness of the crime (Malley 2013). Instead of a deviant, irrational, not entirely human person, the violator is conceived as a rational entrepreneur seeking to maximize profits while keeping costs down. In other words, the person who can be punished by law – homo penalis – is rendered into homo oeconomicus (Foucault 2008).

With its ‘messy and tension-ridden projects’, the biopolitical practice as evidenced in penal responses also provides an intimate interplay between power and resistance (Hannah, Hutta and Schemann 2020, 25–6).6 However, the cultivation of anxiety and fear did not stop thousands of Rizieq Shihab’s jemaah (congregation) from welcoming him on 10 November 2020.7 As a controversial firebrand cleric and the leader of the Islamic Defender Front (Front Pembela Islam, FPI), Rizieq Shihab and his followers have been gaining supporters in reclaiming Islamic puritanism around the country, while at the same time they have long been controversial in provoking and promoting vigilantism. Five days after his homecoming, the wedding of Rizieq’s daughter along with the celebration of the Prophet Muhammad’s birthday drew another throng of people around the cleric’s residence and the FPI’s headquarters in Petamburan, Jakarta. After these crowd incidents, he was fined Rp 50 million ($3,536) by the local authority. However, the case did not stop there, as the police proceeded to launch a criminal investigation alleging the cleric and some of his relatives had violated criminal law: that is, public incitement for the former and health quarantine infringement for the latter.

We are inclined to see this case as a form of refusal to be governed by the state’s authority (Foucault 1982). The chain of events leading to the cleric’s trial arguably displayed the act of ‘resistance by the means of law’ (Merry 1995, 16). On the FPI’s YouTube channel, Rizieq Shihab responded to the allegations against him by explaining that ‘[i]t’s okay, this is what my [supporters’] enthusiasm looks like. I hope we will be delivered from any diseases and that Allah will soon eradicate the coronavirus pandemic ... Don’t forget, everyone has to follow the command of clerics and ulemas’ (Fachriansyah 2020). Such a stance is arguably a product of a long-sustained relationship between the ulema and his congregation that iteratively showcases a resistance against the government (Assyaukanie 2007; Woodward et al. 2014). Resistance, as Sarat (1990, 364) suggests, exists ‘side by side with power and domination’. Thus, by agreeing to pay the health protocol infringement fine to which he was subjugated, Rizieq simultaneously resisted the legal order. He used the legal ideas to interpret the biopolitical practices inflicted upon him and to uncover its uneven impact, which to some extent disrupts the power relation with the state. Such public spectacle may not have a direct consequence for the case itself. However, it may reshape the public consciousness and redefine the law and punishment. The differing perspectives of local and national law enforcement agents prior to the cleric’s alleged crimes further highlights the fragmented criminal justice system in Indonesia. By the end of 2020 the government had acted further to ban the FPI as a registered mass organization, making all related activities on behalf of the organization illegal on the basis of security concerns.

People fear what they do not understand, yet there is much that we have yet to know regarding the current situation. The rhetoric of fear and emergency easily produces distrust of others. In this respect, how society responds to the pandemic is just as concerning as the severity of the virus itself (Colombo 2020; Perkasa 2020). The reconstruction of threat has led to multiple implications. First, it aggravates the sense of vulnerability. The media plays a key role in triggering the fear of crime within society (Hale 1996). Amid the call to maintain safe proximity, the addition of 30,000 people to the general population after release from correctional institutions triggered a struggle for (safe) space among the citizens. Second, the restrictions during PSBB have resulted in the economic risks of unemployment and poverty. The panic–fear–danger nexus became inevitable, since social assistance aid (bantuan sosial) from the government did not provide a sufficient sense of economic security (Roziqin, Mas’udi and Sihidi 2021). Relying heavily on the informal economy, citizens from the lower social class faced a choice between incurring penalties for violating health protocols or risking the loss of their basic income (Ansori 2020).

Biopolitical justice: penal responses and the power/knowledge of necessity

The final important aspect in the analysis of contemporary biopolitics is the power/knowledge nexus of biopolitical practice during the COVID-19 pandemic. Since its outbreak, the authorities have announced the severity of this novel disease in the form of daily transmission numbers illustrated by epidemiological curves. From this perspective, we can see how COVID-19 reveals power relations, such as the decision to escalate or decrease movement restrictions based on ‘the curves’. Hence, at this level of analysis we attempt to understand how institutional practices – through excluding or including people in Indonesia’s penal policies and through managing the crowds inside and outside carceral spaces – shape society’s knowledge of punishment during the pandemic.

This line of enquiry into biopolitical practice in the emergency period leads us to better understand the power/knowledge that highlights the structure of inequality of criminals. In this sense, following Garland’s argument in ‘Punishment and welfare revisited’ (2018), penal forms are produced by conjectural politics and by specific struggles within the sphere of penality itself. He further argues that ‘penal and social practices are constructed by the actors and agencies most closely involved’ (13). In this context, a brief overview of penal responses during several incidents of conjectural politics of emergency in modern Indonesia provides evidence of the way in which the discourse of emergency becomes prosaic as well as the banality of using the penal system in times of public emergency. Three historical periods in Indonesia’s penal system – the post-colonial era, the new order era and the post-authoritarian era – reveal distinctive rationalities that underlie biopolitical practices. This historical timeline through several periods of emergency reflects the technique of the penal system in responding to the situation, which in turn shapes institutional knowledge within the criminal justice system.

Historically, after its independence in 1945, Indonesia’s penal system was still using the modern imprisonment regime invoked by the colonial authority – the Gestichtenreglement (Prison Regulation 1917). Along with the rise of nationalism in the country, the impact of the propaganda of emergency to fight against neocolonialism and neoliberalism was to divert the penal paradigm from imprisonment to correction. The momentous Lembang Conference of Prison Administration in 1964 marked this historical shift by integrating the ideology of Pengayoman (aegis) with the new Pemasyarakatan, which is commonly translated as ‘corrections’. It is mainly based on gotong-royong (social solidarity), which during the postcolonial revolution was characterized as the national identity. Amid ideological contestation in the 1960s, late President Soekarno declared that convicts and criminals should be part of the Indonesian Socialism effort, an attempt to escape from the individualization of guilt as understood in liberal countries. While it has been argued that such an ideology is a clear reflection of the postcolonial legacy within the Indonesian legal structure (Iskandar 2016), the rhetoric used was also a clear sign of penal response in the time of emergency.

As turmoil occurred during 1965/6, the prison revolution appeared to come to a halt. During the new order era, under the military-backed authoritarian regime led by President Soeharto, prison and imprisonment became highly politicized through the securitization framework as a way to protect the state ideology Pancasila from evil communism. Mass incarceration was used during the war against communism, while prison institutions became a site where the state’s violence, such as torture and ill-treatment, was likely to occur, especially against political prisoners. As the demand for human rights protection intensified during the early 1990s, the country finally enacted legislation on corrections in 1995. Heavily relying on the 1964 Lembang Conference recommendations, the 1995 Corrections Law was enacted to reinforce Pancasila as the state ideology through the penal system. It reaffirmed that prisoners should not be seen as merely objects of punishment but also as subjects upon whom the corrections system should strategize social factors beyond the individual. The period also showcases the introduction of penal welfarism in Indonesia, as the government decided to view punishment and imprisonment as part of a larger social policy arrangement. This is manifested in the government’s decision to create the Directorate of Social Rehabilitation and Child Welfare (Direktorat Bimbingan Kemasyarakatan dan Pengentasan Anak, BISPA) in 1970 as a continuation of the colonial Probation and Enforced Education Office (Jawatan Reclasering dan Pendidikan Paksa). The transformation of BISPA into the Directorate of Exterior Corrections (Direktorat Pembinaan Luar Lembaga Pemasyarakatan) and then into the present Correctional House (Balai Pemasyarakatan) in 1997 affirmed the idea of criminal treatment that was distinct from the former carceral prisons.

The 1998 reforms overthrew the previous thirty-two years of President Soeharto’s rule in the country. Despite the successful transformation of legal and penal institutions, as well as the integration of various human rights principles into the judicial and penal system (Suh 2012), the era also marked a significant shift of attitudes towards punishment. As laws became more and more specialized, the course of this change was followed by the penal system, which established more spaces for specialized confinement. Neoliberal development strategies which were transplanted during the transition, and which were sustained until the present democracy (Warburton 2016), transformed Indonesia into a penal state. Criminal law and punishment are thus understood as a response to any kind of disapproved public behaviour, and this is seen as the best way to exercise democracy and liberalism.

As Simon (2013, 79) argues, ‘[i]f actuarialism is about spreading risk, precautionary technologies aim to contain it to specific locations. The prison has become a place to contain subjects who pose a risk of crime.’ This kind of actuarial strategy has become commodified by the populist strategies of the two most recent presidencies. During the Yudhoyono administration from 2004 to 2014, the state’s penal policy was framed by the idea of being tough on specific crimes, such as drug-related crimes, corruption and terrorism. This attitude has been largely followed by Joko Widodo’s administration since 2014. The current government’s mid-term development plan (i.e. a five-year governmental plan) also specifies the urgent need for the government to address these specific crimes. Along with the neoliberalism stream determining the national political economy, the technology of punishment promotes super-maximum security prison facilities aimed at confining mainly drug kingpins and terrorists.

During the twenty years since the 1998 political reform, the corrections management regime applies security-sensitive policies based on the crimes committed. In the aftermath of the transition, the Narcotics Prison was established for the incarceration of all drug-related criminals, including drug abusers and dealers, from mules to kingpins. In addition, after the deadly terrorist attack in Bali in 2001, the corrections management regime promoted high-security facilities for the perpetrators. The historical Nusakambangan Prisons Island, which has long been renowned as a site for dangerous criminal classes, is now occupied mostly by terrorists, drug dealers and other high-profile criminals. The recent construction of the super maximum-security Karanganyar Prison on the island can be seen as a reflection of the use of precautionary technology in the country. Facilitated by high-end technologies, the government attempts to strictly confine and restrict high-risk prisoners based on a technical correctional assessment.

The current administration of Indonesia is populist in its own particular way, which fuels the idea of waste management in the penal system. We understand populism in terms of Müller’s (2016, 19–20) definition, as ‘a particular moralistic imagination of politics, a way of perceiving the political world that sets a morally pure and fully unified ... people against elites who are deemed corrupt or in some other way morally inferior’. In addition to being anti-elitist, populists are always anti-pluralists: populists claim that they, and only they, represent the people. The populist core claim also implies that whoever does not fervently support populist parties might not properly be part of ‘the people’ to begin with. Recent Indonesian studies have elaborated the lingering factors that impacted the government’s emergency measures. The lack of preparedness and deficiencies in responding ensured that the pandemic was a frightening spectre. Wiratraman argued that by using civil emergency laws, the state violates the human rights and legal protections otherwise guaranteed by the rule of law. The COVID-19 policy ‘showcases a repressive character in attempting to discipline civil society criticism’ (Wiratraman 2020, 328). Mietzner (2020, 3), on the other hand, argues that it was ‘the very specific form of Indonesia’s democratic decline in recent years that predetermined the government’s poor response to the COVID-19 crisis’. He elaborates five toxic combinations that influence the ineffectiveness of responses while at the same time reflecting the interests of the ruling class. These are: rising populism, increasing religious conservatism, escalating politico-ideological polarization, worsening political corruption and clientelism and the growing confidence of anti-democratic elite actors.

Evidently, the legal rhetoric of necessity in the conjectural politics of penal responses is seen as prosaic politics of emergency. In the context of the Coronavirus pandemic, instead of seeing the emergency of COVID-19 as a single conjectural moment, we tend to see it as an ongoing temporal process of managing a population (Feldman 2010). As a biopolitical technology of power, these penal responses are aimed at the problematic of the population given the power–knowledge structure. During the Coronavirus pandemic, the emergency of drug abuse, terrorism and corruption is necessarily excluded from the penal system through the decarceration policy. It is just a process of ongoing claiming and contestation of the selectivity of punishment insofar as it exhibits indications of penal populism. Reflected by the decarceration decision during the pandemic, the institutional knowledge of punishment for certain crimes prevails over the need to create space inside prison and jail facilities, which is systematized by massive epidemiological knowledge. The (public health) risk analysis also necessitates that the state put some forms of resistance on trial. Finally, to foster the life of the population, it is deemed necessary to let these specific criminals die in carceral spaces.

Conclusion

The idea of legal justice in a time of emergency can be understood through an elaboration of penal responses as a biopolitical practice. As a mode of exercising power, Indonesia’s penal response designates a new modality of producing, circulating and enacting power that subjects and governs individuals. Undeniably, the populist response to Indonesia’s biopolitical practice during the COVID-19 pandemic will affect the efforts in fostering a democratic penal system. It will be particularly compelling to see the future of the penal system in Indonesia, and of course worldwide, after the pandemic. Indonesia’s experience showcases that over a period of time, the country has been in constant motion from one state of emergency to another. Incarceration, as a symbol of modernity in punishment, has long been the answer to overcoming any such emergency. The current necessity to decarcerate, however, might have potential to lead the country towards penal moderation. This stance is imbued with the creation of a new subject – homo oeconomicus – produced by ubiquitous pecuniary sanctions. While we are yet to know what kind of subject is going to be codified by the norm of law in the future, we firmly believe that this trajectory is contingent upon the political and economic climate after the pandemic.

Notes

1. Keputusan Menteri Hukum dan HAM M.HH-19.PK/01.04.04 tentang Pengeluaran dan Pembebasan Narapidana dan Anak Melalui Asimilasi dan Integrasi dalam Rangka Pencegahan dan Penanggulangan Penyebaran COVID-19 [Minister of Law and Human Rights Decree Number M.HH-19.PK/01.04.04 on the Release of Prisoners and Juveniles through Assimilation and Integration to Prevent and Anticipate the Transmission of COVID-19].

2. Indonesia’s first two reported COVID-19 cases were on 2 March 2020 (Gorbiano 2020); the first COVID-related death was reported on 11 March 2020 (Asmara 2020).

3. Peraturan Pemerintah Nomor 21 Tahun 2020 tentang Pembatasan Sosial Berskala Besar dalam Rangka Percepatan Penanganan Corona Virus Disease 2019 (COVID-19) [Government Regulation Number 21 of 2020 on Large Scale Social Restriction in order to Accelerate the Handling of Coronavirus Disease 2019 (COVID-19)].

4. Peraturan Gubernur DKI Jakarta Nomor 79 Tahun 2020 tentang Penerapan Disiplin dan Penegakan Hukum Protokol Kesehatan Sebagai Upaya Pencegahan dan Pengendalian Corona Virus Disease 2019 [DKI Jakarta Governor Regulation Number 79 of 2020 on the Implementation of Discipline and Law Enforcement as efforts to Prevent and Control Coronavirus Disease 2019].

5. In Phase I of PSBB Jakarta and Surabaya Raya, 21,285 and 15,920 people were reported to have violated face mask regulations.

6. We are indebted to Prof. Carl Stychin for raising this issue during the Law and Humanities Series Workshop.

7. The public believed Rizieq Shihab’s departure to Saudi Arabia in 2017 was an attempt to escape the official investigation related to his several criminal allegations, including alleged insults to the state ideology of Pancasila.

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