Constitutional Court Justices in a hearing to read Decision No. 31/PUU-XV/2017 on Tuesday (10/10) in the Plenary Hall of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) refused petition filed by drug convict Sutrisno Nugroho entirely. Sutrisno reviewed materially Law No. 35/2009 on Narcotics (Narcotics Law). He challenged the regulation on criminal sanctions for narcotics abuse. The hearing of reading of Decision No. 31/PUU-XV/2017 was held by the Constitutional Court (MK) on Tuesday (10/10) in the Courtroom. 

In his petition, the Petitioner claimed that the enactment of Article 112 paragraph (1) of the Narcotics Law must be accompanied by positive urine test results from a person suspected as a drug abuser as well as evidence on him. In response to the claim, in the Constitutional Court opinion read out by Justice I Dewa Gede Palguna, the Court was of the opinion that the assessment of a case in a concrete case is actually the domain of law enforcers, in this case the investigator. Therefore, Article 112 paragraph (1) of Narcotics Law particularly along the phrase “menguasai, memiliki, dan menyimpan” ("maintain, own, and keep") must be related to evidence in a person suspected as an abuser. Justice Palguna added, according to the Court, in terms of terminology it actually has a very clear meaning. However, with the increasingly complex modus and motives of the crime of narcotics abuse, it is not impossible that there is a case where no evidence is found on a suspect of narcotics use whose urine test results is positive. It is probable considering that when the person is caught, the evidence has been used and/or it may not be in the person’s possession. That is what the Petitioner questioned, especially if certain amount of evidence is not found on the person. With this consideration, the Court was of the opinion that the absence of evidence on a suspect of substance abuse, especially of a certain amount, cannot be used as a reason for the investigators not to charge someone with Article 112 paragraph (1) of Narcotics Law.

Justice Palguna continued that according to the Petitioner, in the a quo case, investigators should charge someone with Article 127 of Narcotics Law and against the requirement of Article 127 of the Narcotics Law as intended by the Petitioner, while the Court considered it to be possible, as long as the alleged perpetrator of a misuse meet the elements specified in Article 127 of the Narcotics Law. However, he continued, the Court stressed that the authority to determine it lied with the investigator.

“However, the spirit of the a quo law requires investigators to enforce the law professionally and proportionally, by not making this gap an opportunity to abuse their authority by making it a bargaining chip in determining whether or not they will charge with Article 112 paragraph (1) by including Article 127 of Narcotics Law. That is because the enactment of Article 127 of Narcotics Law on someone categorized as victim of narcotics abuse that fulfills the requirement of Articles 54 and 55 of the Narcotics Law is mandatory,” Justice Palguna stressed.

Justice Palguna also explained that the Court can understand the Petitioner\'s concern about the opinion of some people who stated that Article 112 paragraph (1) of Narcotics Law had the potential for arbitrary action by law enforcement/investigators. For example, on the one hand, an alleged narcotics abuser charged with violating Article 112 paragraph (1) without including Article 127 of Narcotics Law or on the other hand charging a suspected abuser with a Primair\'s allegation of violation of Article 112 paragraph (1) subsider Article 127 of Narcotics Law (subsidized allegation). Regarding the Petitioner’s concern, Justice Palguna insisted that there was no matter of norm constitutionality in Article 112 paragraph (1) of Narcotics Law, especially when associated with the spirit of eradicating narcotics crime, which is an extraordinary crime that seriously threatens the life of the nation, that the law is enacted strongly and strictly. In other words, if an alleged abuser is indeed an abuser based on the elements in Article 127 of Narcotics Law, then against him the provision of Article 127 of Narcotics Law must be enforced.

Based on the consideration, the Court was of the opinion that the Petitioner’s argument that Article 112 paragraph (1) of Narcotics Law is unconstitutional if the element of "maintain, own, and keep" is not accompanied by evidence of class I non-plant narcotics and not accompanied by Article 127 of Narcotics Law based on urine test on an alleged abuser to be tested positive of narcotics use and the existence of evidence in the form of class I non-plant narcotics of less than 5 grams, unreasonable by law. 

"Similarly to the argument of the Petitioners who are of the opinion that Article 114 Paragraph (1) of Narcotics Law is unconstitutional if the element "offers to be offered, sell, buy, accept, intermediate in buying and selling, exchange, or deliver" is not accompanied by evidence of class I narcotics and is not accompanied by Article 127 of Narcotics Law based on urine test on an alleged abuser to be tested positive of narcotics use and the existence of evidence of class I narcotics, also unreasonable by law," said Justice Palguna. (Lulu Anjarsari/Yuniar Widiastuti)