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Panel preliminary examination hearing of the judicial review of the Narcotics Law, Monday (2/11) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a material judicial review hearing of the Elucidation to Articles 111 and 114 of Law No. 35 of 2009 on Narcotics on Monday, November 2, 2020. The case No. 86/PUU-XVIII/2020 was filed by Ardian Aldiano, a defendant at the Surabaya District Court, who was charged for growing 27 marijuana plants hydroponically for personal use. He had started smoking marijuana as treatment for his seizures, which then made him addicted. To the Court, he expressed his wish to be free from addiction, proven by a copy of his medical records of narcotics rehabilitation from Garuda Gandrung Satria (GAGAS) Foundation.

At the hearing led by Constitutional Justice Suhartoyo, attorney Singgih Tomi Gumilang said the Petitioner had suffered constitutional impairment due to the enactment of the articles, especially regarding the right to recognition, guarantee, protection, and legal certainty, due to the lack of a clear definition of the word “tree” in Articles 111 and 114 of the Narcotics Law. “The specific and actual loss of constitutional right and/or authority of the Petitioner was [caused by] the exclusion of Article 128 of the Narcotics Law, which guarantees Indonesian citizens who are being treated twice at medical and social rehabilitation institutions to not be criminally charged,” he said.

He added that the Faculty of Forestry of Gadjah Mada University had defined herbs, shrubs, and trees. It defined a tree as a plant that has clear roots, stems, and crowns with a minimum height of 5 meters (Dengler); a woody plant that has a clear trunk and a clearly-shaped crown, which is not less than 8 feet tall (Baker); and a woody plant of several years with a single distinct trunk (Prosea).

The Petitioner believes that the obscure definition of “tree” in the Elucidation to Articles 111 and 114 of the Narcotics Law has made the articles ambiguous and can worsen the image of law enforcement related to narcotics in Indonesia. Singgih said any Indonesian citizen who is undergoing stage I examination at the police station or the National Narcotics Agency (BNN), stage II examination at the Prosecutor’s Office, and/or stage III criminal examination at the district court, high court (appeal), and the Supreme Court (cassation) would be disadvantaged by the Elucidation to Articles 111 and 114 of the Narcotics Law.

The Petitioner believes the ambiguity of “tree” in Article 111, Article 114 paragraph (2), and the Elucidation to Article 111 of the Narcotics Law has compelled the Public Prosecutor of the East Java High Court to charge him with a crime to nine years of imprisonment including pretrial detention and a fine of one billion rupiahs or a three-month detention.

He also alleges that the Elucidation to Articles 111 and 114 of the Narcotics Law is unconstitutional. He believes Articles 111 and 114 to consist of two paragraphs each, but the elucidation to both articles do not. The elucidation to the articles only reads “sufficiently clear,” which might cause multiple interpretations. The Petitioner believes the elucidation to both articles to be in violation of Article 28D paragraph (1) of the 1945 Constitution and requested in his petitum that the Court declare them unconstitutional and not legally binding.

Justices’ Advice

Constitutional Justice Enny Nurbaningsih advised that the Petitioner affirm his constitutional right that had been violated by the enactment of the elucidation to those articles and reconsider his reason to file the petition. Constitutional Justice Daniel Yusmic P. Foekh advise the Petitioner to study Court decisions No. 89/PUU-XI/2013 and 93/PUU-XIII/2015 related to Articles 111 and 114 of the Narcotics Law and elaborate the definition of the word “tree.” The Petitioner was given 14 workdays to revise the petition following the justices’ recommendations. The next hearing will examine the revised petition.  

Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Andhini S. F.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/05/2020 7:44 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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