Senior policy analyst of Transform Drug Policy Foundation Stephen Rolles testifying as an expert for the Petitioners virtually at the judicial review hearing of Law No. 35 of 2009 on Narcotics, Tuesday (9/14/2021). Photo by Humas MK/Bayu.
Tuesday, September 14, 2021 | 19:38 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Law No. 35 of 2009 on Narcotics of the case No. 106/PUU-XVIII/2020 on Tuesday, September 14, 2021. The hearing had been scheduled to present the Petitioners’ expert.
Stephen Rolles, a senior policy analyst of Transform Drug Policy Foundation testified as an expert for the Petitioners. The UK-based charity foundation engages in drug policy analysis and advocacy aimed at improving the health and well-being of individuals and society through more equitable and effective drug policies.
Rolles, who testified in English before the plenary hearing chaired by Chief Justice Anwar Usman, said many prescription medical drugs had psychoactive effects and some of them were also used nonmedically.
“Indeed, most of the nonmedical drugs commonly used for medical purposes in many jurisdictions are currently being researched for potential medical applications. These include drugs that act as stimulants that increase energy and make people awake, such as cocaine, amphetamine, and MDMA,” he said as interpreted to Indonesian by Miki Rusindaputra Salman.
He added that all medical drugs have potential risks, even when used as prescribed. Many of them have known side effects and risks that must be carefully managed by doctors, pharmacists, and other healthcare professionals who treat patients. Even drugs such as over-the-counter pills for headache have risks if used incorrectly.
He believes all medical drugs are subject to various levels of licensing and regulations on matters such as how and where they are available, who can prescribe or sell them, who can access them, how they are produced, how they are transported and stored, what information they are sold, and so on. Although the legal system differs from country to country, in general the greater the risk of a particular medical drug, the more stringent the regulations imposed on it.
Drug Abuse
Rolles further explained that one of the challenges that medical drug regulations had to face was the specific risk that certain drugs manufactured for medical purposes may be misused due to their psychoactive effects. This is an important issue that deserves attention, as it has resulted in the development of laws, legal systems, and regulations over the last century, both domestic and international.
In addition, Rolles said, while no system is perfect and diversion is a concern in most of these situations, the legal and regulatory systems that have evolved over the years have generally been very effective in limiting even nonmedical uses of medical drugs, even the riskiest ones.
“For most of these drugs, the vast majority of nonmedical uses go through illegal production and criminally-controlled distribution networks, because they are banned by the government and there are no legal supply options. Misappropriated or diverted medical supplies are only a small part of the total nonmedical uses,” he explained.
Rolles also explained opioids, which is an important drug in controlling pain and is good for postoperative pain, childbirth, chronic back pain, rheumatic pain or neuropathic pain, and for palliative medicine i.e. the management of people’s pain at the end of their lives, for example those with terminal cancer. Opioids used in this situation include codeine, pethidine, tramadol, hydromorphone, oxycodone, morphine, diamorphine, and fentanyl.
“All of these opioids can and to varying degrees also be used nonmedically and many people are likely already aware of the various problems associated with opioid addiction and the risk of overdose. There is a lot of complexity surrounding the regulation of these drugs, but it should be noted that for the opioid drugs most associated with addiction and overdose globally—such as diamorphine, also known as heroin, and fentanyl, which are strong synthetic opioids, yes, about 50 times stronger than heroin—almost all of the supply for nonmedical users is through illegal channels,” he explained.
Rolles believes the medical use of these drugs, for example in the UK, is very strictly enforced, and effective, and there is almost zero abuse of these drugs. This could be a useful case study example or illustrate how banning all nonmedical users would not result in a reduction in nonmedical use of these drugs, but would only reduce doctors’ ability to choose the most appropriate form of pain control for their patients.
“However, there have been instances where prescribed opioids have been diverted for nonmedical use, particularly in the United States with drugs such as oxycodone. Weaknesses in the regulatory system have been identified and addressed, and additional restrictions imposed, so that legal medical supplies can continue, but in a more appropriate framework,” he added.
It is important, Rolles said, that we strike the right balance in how tight the control is. While there are inadequate regulatory frameworks, there are also overly restrictive frameworks making access to some essential medicines in certain countries difficult or even impossible. The ability of the regulatory framework to adapt and change in response to emerging issues, whether tightening or loosening restrictions as needed, is an essential part of a functioning regulatory framework.
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Cannabis for Medical Therapy
The case No. 106/PUU-XVIII/2020 was filed by Dwi Pertiwi, Santi Warastuti, Nafiah Murhayanti, Perkumpulan Rumah Cemara, the Institute for Criminal Justice Reform (ICJR), and the Community Legal Aid Institute (LBHM) (Petitioners I-VI). They requested the material judicial review of the elucidation to Article 6 paragraph (1) letter a and Article 8 paragraph (1) of the Narcotics Law, which prohibits cannabis use for medical purposes. They believe this has harmed their constitutional rights as it kept the Petitioners’ children from receiving treatment that can improve their health and quality of life.
At the preliminary hearing on Wednesday, December 16, 2020, the Petitioners stated that three of them are mothers of cerebral palsy patients. Dwi Pertiwi have given her child cannabis oil in a therapy in Victoria, Australia in 2016. She couldn’t continue with the therapy in Indonesia due to threat of criminal sanctions by the a quo norm. This was also true of the other two petitioners. Meanwhile, Perkumpulan Rumah Cemara, ICJR, and LBHM are nonprofit organizations formed to give society access to healthcare.
The Petitioners argue that the elucidation to the a quo norm has led to the loss of the Petitioners’ right to health services as regulated in Article 28H paragraph (1) of the 1945 Constitution. Such a right has been adopted in Article 4 letter a of the Narcotics Law, which states that the law serves to guarantee the availability of narcotics for the interest of health services and/or development of science and technology. Meanwhile, Article 7 regulates the sole legal use of narcotics for health services and/or development of science and technology. This means narcotics use can be legal and is inseparable from the right to health services guaranteed by the Constitution.
Article 8 paragraph (2) of the Narcotics Law allows opportunities for research on type I narcotics. However, the elucidation to Article 6 paragraph (1) letter a and Article 8 paragraph (1) of the Narcotics Law has eliminated the Petitioners’ right to enjoy the benefits of science and technology development in the form of research results on the health benefits of this type of narcotics.
Therefore, in their petitum, the Petitioners requested that the Court declare the elucidation to Article 6 paragraph (1) letter a of Law No. 35 of 2009 on Narcotics in violation of Article 28C paragraph (1) and Article 28H paragraph (1) of the 1945 Constitution insofar as not interpreted as “In this provision, ‘Type I Narcotics’ are narcotics that may be consumed for the interest of science development and health services and/or therapy, and have a very high potential to cause dependency.”
Writer : Utami Argawati
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/15/2021 11:53 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Tuesday, September 14, 2021 | 19:38 WIB 439