Government experts for the judicial review hearing of Law No. 35 of 2009 on Narcotics taking an oath virtually, Monday (3/7/2022). Photo by Humas MK/Ifa.
Tuesday, March 8, 2022 | 01:07 WIB
JAKARTA, Public Relations—The material judicial review of Law No. 35 of 2009 on Narcotics for case No. 106/PUU-XVIII/2020 continued in the Constitutional Court (MK) virtually on Monday, March 7, 2022. At the hearing chaired by Chief Justice Anwar Usman, the Government presented three experts: Mufti Djusnir, Rahmana Emran Kartasasmita, and Ahmad Redi.
Mufti Djusnir testified that as the Head of the Narcotics Laboratory Center of National Narcotics Agency (BNN) he does analyses, testing, and research on narcotics evidence and compounds suspected of being narcotics for the justice system. He stated that if based on a research on a Type I narcotics as described in Article 8 paragraph (1) of the Narcotics Law, it turns out that this type of narcotics contains an active substance suspected of medicinal properties, it still needs to be tested or researched both in vitro and in vivo to determine its side effects or adverse effects on the human body.
“When the testing is completed, further testing and research must be carried out—preclinical trials and clinical trials, that is, tests on experimental animals followed by tests on humans, in order to ensure the safety, effectiveness, and adverse effects caused by the administration of a type of compound,” said Mufti, who is also a pharmacy expert staff of BNN.
Also read: The Constitutionality of Type I Narcotics for Medicine
He believes that if the substance is deemed effective, safe, and efficacious, it will be classified in the final stage of testing, whether it belongs to Type II—strongly addictive but is useful for treatment—or Type III—mildly addictive but is useful for treatment.
Mufti added that Article 39 of the Single Convention on Narcotic Drugs, 1961 recognizes state sovereignty in making stricter regulations domestically following their own judgment if they deem any substance dangerous.
“In this case, Indonesia has Law No. 35 of 2009 on Narcotics, where cannabis and its derivatives are classified as Type I, or highly dangerous,” he asserted.
Mufti stressed that studies by Indonesian health experts showed results that are different from the recommendations by the WHO’s Expert Committee on Drug Dependence (ECDD). This means that further studies are needed for certain characteristics of cannabis.
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Safety, Efficacy, Quality
Rahmana Emran Kartasasmita testified that the state should regulate substances that are potentially toxic, including drugs, especially narcotics that are addictive and vulnerable to abuse. Indonesia has regulated narcotics in Law No. 35 of 2009, with three classifications (Type I-III).
“The Type I narcotics was declared prohibited for medical purposes. However, it is not prohibited for the development of science and technology,” said the professor of pharmaceutical chemistry at the Pharmacochemical Group of the School of Pharmacy of Institut Teknologi Bandung.
Also read: Asmin Fransiska: Indonesia Misinterpreted Single Convention on Narcotic Drugs, 1961
Kartasasmita then explained the safety, efficacy, and quality of substance that is used as medicine. He believes that they are requirements for any substance to be used for medical purposes and/or clinically. The substance’s safety, efficacy, and quality must be proven since it is at the drug discovery and development stage.
“It constitutes a research, which includes a series of preclinical and clinical testing stages. The drug discovery and development stage is a scientific development activity or, in other words, research and development to obtain an efficacious drug for health services in humans,” he explained.
Kartasasmita added that in the preclinical testing stage in the drug discovery process, the safety of a substance is proven through toxicity testing. This is to prove that its sensitivity and safety are tested to see whether it can be used in humans. At this stage, he said, the substance’s efficacy is proven through a series of experimental pharmacology testing using test animals.
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Narcotics for Development of Science and Technology
Constitutional law expert Ahmad Redi said in his testimony that Article 4 letter a of the Narcotics Law regulates the legality of narcotics use for the development of science and technology. The law allows stakeholders to conduct research and development of narcotics.
“This is referred to in the provision of Article 13 paragraph (1) of the Narcotics Law, which stipulates that science institutions in the form of state or private education and training centers and research and development centers may obtain, plant, keep, and use narcotics for the interest of science and technology after obtaining the Minister’s permit. The Minister of Health also issued Decree No. HK.02/Menkes/118/2015 on the Permit to Obtain, Plant, Keep, and Use the Cannabis and Coca Plant,” Redi said.
As such, he added, the Narcotics Law is in line with the spirit of the Constitution, especially relating to the guarantee of citizens’ right to benefits of science and technology.
“Normatively, there is no violation of the citizen’s constitutional rights due to the Elucidation to Article 6 and Article 8 of the Narcotics Law regarding the right to the benefits of science and technology. Of course, to take advantage of the results of the research and development, standards and fixed procedures are needed, so that in the end something can be used for the benefit of health development,” he emphasized.
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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.
Writer : Utami Argawati
Editor : Nur Rosihin Ana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/8/2022 12:25 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, March 08, 2022 | 01:07 WIB 230