Chief Justice Anwar Usman reading out the verdict for the judicial review of Law No. 35 of 2009 on Narcotics, Wednesday (7/20/2022). Photo by Humas MK/Ifa.
Thursday, July 21, 2022 | 08:36 WIB
JAKARTA, Public Relations—The Court is empathetic to the plight of sufferers of certain diseases that the Petitioners believe can be cured ‘phenomenally’ by therapy using Type I narcotics. However, it believes there has not been valid results of scientific study and research. Therefore, it had no other choice than to encourage the use of Type I narcotics only after scientific studies and research relating to the potential uses in health services and/or for therapy. Furthermore, the results of scientific studies and research can encourage legislators to consider policy changes regarding the use of Type I narcotics.
Such is the Constitutional Court’s (MK) legal considerations in Decision No. 106/PUU-XVIII/2020 on the judicial review of Law No. 35 of 2009 on Narcotics. The petition 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).
The Court rejected the entire petition in its verdict.
“[The Court] adjudicated, declares the petition by Petitioners V and VI inadmissible; rejects the Petitioners’ petition in its entirety,” Chief Justice Anwar Usman pronounced alongside the other eight constitutional justices at the virtual ruling hearing from the plenary courtroom on Wednesday, July 20, 2022.
The Court asserted that the spirit in the general provisions of the Narcotics Law stresses that certain types of narcotics are beneficial substances or medicine and necessary for the treatment of certain diseases. However, if misused or used not in accordance with the standard of treatment, they can have very detrimental consequences for individuals or society. Moreover, certain types of narcotics whose use is still strictly prohibited by law other than what is expressly allowed, such as Type I, are only allowed for the development of science.
“It would be vastly detrimental if [amid] the restrictions there were abuse and illegal distribution of narcotic, which could lead to even greater dangers for the nation and the state, and would in turn damage the nation’s generations and weaken national resistance,” said Constitutional Justice Daniel Yusmic P. Foekh reading out the legal considerations.
Although medical use of narcotics has been legally approved in countries such as Argentina, Australia, United States, Germany, Greece, Israel, Italy, Netherlands, Norway, Peru, Poland, Romania, Colombia, Switzerland, Turkey, United Kingdom, Bulgaria, Belgium, France, Portugal, Spain, New Zealand, and Thailand, it cannot be used as a parameter for such use in all countries because of different substances of the narcotics, the culture of the people, as well as the facilities and infrastructure available.
The Court believes that the ‘phenomenal’ use of narcotics as treatment for certain diseases cannot offset the danger of its use without sound preparations, especially given the lack of facilities and infrastructure in Indonesia. Moreover, Type I narcotics are highly addictive. Therefore, despite its urgency, its use must take into account the country’s preparedness.
Scientific Studies
In response to the Petitioners’ request that the Elucidation to Article 6 paragraph (1) letter a of the Narcotics Law be interpreted as “In this provision, ‘Type I Narcotics’ are narcotics that may be used for the interest of the development of science and health services and/or for therapy, and have a very high potential to cause dependency,” the Court asserted that the categorization of narcotics into Types I, II, and III is important, given that each has different effects. It also asserted that any abuse could lead to not only threat to life, but also to human life in general.
Therefore, such categorization should remain as a reference for regulations on the use, study and research, and law enforcement in case of abuse. Strict scientific scrutiny is required for the categorization because of the different effects and dependency level of each type of narcotics, as is the suggestion to change the category of any narcotic substance.
“Therefore, in order to make the aforementioned changes, really comprehensive and in-depth policy through important stages that must start with scientific studies and research. Furthermore, it has been stressed in the Elucidation to Article 6 paragraph (1) letter a of the Narcotics Law that Type I narcotics can only be used for the development of science and not for therapy, and it highly potentially causes dependency. Therefore, from the imperative restriction, it can be understood that Type I narcotics is a type of narcotics with the most serious effects compared to [other types],” Constitutional Justice Suhartoyo said reading out the Court’s legal considerations.
Government Supervision
The Court also explained that the threat of imprisonment is driven by the fact that the state really intends to protect the nation and state’s safety from the dangers of narcotics abuse, especially Type I narcotics. The state is obligated to perform strict supervision in order to prevent narcotics abuse. This rationale is one of the important reasons behind studies and research on Type I narcotics for medical use and/or therapy, including for the development of science and technology and for diagnostic and laboratory purposes after an approval by the Minister of Health and the Head of the National Agency of Drug and Food Control (BPOM), as referred to in Article 8 paragraph (2) of the Narcotics Law.
Legislators’ Discretion
The Court also said that the Elucidation to Article 6 paragraph (1) letter a of the Narcotics Law also includes ‘express prohibition against the use of Type I narcotics for therapy.’ In other words, the ‘phenomenon’ of this kind of use emerged even before the Law was promulgated.
That said, the Court saw the need to stress that the Government immediately follow up on the a quo decision by allowing studies and research on Type I narcotics for medical use and/or therapy, whose results could inform policymaking and might even allow amendments to the Law by legislators to accommodate the need for such use.
The Court also reminded legislators and those who draft implementing regulations to anticipate such matters carefully, given that continuous education on the matter is still needed in Indonesia.
The Court concluded that the Elucidation to Article 6 paragraph (1) letter a of the Narcotics Law has provided benefits and legal certainty in relation to the right to develop oneself through the fulfillment of one’s basic needs, the right to education and benefits from science and technology, and to improve quality of life for the welfare of humankind as mentioned in Article 28C paragraph (1) of the 1945 Constitution. The provision has also provided legal certainty relating to the right to prosperous life both materially and spiritually, to reside, and to have good and healthy environment, and to health services as mentioned in Article 28H paragraph (1) of the 1945 Constitution. Therefore, the Court declared the Petitioners’ argument of the unconstitutionality of the Elucidation to Article 6 paragraph (1) letter a of the Narcotics Law legally groundless.
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The Petitioners 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 argued that the elucidation to the a quo norm had 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 R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/22/2022 13:50 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.
Thursday, July 21, 2022 | 08:36 WIB 222