Light Punishment for Pharmaceuticals Crime in Health Law Challenged

Petitioner Rega Felix at the preliminary hearing of the judicial review of the Health Law for case No. 106/PUU-XX/2022, Wednesday (11/16/2022). Photo by MKRI/Panji.

Wednesday, November 16, 2022 | 13:54 WIB

JAKARTA (MKRI)—The cases of acute renal failure in Indonesian children linked to ethylene glycol (EG) in medicinal syrups compelled advocate Rega Felix to challenge Law No. 36 of 2009 on Health. The Petitioner of case No. 106/PUU-XX/2022 conveyed his challenge against Article 196 of the Health Law at the preliminary hearing presided over by Constitutional Justices Enny Nurbaningsih (panel chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh.

Article 196 of the Health Law reads, “Every individual who intentionally produce or distribute pharmaceutical preparation and/or health equipment not complying to the standard and/or requirement of safety, efficacy or benefit, and quality as referred to in Article 98 subsection (2) and subsection (3) shall be penalized with imprisonment at the longest 10 (ten) years and a fine of at the most Rp 1,000,000,000 (one billion rupiah).”

The Petitioner asserted that Article 196 of the Health Law contradicts Article 28A, Article 28G paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution because some pharmaceutical preparations available in the community have resulted in numerous deaths, and he stressed that the production of such preparations should be categorized as a crime. The action has had multidimensional impacts involving humanity and non-derogable human rights as set forth in Article 28I paragraph (1) of the 1945 Constitution.

“Therefore, the Law should be a means of preventing undesirable events in society, but the a quo article only imposes light punishments so the perpetrators of crimes relating to pharmaceutical preparations are not afraid to commit their actions, even though the impact of their actions is massive and injures humanity,” he explained.

Extraordinary fear has spread in society and affected the Petitioner and his family, given that those common medicines have caused the death of so many children and have now been withdrawn from circulation. The Petitioner appealed to the constitutional justices to declare the phrase “shall be penalized with imprisonment at the longest 10 (ten) years” in Article 196 of the Health Law unconstitutional and not legally binding conditionally if not interpreted “shall be penalized with a death sentence, a life sentence, or imprisonment of 5 (five) years at the shortest and 20 (twenty) years at the longest.”

Justices’ Advice

In response to the petition, Constitutional Justice Manahan M. P. Sitompul recommended the inclusion of Constitutional Court Regulation (PMK) No. 2 of 2021, which is the guidelines on the Court’s authority over the a quo case. He also hoped the Petitioner would include specific loss in his elaboration of legal standing, which sets him apart from other citizens.

“Please explain the Petitioner’s specific loss, so that [your] constitutional impairment is clear. Please pay attention to the punishment that the Petitioner requested because it cannot be determined willy-nilly without any further study,” he said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh highlighted the that the touchstones must be elaborated and requested that the Petitioner study criminal provisions and its implementation, since he requested for a longer punishment for a crime against humanity.

“In the Rome Statute, categories including genocide and crimes against humanity have also been adopted by Indonesian law. So, build a theoretical framework on other countries’ laws on these aspects, so that the Constitutional Court can review it meticulously in this case,” he recommended.

Next, Constitutional Justice Enny Nurbaningsih advised the Petitioner to review Constitutional Court decisions on criminal policies to inform the petitum and to elaborate his constitutional impairment due to the norm being petitioned. This would be an important entry into the case.

Before concluding the session, Justice Enny informed the Petitioner that he should submit the revised petition by Tuesday, November 29 at 11:00 WIB to the Registrar’s Office, who will inform him of the next hearing’s schedule.

Writer        : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/17/2022 09:07 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.

Wednesday, November 16, 2022 | 13:54 WIB 79