Legal counsels Muhammad Zen Al-Faqih and Mohammad Adhi Tiawarman during the Decision Pronouncement Hearing of Judicial Review of Law Number 35 of 2009 on Narcotics, Thursday (26/09) at the Plenary Courtroom. Photo by MKRI/Ifa.

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JAKARTA, MKRI – The Constitutional Court (MK) dismissed the judicial review petition on Article 146, paragraph (1) and paragraph (2) of Law Number 35 of 2009 on Narcotics (Narcotics Law). The Petition was filed by Yuyun Yuanita, the wife of a Swiss national. Yuyun’s husband had been deported from Indonesia and is prohibited from re-entering due to narcotics crime.

The decision pronouncement hearing of case number 95/PUU-XXII/2024 was held on Thursday, September 26, 2024. During the hearing, Justice Arsul Sani conveyed the Court’s legal consideration, which is that the provisions of Article 146 paragraph (1) of Narcotics Law are requested to be declared conditionally constitutional. In general, these provisions regulate legal action regarding the deportation of foreign nationals convicted of narcotics crimes from Indonesia after completing their primary sentence. Article 146 paragraph (1) of Narcotics Law reads, “Any foreign citizens that commit a criminal act of Narcotics and/or Narcotics Precursor and have undergone its criminal as provided in of this Law, will be deported out of the territory of the Republic of Indonesia.” The threat of additional punishment in the form of expulsion from the jurisdiction of the Republic of Indonesia for foreign nationals who commit narcotics crimes is intertwined with the basic rules of immigration for foreigners that also apply in many countries.

Normatively, Justice Arsul Sani continued, the norm stipulated in Article 146 paragraph (1) of the Narcotics Law is a derivation of Indonesia's basic immigration policy that foreign nationals both entering Indonesian territory and applying for a residence permit in Indonesian territory must be in accordance with the intent and purpose of being in Indonesia, in this case only foreign nationals who provide benefits and do not endanger security and public order in Indonesian territory.

“This basic immigration policy is actually adopted by all countries as a manifestation of the sovereignty of each country, protection of national interests and citizens concerned that must be obeyed by all people or foreign citizens who are in other countries, whether the person or foreign citizen is then married and have a family with local citizens or not. The consequences of violation and non-compliance with the prevailing law in any country will have an impact in the form of legal action for the violation, including expulsion (deportation) and refusal to reentry,” said Justice Arsul.

Furthermore, Justice Arsul explained, regarding the norm of Article 146 paragraph (2) of Narcotics Law which basically regulates the prohibition for foreign citizens who have been deported for committing narcotics crime to be able to re-enter the territory of the Republic of Indonesia is a logical consequence of the norm in Article 146 paragraph (1) of Narcotics Law. Thus, foreign nationals who have been deported from the territory of Indonesia for committing narcotics crimes are prohibited from re-entering the territory of Indonesia.

The rule of law against foreign nationals who have previously committed a crime in a country (inadmissibility), which even for certain crimes the deterrence can be permanent (permanent bar), is a policy that is also applied by many countries in order to prevent the repetition of serious crimes, such as narcotics crimes.

According to the Court, Indonesia's legal policy that prohibits foreign nationals from re-entering the territory of the Republic of Indonesia for life is also contained in Law Number 6 of 2011, which regulates immigration on the basis that it can disrupt security and law and order. The elucidation of Article 102 paragraph (3) of Law 6/2011 explicitly states one of the criminal acts categorized as acts that can disrupt security and order so as to cause foreign nationals to be prohibited from entering Indonesian territory for life is narcotics crimes or criminal acts. By using reasonable reasoning, the lifetime prohibition in question shows how serious the crime and/or the consequences caused to the Indonesian people from narcotics crimes or offenses.

By referring to all the considerations above, Justice Arsul continued, the Court has determined that the Petitioner's petition is not in line with the spirit of eradicating narcotics crime in the territory of the Republic of Indonesia. The interpretation as requested by the Petitioner can be a new method in narcotics trafficking conducted by transnational organized crime groups in Indonesia. With regard to the Petitioner's argument regarding the injustice and discriminatory treatment because what was experienced by the Petitioner was not experienced by the wives of Indonesian citizen husbands who committed narcotics offenses, because according to the Petitioner after their husbands served their criminal sentences, the husband and wife could reunite to form a family and share affection with each other. However, in his petition the Petitioner did not clearly describe the relationship between the perceived injustice experienced by the Petitioner and the principles contained in the 1945 Constitution of the Republic of Indonesia.

“Even if the assumption of injustice and discriminatory treatment as argued by the Petitioner can be proven, in the Indonesian legal system which recognizes human rights as set out in Chapter XA on Human Rights which regulates the recognition of the rights of every person including recognition of the rights of foreign nationals, does not mean placing the same rights without considering the background of his citizenship status. The existence of bilateral or multilateral agreements between countries that regulate the protection of citizens of one country who are in another country shows that there is a distinction of rights and obligations between citizens of a country and foreign citizens in the legal system of a country. However, it does not mean that foreign citizens do not obtain legal protection in accordance with the principle of due process of law, for example in the event of a legal process experienced by the Petitioner's husband, the Petitioner's husband can still take legal remedies such as appeal, cassation, and judicial review as well as legal remedies that Indonesian citizens can do,” said Justice Arsul.

Therefore, according to the Court, the norms of Article 146 paragraph (1) and paragraph (2) of the Narcotics Law are not contrary to Article 28B paragraph (1) and paragraph (2), Article 28D paragraph (1) and Article 281 paragraph (2) of the 1945 Constitution. Thus, the Petitioner's request is unreasonable according to the law in its entirety.

Author: Utami Argawati.

Editor: N. Rosi.

PR: Tiara Agustina.

Translator: Rizky Kurnia Chaesario (NL)

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.

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