Constitutional Court Rejects Legalization Of Medical Marijuana: It Doesn't Mean Santi Warastuti's Struggle Is Finished

JAKARTA - Please my son needs medical marijuana. The contents of the poster that was brought by a Santi Warastuti in the Car Free Day area on Jalan Sudirman Thamrin on June 26 then captured the attention of many people.

In order to cure his son who has cerebral palsy, he walked from the Hotel Indonesia roundabout to the office of the Constitutional Court on Jalan Merdeka Barat, Gambir, Central Jakarta.

Santi doesn't care what people think. He is aware that marijuana is illegal and has a negative stigma in Indonesian society. “But if they only knew how I felt, they might be able to understand. If you want to insult me, put on my shoes and feel my way," he told VOI, Wednesday (20/7).

Santi walked with her husband and child, Pika Sasikirana who was sitting in the stroller. In addition to posters, he also brought a letter which he planned to submit directly to the Constitutional Court. With the hope, the Court can grant the legality of medical marijuana.

"I want to leave it to the security officers," said Santi. Unfortunately, the MK's security officers rejected the letter on procedural grounds.

At that time, there was no response from the Court regarding the lawsuit for judicial review of Law No. 35 of 2009 concerning Narcotics which he had sent since November 2020.

Pika, said Santi, is known to have suffered from cerebral palsy since 2015. Various methods of treatment have been carried out. At this time, Phika still regularly takes medical drugs for seizures, regularly acupuncture, and regularly takes supplements. However, for seven years, the results are still far from expectations. "Not to mention the side effects of using drugs that Pika sometimes has to feel."

Cannabis oil is a panacea for people with cerebral palsy, it was known from his superior when he was still working in Bali, a foreign citizen. “He took pictures of cannabis oil products with me while abroad. He said cannabis oil has always been used as a treatment for cerebral palsy in some countries."

Then, while in Yogyakarta, Santi got acquainted with Dwi Pertiwi, a mother who had the same exam as her. Dwi's son also has cerebral palsy. "He told me that he had brought his son to Australia for treatment, where he used medical marijuana therapy, the results were good," he said.

Together with one other colleague, Santi and Dwi filed a lawsuit to the Constitutional Court regarding the legalization of medical marijuana in 2019. They asked the Court to withdraw the explanation of Article 6 paragraph (1) letter a and Article 8 paragraph 1 of Law Number 35 of 2009 concerning Narcotics which prohibits the use of Narcotics Group I for health services.

This is because this provision is contrary to Article 28H paragraph (1) of the 1945 Constitution which guarantees the right to health and Article 28C paragraph (1) concerning the right to benefit from the results of the development of science and technology.

"Hopefully, mothers who experience the same thing as us can survive more and cerebral palsy can be handled properly," said Santi.

Unfortunately, marijuana is still considered 'haram' in Indonesia. In fact, in a number of countries such as Germany, Canada, Italy, and Thailand, marijuana can already be used for medical purposes.

The Constitutional Court (MK) finally issued Decision Number 106/PUU-XVIII/2020 on July 20, 2022, which rejected the application for a judicial review of the article prohibiting Narcotics Category I for health services.

"Judging, rejecting the petitioners in their entirety," said Chief Justice of the Constitutional Court Anwar Usman in the trial, Wednesday (20/7).

The Constitutional Court assessed that the material being tested was the authority of the DPR and the Government. The Constitutional Court asked the government to immediately conduct research on Narcotics Category I with the practical interest of health services.

The results of these scientific studies and research must be used as material by policy makers to change regulations related to the use of Narcotics Category I for the benefit of health.

The trial for this case has been held ten times since the application was sent to the Constitutional Court on November 19, 2020. The individual applicants who submitted the petition included Dwi Pertiwi, Santi Warastuti, and Nafiah Muharyanti, each of whom has a child with cerebral palsy and requires treatment with Class I Narcotics.

The Narcotics Advocacy Coalition for Health, in its release, outlined the points considered by the Constitutional Court to reject the lawsuit. According to Maruf, an LBH Community Advocate who is a member of the Narcotics Advocacy Coalition for Health, the Constitutional Court is of the view that although various countries have regulated the use of several types of Narcotics Category I for treatment, it does not mean that other countries that have not regulated such as Indonesia also do not optimize the use of narcotics for treatment. health services.

Another reason for the Constitutional Court is that the types of narcotics that may be useful for health services are not directly proportional to the magnitude of the consequences caused by their high level of dependence.

The Constitutional Court also stated the fact that various countries that have regulated this matter cannot be used as parameters to be applied by all countries because there are different characters, types of narcotic substances, legal cultural structures, and required infrastructure.

“The provisions on the classification and arrangement as stated in the aquo article are included in the open legal policy or the authority of the legislators. Thus, narcotics policy reform is completely left to the Government and the DPR," said Maruf, Wednesday (20/7).

On that basis, continued Maruf, the Narcotics Advocacy Coalition for Health asked the Government and the DPR to review the full ban on the use of narcotics for health purposes, so that the explanation of Article 6 paragraph (1) and Article 8 of the Narcotics Law must be an important point to be abolished in the revision of the Narcotics Law.

With this revision, the government and the private sector in accordance with the mandate of the Constitutional Court will have a great opportunity to conduct comprehensive and in-depth research on the classification of narcotics, and the technical use of narcotics for health purposes. "In fact, up to building a strong system related to this," he said.

Maruf also asked the government to immediately conduct research and scientific studies on the types of narcotics class I that can be used as health services. This research is also important to produce a clear and comprehensive scheme on the use of Narcotics Group I for the benefit of health services.

"For the record, the Constitutional Court emphasized the word "immediately" in its decision, so this must be interpreted as no more delays and uncertainty from the government in conducting narcotics research for health services," explained Maruf.

The government can refer to other studies abroad as well as those published by UN agencies, such as the 2019 study from the Expert Committee on Drugs Dependence (ECDD), which is the basis for recommendations for class changes and the use of cannabis for health services at the Commission on Narcotics Drugs (CND).

Hearing the Constitutional Court's decision, Santi was not too surprised. He remains grateful, at least there has been certainty given, so that he can draw up new steps in the future.

However, Santi hopes that apart from accelerating research, there is a solution from the government to help children with cerebral palsy. “Medical research into marijuana for medical use or as a drug takes time, but we parents of children with special needs are also a race against time. While waiting, the government can give us a solution, as to how good it is. So while waiting for research, there is a solution that we can do,” he said.

Dwi Pertiwi also hopes that the government can find a way out. Pay attention to children with special needs, especially those who have seizure problems.

“The existing medical drugs are not helping. That's how we feel. In my experience, when Musa (Dwi's son) was still alive, cannabis oil therapy actually made him feel fresher. If marijuana can't be used, what's the solution? How to make our children comfortable,” he said.

The Narcotics Advocacy Coalition for Health also calls for the government to provide the right solution for people with cerebral palsy. In Indonesia, out of every 1,000 babies born, 9 of them have the opportunity to suffer from cerebral palsy.

“So, there must be other solutions for children with cerebral palsy, especially those who need specific treatment such as cannabis oil therapy. The government must help think about financing for treatment in Indonesia which is not covered by BPJS and other high-cost supporting equipment,” he said.