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Legal
Review in Indonesia Positive Law Concerning Marijuana Use for Medical Purposes
Johan Budi Sapto Pribowo1*, Azis Budianto2, Lucky Ferdiles3
1, 2Universitas Borobudur, East Jakarta, DKI Jakarta, Indonesia
ABSTRACT
The legalization of
marijuana varies across countries, with some prohibiting its use while others
are starting to legalize it for medical purposes. Despite its potential
therapeutic benefits, marijuana use is often stigmatized due to concerns about
addiction. In Indonesia, marijuana is classified as a Class I narcotic,
prohibiting its use for medicinal purposes under Law Number 35 of 2009, which
restricts access to medical marijuana and raises human rights issues for
individuals seeking necessary treatments. This study aims to analyze the potential benefits of legalizing medical
marijuana in Indonesia and propose regulatory changes that align with the
evolving needs of society and human rights principles. The research method used
is a normative legal research method, involving the analysis of legal
documents, literature reviews, and interviews with experts in law and health to
evaluate the impact of regulatory changes on medical marijuana use. The
findings suggest that appropriate legal reforms can reduce stigma, ensure
access to treatment, and uphold the right to health without the threat of
criminal penalties. Therefore, revising narcotic laws to allow the use of
marijuana for medical purposes with proper regulations is crucial to provide
those in need of treatment the opportunity to access marijuana legally without
fear of criminal punishment, and to help reduce the stigma associated with its
use.
Keywords: Narcotics; Marijuana; Legality;
Medical.
INTRODUCTION
The issue of marijuana legalization in
various countries is often perplexing
Law has the primary goal of justice
and ensuring legal certainty, order, and benefits in society. In the context of
Indonesia, the legal system is used as an instrument to enhance the welfare of
society, which includes upholding human dignity and rights. An important aspect
of legal goals is to create an environment supportive of development in various
sectors, including healthcare. Development in the healthcare sector is achieved
through various efforts, one of which is the provision of adequate healthcare
services. Medicine is a key element in the provision of quality healthcare.
With the availability of adequate medicine, public awareness of the importance
of health can be enhanced, thereby encouraging the demand for quality medicine
and healthcare services. Thus, development in the healthcare sector is an
integral part of efforts to achieve legal goals focused on justice, legal
certainty, and benefits in society. In this context, law becomes an instrument
to create an environment supportive of quality healthcare services, thereby
strengthening efforts to enhance the welfare and health of the community as a
whole
Marijuana is known as a remedy for
several types of diseases, but in Indonesian legal regulations, marijuana is
categorized as a Class I narcotic, meaning its use for medical purposes is
prohibited. As a result, the distribution and dissemination of marijuana for
medical purposes are not allowed because it contradicts the Narcotics Law. The
Narcotics Law, regulated under Law Number 35 of 2009, establishes that
narcotics can, on one hand, be beneficial in treatment, healthcare services,
and scientific development, but on the other hand, narcotics can cause
dangerous dependence if misused without strict control and supervision. With
this classification, the use of medical marijuana in Indonesia becomes illegal,
although there is potential for medical benefits from its use. However, the
high risk of addiction and abuse is the main reason why the law regulates
narcotics so strictly. Therefore, the distribution of medical marijuana must
comply with applicable regulations to avoid legal violations
Law Number 35 of 2009 on Narcotics
defines narcotics as substances or drugs derived from plants or synthetic and
semi-synthetic materials that can cause a decrease or alteration of
consciousness, eliminate pain, reduce or eliminate pain, and can cause dependence.
Narcotics are classified into several groups, as regulated in the law
In the medical field, marijuana is
known to have the potential to help treat various conditions such as ALS,
HIV/AIDS, epilepsy, and alleviate the side effects of cancer treatment.
Therefore, marijuana is considered very beneficial for those in need in the
context of health
The classification of narcotics is
regulated in Law Number 35 of 2009. Article 7 states that narcotics can be used
for healthcare services or scientific and technological development. However,
in Article 8, paragraph (1), it is stated that Class I Narcotics are prohibited
for use in healthcare services. Studies on the legalization of marijuana for
medical purposes in the context of health law consider that the Indonesian
society's need for healthcare services is constantly increasing, including the
need for the use of marijuana plants. Therefore, to allow for the use of
marijuana in medical treatment, there is a proposal for Law Number 35 of 2009
on Narcotics to be revised and marijuana plants to be reclassified as Class II
Narcotics, making their use for medical purposes legal.
This legal approach considers the
increasingly recognized medical benefits of marijuana and suggests changes in
narcotics regulations to accommodate the potential use of marijuana in the
context of healthcare. Thus, this law revision can pave the way for the use of
marijuana for medical treatment with strict supervision and regulations.
Recently, the legalization of marijuana for the medical sector has become a
controversy, with Vice President Ma'ruf Amin, as the
chairman of the Indonesian Council of Ulama (MUI) Advisory Board, instructing
the MUI to issue a fatwa (religious edict) regarding the use of marijuana for
medical purposes. Therefore, it is emphasized that this fatwa on medical
marijuana is necessary, but clarification of the limitations of use for
life-saving and health purposes must be clear and explicit because without
clear regulations, misuse may occur. The issue that arises in Indonesia is the
legalization of marijuana as a medical tool. However, in Indonesia itself, the
use of marijuana still clashes with prevailing laws and regulations, especially
in the medical sector
Based on the background description
above, an interesting thing to research is the legalization of marijuana in the
medical sector from a legal perspective. This research looks at how marijuana
legalization from the perspective of the medical sector is for health. Looking
at what several countries out there have done that have legalized marijuana for
health purposes and nothing more than to contribute knowledge to reform
existing laws in Indonesia.
RESEARCH METHODS
The
research method employed in this study is normative legal research conducted
through the analysis of library materials and secondary data. The approach
utilized is normative-juridical (statutory approach) with a
descriptive-analytical nature. The library materials utilized include legal
texts, legal journal articles discussing legal issues, and secondary literature
interpreting and analyzing law from a normative
perspective
The normative approach is a method
used to examine problems in the context of law and statutory regulations,
including rules that can be used as a basis for examining problems and their
legal consequences. In this case, an example is Law Number 35 of 2009
concerning Narcotics. A normative approach is taken in certain statutory
regulations or written laws relating to the concept of legal review of the
legality of marijuana for medical purposes. This research describes the
situation of the object being studied, with a focus on regulations and the
concept of legality of marijuana for medical purposes
RESULTS AND DISCUSSION
According
to the 1945 Constitution article 28 H paragraph (1), every person has the right
to a life of physical and spiritual prosperity, to have a place to live, and to
a good and healthy environment, including health services. Therefore, all
Indonesian people have the right to live in a clean environment, which means
there are no narcotics in it. Narcotics have a significant negative impact on
the life of the nation and state. Narcotics can cause addiction, damage body
organs and disrupt the lives of people who consume them. Therefore, human life
should be free from narcotics and everything that can damage human health and
welfare. Thus, we need to maintain a healthy and safe environment, and prevent
the spread and abuse of narcotics. Protection from the dangers of narcotics is
an important part of efforts to achieve every individual's basic right to
health and well-being.
Narcotics
law in Indonesia is regulated in Law No. 35 of 2009 which includes prohibitions
and criminal threats for narcotics abuse, both by individuals and corporations.
This law contains various terms related to narcotics, such as narcotics
addicts, narcotics abusers, and victims of narcotics abuse. Narcotics addicts
are defined as people who use narcotics to the point of becoming dependent,
while narcotics abuse refers to the use of narcotics that does not cause
dependence. Meanwhile, victims of narcotics abuse are individuals who use
narcotics due to the influence of other people without realizing that the
substance they are consuming is a narcotic.
Marijuana,
which is a Class I narcotic, is regulated in Law no. 35 of 2009, which states
that marijuana can only be used for scientific research and development of
science and technology. The use of marijuana for therapeutic or medical
purposes is not permitted in Indonesia, by the provisions of this law. Thus,
Law no. 35 of 2009 concerning Narcotics prohibits the use of marijuana for
therapeutic or medicinal purposes, and only allows for scientific research and
development. Any violation of these rules may be subject to strict criminal
sanctions, by applicable regulations in Indonesia
From a
legal or juridical perspective, the existence of narcotics is acknowledged and
has a legal basis. Law Number 35 of 2009 concerning Narcotics regulates the use
of narcotics, but only for medical and scientific purposes. The prohibition of
narcotics for purposes other than those needs has led to rampant abuse,
especially as a profitable yet illegal business tool. This narcotics abuse has
resulted in psychological, mental, and physical damage to various layers of
Indonesian society, ranging from children, adolescents, to adults. The spread
of narcotics is no longer limited to major cities but has infiltrated
sub-districts and even small villages. To be more effective in eradicating and
preventing narcotics abuse, the government established the National Narcotics
Agency (BNN) through Presidential Regulation Number 83 of 2007. The BNN plays a
key role in supervising and coordinating efforts to prevent and eradicate
narcotics abuse across Indonesia. With the existence of the BNN, it is hoped
that law enforcement measures against narcotics abuse can be more structured
and effective, thus reducing the negative impacts of narcotics on society and
creating a healthier and safer environment throughout Indonesia
For
individuals who use marijuana without permission, such as planting, nurturing,
owning, storing, controlling, or providing in plant form, they can be sentenced
to a minimum of 4 years and a maximum of 12 years in prison, as well as fines
ranging from IDR 800 million to IDR 8 billion. The punishment can increase if
the resulting plants weigh more than 1 kilogram. Criminal provisions related to
marijuana in the Republic of Indonesia Law Number 35 of 2009 concerning
Narcotics are regulated from Article 111 to Article 116. According to the
Republic of Indonesia Law Number 22 of 1997, which classifies marijuana as a
Class I Narcotic, the use of marijuana can face a maximum sentence of 10 years
in prison. However, according to Law Number 35 of 2009 concerning Narcotics,
the punishment can reach 12 years in prison. The government has specifically
regulated marijuana cultivation through Government Regulation Number 1 of 1980
concerning the Provisions of Planting Papaver, Coca, and Marijuana. Based on
this regulation, educational or research institutions can cultivate marijuana
with permission. They are required to report the location, area of cultivation,
and its results every six months. If there is any loss of plants, the
institution must report it to the police.
Therefore,
in the context of Indonesian positive law, marijuana is strictly prohibited for
production, distribution, possession, and use, including for medical purposes.
Any attempt to change the legal status of marijuana requires a legislative
process and approval from the competent authorities.
Marijuana
or cannabis is an herbal medicine derived from the leaves, flowers, and buds of
the Cannabis sativa plant. In addition to having psychoactive substances that
can provide pleasurable experiences for users, marijuana also contains many
other beneficial compounds. As many as 66 chemical components in marijuana have
been identified as compounds with potential for use as medicine. In Indonesia,
there are groups that support the legalization of marijuana, one of which is
the Indonesian Ganja Circle (LGN). LGN is the largest organization in Indonesia
that focuses its efforts on the utilization of marijuana, arguing that
marijuana has potential benefits that can be optimized. However, the Indonesian
government enforces Law Number 35 of 2009 concerning Narcotics to protect the
public from the dangers of abuse and illicit trafficking of narcotics while
ensuring the availability of medicines for those in need. This law prohibits
the use of marijuana for non-medical purposes but allows the use of narcotics in
the medical field as medicine. Thus, there is a push to reevaluate regulations
related to marijuana to determine if its medical potential can be utilized
within strict legal boundaries
The
use of marijuana as medicine is considered urgent, especially considering that
most raw materials for medicines in Indonesia are imported and quite expensive.
Inang Winarso, the director
of the Sativa Nusantara Foundation, stated that 90% of medicines in Indonesia
are made from imported raw materials, making marijuana a more economical
alternative. Marijuana is also available in several regions of Indonesia, such
as Aceh, Papua, Kalimantan, and Garut. However, in a
legal context, the only way to utilize marijuana legally is through
legalization in the medical field. Over the past two decades, many countries
have started legalizing marijuana, both for industrial and medical uses.
However, in Indonesia, marijuana legalization remains a controversial topic.
Based on Law No. 35 of 2009 concerning Narcotics, Article 8, Class I narcotics,
including marijuana, are not allowed for use in healthcare services or medical
treatment. Therefore, despite the potential medical benefits of marijuana, its
use in Indonesia remains prohibited based on existing laws.
The
development of science and technology in the context of narcotic medicines,
especially for treatment and rehabilitation, includes their use for
educational, training, research, and development purposes. In addition, the use
of narcotic medicines can also be carried out by government agencies with
responsibilities and functions in the supervision, investigation, and
eradication of narcotics. The importance of education, training, and skills can
also be seen in the context of training narcotic detection dogs used by the
Indonesian National Police, Customs and Excise, the National Narcotics Agency,
and other agencies. The training aims to improve effectiveness in detecting and
eradicating the illegal trafficking of narcotics and to ensure that law enforcement
in the field of narcotics is conducted efficiently and accurately
With
marijuana as a medical tool, many people out there could recover from various
illnesses that only marijuana can treat. Marijuana, which contains compounds
such as THC (delta-9-tetrahydrocannabinol) and CBD (cannabidiol), has been used
in several countries as an alternative or adjunct treatment for various medical
conditions. Here are some conditions that, based on research and medical
experience, can be treated or alleviated with the use of marijuana:
1. Chronic Pain: Marijuana has been used
to reduce chronic pain in patients with conditions such as arthritis,
fibromyalgia, and neuropathic pain. The THC content in marijuana can provide
analgesic effects.
2. Epilepsy and Seizures: CBD, a
non-psychoactive compound in marijuana, has been proven effective in reducing
seizures in some forms of epilepsy, including Dravet syndrome and Lennox-Gastaut syndrome.
3. Nausea and Vomiting: Marijuana is
often used to reduce symptoms of nausea and vomiting caused by chemotherapy in
cancer patients. THC can help increase appetite and reduce nausea.
4. Multiple Sclerosis: Some studies
suggest that marijuana can help reduce muscle stiffness and spasms associated
with multiple sclerosis.
5. Anxiety and Sleep Disorders: Although
the effects of marijuana on mental health are still controversial, some
patients report that marijuana helps reduce anxiety and improve sleep quality.
However, it should be noted that the use of marijuana for mental health issues
should be done cautiously and under medical supervision.
6. Glaucoma: Marijuana has been used to
reduce intraocular pressure in glaucoma patients. However, there is controversy
about its long-term effectiveness.
7. Tourette Syndrome: Some studies
suggest that marijuana can help reduce tic symptoms in patients with Tourette
syndrome.
8. HIV-AIDS: With the presence of
marijuana, certain symptoms associated with HIV-AIDS and its treatment can be
reduced. However, marijuana is not a cure for HIV/AIDS.
Indonesia
could actually legalize marijuana for medical use through criminal law
formulation policies that revise the Narcotics Law. In the process of revising
Law No. 35 of 2009, many aspects related to the use of marijuana as a Schedule
I narcotic were deemed inappropriate. For example, the delegation of
responsibilities to Commission IX, which is related to public health
protection, does not explicitly guarantee protection for the medical use of
marijuana. Ideally, the use of Schedule I narcotics like marijuana for medical
purposes should have specific regulations governing its use and limitations as
a medicine. In the Criminal Code, only rehabilitation penalties are regulated
for users and addicts, but there are no detailed regulations regarding the legal
use and limitations of medicine. This lack of regulation encourages people to consume
marijuana for medical purposes illegally. Additionally, possessing small
amounts of marijuana for medical treatment can risk fines or imprisonment.
Legalizing marijuana as a medical treatment requires clear and comprehensive
regulations governing its use, limitations, and distribution for medical
purposes. Without clear regulations, individuals who need marijuana for medical
purposes may be trapped in illegal activities, face serious legal risks, and
lack adequate protection.
When
discussing legalization, the legal-political aspect cannot be ignored. Legal
politics is a series of concepts and principles that outline and form the basis
for planning and implementing actions by the government, especially in the
legal field. Thus, legal politics has a close relationship with the laws that
will apply in the future. In the context of legalization, clear legal and
health policies are needed. The three principles that need to be considered in
legal politics are legal certainty, justice, and utility. In the case of
legalizing marijuana for medical purposes, legal-political must consider these
three aspects. On one hand, there is a need to provide legal certainty and
justice for those who need marijuana for medical purposes. On the other hand,
there is also a need to maintain utility and avoid abuse.
Special
Criminal Code in Law No. 35 of 2009 concerning Narcotics regulates the use of
narcotics in the health field, as stipulated in Article 7. However, Article 8
prohibits the use of Schedule I narcotics for treatment; only Schedule II and
III narcotics are allowed for medical purposes. With this difference, a deep
understanding of legal politics is needed to determine the right direction in
revising or updating the law to create a balance between medical needs and
protecting society from drug abuse. The steps that need to be taken to address
this issue are
Amendment
of Law Number 35 of 2009 concerning Narcotics
Law
No. 35 of 2009 concerning Narcotics needs to be revised to allow the use of
marijuana (Cannabis genus) for medical purposes. One way to revise this law is
by removing marijuana from Schedule I and placing it in Schedule II or Schedule
III. By moving marijuana and all its parts, such as resin, seeds, fruit, and
other processed forms, to lower schedules, marijuana can be legally used for
medical purposes. This step is important considering the many studies showing
the potential medical benefits of marijuana. Marijuana has been used to treat
various conditions, such as chronic pain, chemotherapy-induced nausea,
epilepsy, and others. Therefore, providing well-regulated access for medical
use can help many patients in need. However, it should be noted that law
revisions must be done carefully and accompanied by clear regulations to
prevent abuse. The government needs to establish clear boundaries and a strong
monitoring system to ensure that marijuana is used responsibly and only for
legitimate medical purposes. Thus, law revisions can benefit society without
sacrificing legal certainty and public safety.
Reform
of Law Number 35 of 2009 concerning Narcotics
The
state needs to take bold steps to reform Law No. 35 of 2009 to address the
negative impact of banning the use of marijuana for medical purposes. One
approach that can be taken is by taking over the production and distribution of
narcotics and implementing market regulation policies. Thus, the state can
reduce the adverse effects on public health arising from the illegal drug
trade. If the state has control over the production, distribution, and sale of
marijuana for medical use, this can ensure better quality, quality, and
guaranteed prices. Moreover, it can reduce opportunities for illegal dealers to
operate because the state provides legal access for those who need marijuana
for medical purposes.
The
importance of the role of the Minister of Health
The
Minister of Health needs to strictly regulate the dosage and limitations of
marijuana use for medical purposes. It aims to ensure that the use of marijuana
as medicine can be done safely and only by those who truly need it for
treatment. This regulation should also include clear procedures for obtaining
medical marijuana, including requirements for an official letter from a doctor
stating the patient's medical need for marijuana use. With strict regulations
from the Minister of Health, the use of medical marijuana can be regulated in a
way that reduces the risk of abuse and ensures that patients who need marijuana
for treatment have legitimate access. Moreover, this regulation can also help
ensure that the dosage given is appropriate for medical needs and patient
conditions, as well as reduce the risk of side effects or overuse.
The
Role of BPOM
The
National Agency of Drug and Food Control (BPOM) needs to play a crucial role in
regulating oversight of the distribution, production, and sale of marijuana for
medical purposes. Strict and coordinated oversight will ensure that medical
marijuana is only available to patients who need it, in accordance with
doctor's prescriptions and applicable regulations.
Changing
the regulation of marijuana use as a means of treatment is one way to adjust
the law to the evolving needs of society. The use of marijuana as medicine can
have a significant impact on Indonesian society, especially because marijuana
has medical potential and can grow easily in Indonesia's tropical climate.
Moreover, marijuana from Indonesia, known for its best quality, is considered
Class A marijuana. Individuals who use marijuana for self-treatment or for
their family as part of efforts to obtain health should not be subject to
criminal sanctions. Conversely, if someone who tries to obtain the right to
health is subject to criminal penalties, this can be considered a violation of
human rights, as the state has deprived them of their right to obtain the
needed treatment. Therefore, it is important to revise laws regulating
narcotics to allow the use of marijuana for medical purposes with appropriate
regulations. This will provide an opportunity for those in need of treatment to
access marijuana legally without fear of criminal penalties. More flexible
regulations and a focus on public health can help reduce the stigma associated
with marijuana and ensure that the right to health is not violated.
CONCLUSION
The issue of marijuana legalization in
various countries is often confusing. There are several countries known to have
ties with marijuana but prohibit its use for personal purposes. On the other
hand, more and more countries are beginning to legalize marijuana for medical
purposes. The use of medical marijuana is often accompanied by negative stigma
due to concerns about addiction. However, many supporters argue that marijuana
has medical benefits, thus requiring legalization for medicinal purposes. By
legalizing marijuana for medical purposes, many benefits can be obtained, both
in the field of health and the economy. Marijuana is known as a remedy for
several types of diseases, but under Indonesian law, marijuana is categorized
as a Class I narcotic, meaning its use for medical purposes is prohibited. As a
result, the distribution and dissemination of marijuana for medical purposes
are not allowed because they contradict the Narcotics Law. Narcotics are
regulated under Law Number 35 of 2009.
Changing the regulation of marijuana
use as a means of treatment is one way to adjust the law to the evolving needs
of society. The use of marijuana as medicine can have a significant impact on
Indonesian society. Individuals who use marijuana for self-treatment or for
their family as part of efforts to obtain health should not be subject to
criminal sanctions. Conversely, if someone who tries to obtain the right to
health is subject to criminal penalties, this can be considered a violation of
human rights, as the state has deprived them of their right to obtain the
needed treatment. Therefore, it is important to revise laws regulating
narcotics to allow the use of marijuana for medical purposes with appropriate
regulations. It will provide an opportunity for those in need of treatment to
access marijuana legally without fear of criminal penalties. More flexible
regulations and a focus on public health can help reduce the stigma associated
with marijuana and ensure that the right to health is not violated.
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Copyright holder: Johan Budi Sapto Pribowo,
Azis Budianto, Lucky Ferdiles (2024) |
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First publication right: Asian Journal of Engineering, Social and Health
(AJESH) |
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