Kamis, 22 September 2011

Expert Applicant: Ambiguity of Act on Narcotics

Act 35/2009 on Narcotics contains the definition of ambiguous regarding drug abuse. It was stated by Asmin Fransisca when Petitioner was asked as expert in the plenary judicial Narcotics Law (Case Number 48/PUU-IX/2011) Thursday (09/22/2011) at the plenary chamber of the Constitutional Court.
Lecturer Faculty of Law, Atma Jaya and Indonesian Coordinating Coalition for Drug Policy Reform (ICDPR) This article mentions the three definitions of matter in which he confused the Narcotics Act, namely the definition of Article 1, item 13, Article 1 number 15, and the Explanation of Article 54.
"The confusion occurs in Article 1 number 13 and 15 in this Act may be abusers of narcotic addicts and drug users with a variety of factors, potentially very large to be abusers as well. Though these two definitions have different consequences, namely the first is the rehabilitation, while the other is the definition of punishment in prison, "explained Frances.
This confusion, Frances continued to complicate the practice of law enforcement, particularly police and prosecutors. Ambiguity of this definition makes legal certainty for addicts and abusers is not guaranteed, when the law enforcers to implement a single criminal prosecution article, namely Article 112 which explains about the ownership, control of narcotics without rights or against the law.

Narcotics Act material, according to Frances was quite confusing. On one side of the abusers and addicts have a right to health and social services through the rehabilitation process which will be determined by a judge later. However, on the other hand, they are potentially huge for the convicted and lose the right to rehabilitation services.
Whereas in the Narcotics Act Article 127 Article 127 expressly provides that judges shall take into account the provision of rehabilitation in accordance with Article 54, Article 55 and Article 103 for abusers. "This means, the nuances of the right to health, health services, adequate attention through this legislation," said Frances.
In contrast to Article 112 of the Narcotics Act governing people without rights and unlawfully possess, store, and control the supply of narcotics, which closes the possibility of our users or addicts in which a breach of Article 112 for direct access to rehabilitation services program. But in practice, from various literature studies have been conducted, many law enforcement agencies use these two chapters in the file examination simultaneously. Article 112 is also a chapter that is widely used for anyone, that is for addicts, abusers, or dealers, as well as narcotics producer.
This has led to confusion in law enforcement and creates a position between addicts and drug users, victims of drug abuse, with manufacturers and distributor are the same. "The action and effect the crime is very different. In Article 112, there are criminal penalties and fines are high enough that very expensive. Quite strange if criminal sanctions are high and very expensive fines imposed on addicts or abusers, "said Frances postulated.

The weakening of the Court authority
On the same occasion, the Court Case Number 49/PUU-IX/2011 also hear about the judicial Law 8 / 2011 on Amendments to Law 24/2003 on the Constitutional Court (Law Court). Former Constitutional Court Justice, who was asked as an applicant, wants a strengthening of the Constitutional Court Law. However, the opposite is true, that is weakening. It is strengthening it in order to allow checks and balances. "Changes made should be the actual empowerment of state institutions to perform their functions within the mechanism of checks and balances," said Maruarar Siahaan as usually called Maru.
Furthermore Maru said, the authority of state institutions provided for in the 1945 and then made arrangements so that further weakened the norm of law, is a separate constitutional issue. "How could a delegated authority from the constitution formulated re-formulated so it does not fit with the spirit of the constitution itself," the proposition Maru.
To note, on (05/08/2011) and the Court held a preliminary hearing for the two cases mentioned above. Mohammed Zainal Arifin, Petitioner’s attorney argues case Number 48/PUU-IX/2011 Article 45A and Article 57 paragraph (2) letter a and c of the Constitutional Court ruling to close the space of ultra petita (giving the decision beyond what the Petitioners filed). The provision is detrimental to Petitioner’s constitutional rights, because the likely effect on the Constitutional Court did not grant the application for judicial review filed by the Petitioner Narcotics Act. (Nur Rosihin Ana / mh/Yazid.tr)

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