MEDICAL CANNABIS IN INDONESIA: CONSTITUTIONAL RESTRAINT, MAQĀṢID AL-SHARĪʿA, AND A RIGHTS-COMPATIBLE REGULATORY PATHWAY

Abstract

Indonesia’s categorical exclusion of Schedule I narcotics from health services has made medical cannabis a test case for the relationship among scientific uncertainty, constitutional health rights, international drug control, and Islamic legal reasoning. This article asks whether the existing prohibition remains normatively defensible and, if reform is justified, what form it should take. Using doctrinal, comparative, and maqāṣid-based analysis, it examines Law No. 35 of 2009, the 1961 Single Convention, Constitutional Court Decisions No. 106/PUU-XVIII/2020 and No. 13/PUU-XXII/2024, selected clinical evidence, and regulatory developments in Germany and Thailand. The article makes three claims. First, legal analysis must distinguish the cannabis plant, intoxicating tetrahydrocannabinol, non-intoxicating cannabidiol, and standardized cannabinoid medicines; therapeutic evidence is indication- and product-specific, not a warrant for unrestricted legalization. Second, the Constitutional Court’s restraint is institutionally understandable, but its repeated demand for Indonesian research creates a governance obligation that cannot be satisfied by indefinite executive inaction. Third, Islamic doctrines of necessity, proportionality, harm prevention, and maqāṣid do not support recreational use, yet can justify tightly supervised therapeutic access where benefit, dosage, and lack of adequate alternatives are clinically established. The article therefore proposes a staged regulatory pathway: research authorization, product-specific assessment, specialist prescribing, pharmacovigilance, traceability, and periodic review. This approach protects both life and intellect without collapsing medical access into commercial legalization.