Principal applicant Misran (Assistant Head of Puskesmas Kuala Samboja of East Kalimantan

Doctors, dentists, midwives, and nurses can now perform their duties in an emergency that threatens the safety of patients' lives and the need for immediate medical treatment to save patients without fear of criminal sanctions. It is valid after the Constitutional Court (MK) decided Section 108 subsection (1) of Law 36/2009 on Health is conditionally unconstitutional on Monday (27/6), at the Plenary Court Room. Decision Number 12/PUU-VIII/2010 was read by the Chairman of the Constitutional Court, Moh. Mahfud MD, assisted by eight judges in the presence of the Petitioners, namely the nine applicant who is a health worker from East Kalimantan Province.

"The Court grants the petition partly. Article 108 paragraph (1) of Law Number 36 Year 2009 on Health (State Gazette of the Republic of Indonesia Year 2009 Number 144, Republic of Indonesia Number 5063) as long as the sentence, '...should be done by health workers who have the expertise and authority under the legislation "contrary to the 1945 Constitution to the extent not understood that power is the power of pharmacy health care, and in the absence of pharmacy personnel, certain health personnel can perform a limited pharmacy practice, among others, physicians and / or dentists, midwives, and nurses who perform their duties in an emergency that threatens the safety of life and needed immediate medical treatment to save patients, " Mahfud explained read the verdict.

In consideration of the law, Judge of the Constitutional Court's Hamdan Zoelva explain pengkaidahan argues that in perspective, the main provisions in Article 108 paragraph (1) of Law 36/2009 which in preskripsinya requires the creation and management of drugs and traditional medicines made by the Pharmacy Manpower whose expertise and authority are not can be considered to be contrary to any constitutional provision in the 1945 Constitution because these provisions implement the principle of a person seated on the position and function in accordance with the competence and professionalism (the right man on the right place).

"It thus is one of the implementation of the principle of justice. Conversely, a person seated on the position and functions that are not in accordance with the competence and professionalism, especially in pharmacy practice contain very high risk, then the impact would not only harm the health, even it can also result in death. Based on these considerations the Court believes that along the principal provisions of Article 108 paragraph (1) of Law 36/2009 is constitutional or not specifically contrary to Article 27 paragraph (1) and Article 28D Paragraphs (1) of the 1945 Constitution, "he explained.

Regarding the explanation of Article 108 paragraph (1) of Law 36/2009 in which there is provision for exemption from provisions contained in the article, the light of Hamdan, the Court argued that the placement of the provision is an exception in the Explanation of improper placement, because these provisions are also included norms category, rather than merely describe. Hamdan explained moreover norms contained in the explanation have been found to have implications for criminal sanctions against violators, although for these sanctions provisions contained in other chapters.

"The norm should be placed in the article. The Court also argues, in addition to improper placement of the norm, the exception provision in the field, as argued by the Petitioner, the circumstances causing a dilemma. Because, on the one hand health workers with very limited authority must save the patient in an emergency, while on the other side to deliver drugs or other medical measures he was overshadowed by the fear of penalty if he did. The latter has even been experienced by the applicant. Meanwhile, any legislation created by the state is for man, for the life and welfare. The rule is very limited exceptions, according to the Court, did not provide protection to patients in an emergency, nor provide protection to health workers. Thus, the Court can justify the Petitioners' argument that, "said Hamdan. (Lulu Anjarsari / mh/Yazid.tr)