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Two experts presented by the Applicant: Achmad Sodiki as legal expert and Agus Suman as development-economist, and one witness Lely Mustika during stating their testimony on judicial review on Act of Social Security Providers (BPJS Act), on Tuesday February 24 at Plenary Room, the Constitutional Court Building  

 

The Applicants pledged judicial review on the provision of mandatory Healthcare and Social Security Agency (Badan Penyelenggara Jaminan Sosial—BPJS) registration were presented two experts on further hearing session Case No. 138/PUU-XIII/2014 held on Tuesday February 24 at Plenary Room, the Constitutional Court (Mahkamah Konstitusi—MK). Six Applicants consists of two outsourcing companies, two insurance service companies, and two workers are presents Achmad Sodiki as legal expert and Agus Suman as development-economist..

Achmad Sodiki, who once been Constitutional Judge (Hakim Konstitusi) delivers his expertise related to the provision’s constitutionality on Article 15 (1); Article 17 (1), (2) Letter c, (4); Article 19 (1) & (2), and also Article 55 Act of BPJS filed by the Applicants. During the session opening, Sodiki said that social security issue from the 1945 Constitution perspective was cannot be separated with national economics issue. As known on Article 33 of the 1945 Constitution, the State has powerful role particularly on authorizing important sectors of production and people needs.

However, Sodiki said that it does not mean the private sector has no role on the effort of supporting welfare manifestation for the State. It is because the Government still created open spaces for private sectors. The role of private sectors is importantly needed to fill some areas that cannot be fully filled by the Government, such as in educational area and healthcare.

However, the Government policies are often detrimental to the private sectors’ interests or otherwise, favor others. Competition often occurred between internal private sectors or the private against the State, represented by state-owned enterprises (Badan Usaha Milik Negara –BUMN) and provincial administration-owned enterprises (Badan Usaha Milik Daerah –BUMD) or other legal institutions that engaged in business sector. According to Sodiki, the State once made a mistake in dealing unfair policy that caused detriment to other parties, for example tax exemption policy for Timor cars. Still according to Sodiki, the similar thing is happened recently as experienced by the Applicants who obliged to participate in BPJS membership.

Sodiki firmly stated that the mandatory on BPJS registering was unfair and contradicted with the Constitution. One of the reasons is because the policy is discriminative. “Social insurances area is open area for the State and private; both are able to organize it. Therefore, the policy that obliged the employers registers their social security and their employees’ to BPJS is a discriminative policy, “said him.

Moreover, Sodiki stated that the policy was detrimental to the Applicants who impossibly getting new costumers or lost their previous costumers because they shifted to be BPJS member. The Government shall only oblige the employers, employees, and non-worker people to participate in social insurance programs. “Whether they choose BPJS or other choices instead of BPJS, it is up to the people concerned,” Sodiki advised in front of plenary constitutional judge who led by the Chief Justice, Arief Hidayat.

The Policy Harms Legal Certainty .

Besides of being discriminative, the policy on UU BPJS also harmed equal legal certainty, according to Sodiki. It because one of the traits on good Act is instead of guarantees legal certainty, it also able to guarantee its predictability. In this case, the Applicants had calculated their business well and comprehensively by adjusting with the prevailing regulations. But the policy on mandatory BPJS regulation has made their calculations missed. According to Sodiki, if the Applicant—as the provider of social insurances— knew that this policy—such as Articles a quo — could harmed them, they won’t established the business on social insurances.  

Meanwhile Agus Suman as a development economist said the provisions on mandatory BPJS registration in the implementation had troubled and confused the poor. It is seen on the registration process and the regulation, such as BPJS card is usable in community health centers (Pusat Kesehatan Masyarakat –Puskesmas) and hospitals only in seven days after registration and payment installation. Another confusion can be seen from the obligation for poor people to open bank account in order to pay monthly payments.

Such provisions, apart on confusing people –according to Suman– it is also ignored the emergency conditions due to prioritize administrative order. In fact, it is obviously noted on Paragraph 4 of the Preamble of the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945) that the State shall protect the entire of lands where the blood was spilled (tanah tumpah darah bangsa). People\'s right of healthcare, according to Suman, is eliminated as a result of the provisions on the BPJS Kesehatan applicants that obliged to register the entire family attached, in accordance with the family card (kartu keluarga) list. "The implementation of these two provisions has eliminated people\'s healthcare rights, as well as a real form of an arrogant operator who indirectly exclude the mandate noted on Paragraph 4 of the Preamble of the 1945 Constitution,” said Suman. (Yusti Nurul Agustin / Prasetyo Adi N)

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