Attorneys Muhammad Asrun and Ai Latifah and principal petitioners attending the preliminary hearing of the judicial review of the Law on Medical Practice, Thursday (4/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
The Constitutional Court held the preliminary hearing of the judicial review of Law Number 29 of 2004 on Medical Practice on Thursday (4/10) in the Panel Courtroom of the Constitutional Court. The petition was filed by 36 individual citizens consisting of lecturers, retired lecturers, and professors in medicine. The hearing was led by Deputy Chief Justice of the Constitutional Court Aswanto, and attended by Constitutional Justices Arief Hidayat and Manahan M.P. Sitompul.
In the hearing registered as No. 80/PUU-XVI/2018, the Petitioners, through Muhammad Asrun and Ai Latifah as legal counsels, said that Article 1 numbers 12 and 13 and Elucidation to Article 1, Article 29 paragraph (3) letter d, and Article 28 paragraph (1) of the Medical Practice Law had the potential to harm the constitutional rights of the Petitioners.
Article 1 number 12 of the Medical Practice Law reads, "Professional Organizations are the Indonesian Doctors Association for doctors and the Indonesian Dentist Association for dentists." According to the Petitioners, the definition of the phrase "Indonesian Doctors Association" is interpreted narrowly solely as the Executive Board of the Indonesian Doctors Association (PB-IDI) at the national level. Whereas, according to the Petitioners, within IDI there are several autonomous organizations, such as the Medical Ethics Honorary Council (MKEK), the Professional Services Development Council (MPPK), and the Indonesian Academy of Medicine (MKKI). They considered the definition of IDI in the a quo article had placed those organizations as subordinates of the PB-IDI, especially the MKKI. It has resulted in PB-IDI\'s authority intervening the academic/medical field. "In this case, the Petitioners argued that the interpretation of the \'Indonesian Doctors Association\' in the article was still unclear," Ai explained.
Furthermore, according to the Petitioners, the provisions of Article 28 paragraph (1) of the Medical Practice Law that reads, "Every doctor or dentist who performs medical practice must follow continuous medical education and training organized by professional organizations in order to absorb the development of medical/dentistry sciences and technology," only recognize the terms "doctor" and "specialists." The term "doctor" refers to a doctor who graduated from the medical faculty, who is commonly referred to as a general physician or doctor, while doctors who specialize in medical sciences are called "specialists." However, in the last 10 years, doctor re-certification process has not been involving medical education institutions and the Government. On the other hand, the specialist collegiate involves medical education institutions as stipulated in the 2016 MKKI Compendium. Thus, doctor re-certification process is completely without supervision by the Government and the Indonesian Medical Council (KKI) as regulator because IDI believes that "continuous medical education and training organized by professional organizations" is solely the internal affair of IDI.
In this case, IDI also considers itself as a self-organizing body that has the right to regulate itself without considering medical professional services and the interests of the community that require regulation by the Government and the state. Conversely, according to the Petitioners, the Constitutional Court through Decision No. 10/PUU-XV/2017 dated April 26, 2018 in its consideration requested IDI\'s attention so that re-certification process be carried out with transparency, accountability, and simplicity, and receive supervision by the Government and KKI as regulator.
"So, the Petitioners consider their constitutional rights impaired because there is doubt over the implementation of sustainable education and development programs in terms of the transparency and accountability of the processes, and the lack of adequate supervision by the Government and/or KKI," Ai explained.
Article 1 number 13 of the Medical Practice Law reads, "The Indonesian Medical Council and the Indonesian Dentistry Council are bodies formed by the profession for each branch of the disciplines tasked with supervising these branches of discipline," is related to the clause "Certificates of competence are issued by the relevant councils," as stated in the Elucidation to Article 29 paragraph (3) of the Medical Practice Law. According to the Petitioners, the Elucidation to Article 1 of the Medical Practice Law does not provide any explanation of the provisions of Article 1 number 13.
There is legal uncertainty in both of these provisions, especially concerning the definition of collegiate council and issuance of certificates of competence by those councils. The definition of collegiate council in the a quo article is interpreted to include doctors collegiate councils. Therefore, there is KKI within IDI in addition to a number of specialist medical collegiate councils, while the a quo law clearly states that collegiate councils are intended for medical disciplines.
"The a quo law does not mention the necessity of forming a separate medical collegiate council for doctors because the medical science is the body of medicine itself and is not a branch of science," Ai explained.
If the a quo articles are not corrected, PB-IDI will seize control of the medical field from upstream to downstream due to the lack of checks and balances mechanism among institutions within IDI, as practiced by IDI seniors in the 2000s. "The conditions that lead to this monopoly will create an unhealthy situation and open opportunities for abuse of authority. It is not appropriate for the private sector to have a monopoly. If necessary, only the state or state institutions can obtain monopoly rights aimed at the benefits of the people," Ai explained.
For this reason, the Petitioners requested that the Constitutional Court justices declare the articles being reviewed conditionally constitutional.
Interests or Position
Responding to the a quo case, Constitutional Justice Arief Hidayat said that it was related to the legal standing of the Petitioners, who are academics in the medical field. He observed that in the a quo case, the Petitioners did have legal interests, but in the judicial review the main thing needed was the legal standing of the Petitioners. Therefore, he added, [it would be better] if the legal standing also included Petitioners who were still in training. "[These professors] do indeed have legal interests, but their legal standing is unclear. So, it is necessary to add petitioners who are [medical students]," Justice Arief suggested.
Constitutional Justice Manahan M.P. Sitompul also offered the same advice related to the legal standing. According to him, Petitioner I introduced himself one of the MKKI advisers. However, the legal standing must be related to the norms being reviewed, especially in terms of losses resulting from the implementation of the a quo norms. "However, Petitioners II-XXXVI must further elaborate their legal standing so that [there will be a connection] that describes the violation of their constitutional rights," he explained.
Medical Advances
Meanwhile, Deputy Chief Justice of the Constitutional Court Aswanto stated that in the a quo case he saw the medical advances that was not in accordance with the expectations of the Petitioners, who are academics, doctors, professors, and the like, who then declared constitutional losses. "The Petitioners reconstruct their concerns so that they are in accordance with the mandate of the 1945 Constitution where specific losses occurred. If [you] cannot convince the Court, we cannot move onto the subject matter," he suggested.
Before closing the session, Justice Aswanto stated that the Petitioners could submit the revised petition no later than Wednesday, October 17, 2018 at 10.00 a.m. to the Registrar\'s Office of the Constitutional Court. (Sri Pujianti/LA/Yuniar Widiastuti)
Thursday, October 04, 2018 | 16:01 WIB 153