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Petitioner\'s attorney Muhammad Sholeh delivering the main points of the petition for the judicial review of the BPJS Law, Tuesday (22/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The Constitutional Court (MK) held the preliminary judicial review hearing of Law No. 24 of 2011 on the Social Security Agency (BPJS Law), Tuesday (22/1/2019). The petition No. 7/PUU-XVII/2019 was filed by housewife Nur Ana Apfianti, who was accompanied by legal counsels Muhammad Sholeh and colleague.

Muhammad Sholeh explained that the Petitioner is a resident of Surabaya, East Java Province, registered as a Healthcare BPJS participant since 2018 by paying a premium of Rp51,000.00 (fifty one thousand rupiahs) with membership number 0001734248891. Prior to registering Healthcare BPJS, the Petitioner had been a Prudential insurance participant with Policy Number 10075516 since September 22, 2014. The a quo insurance plus savings covered for the Petitioner\'s healthcare. 

The Petitioner feels that her constitutional rights have been impaired in terms of legal protection because she cannot make her own choice in joining the appropriate health insurance. With the enactment of the a quo provision, the Petitioner\'s constitutional right to obtain the best insurance is neglected. In addition, if the Petitioner does not register the Healthcare BPJS, she will be sanction with written warning, a fine, or restriction to certain public services. 

"BPJS, which was formed through Law Number 24 of 2011 and Law Number 40 of 2004, which regulate the national social security system, is divided into two—Healthcare BPJS and Employment BPJS," said Muhammad Sholeh to the panel of justices led by Constitutional Justice Suhartoyo. 

The Petitioner reviews Article 14 of the BPJS Law that states that every person including foreigners who has worked for a minimum of six months in Indonesia must be a participant in the social security program. The Petitioner thinks that the word \'mandatory\' in the a quo article means everyone, both children and adults, the poor and the rich, are all obliged to take part in the Healthcare and Social Security Agency (BPJS) healthcare program. 

However, according to the Petitioner, the mechanism of Healthcare BPJS services is not the same as that of private insurance. Healthcare BPJS applies tiered referrals and medicine limitations. Meanwhile, private insurance, which the Petitioner uses, participants are allowed to choose treatment in any hospital that cooperates with the private insurance and the medicine is fully covered by the insurance company. 

The Petitioner could not understand the lawmakers\' reason for the requiring all citizens to join the Healthcare BPJS program. If the purpose is to help poor people so that their health services are covered, only the poor shall be obliged to participate, because the state provides assistance through contributions to the poor in BPJS as stated in Article 19 paragraph (4) of the BPJS Law. However, according to the Petitioner, the state should not need to force citizens who can afford credible insurance and would like less restriction when making claims to join Healthcare BPJS. 

In addition, according to the Petitioner, the provision of health facilities as stated in Article 34 paragraph (3) of the 1945 Constitution must be interpreted as the obligation of the state, the citizens. Lawmakers shall not discriminate against the obligations of the state and of the citizens. Healthcare is the state\'s responsibility, while paying taxes is that of the citizens. Furthermore, as a result of the citizens\' obligation to pay taxes, the state manages the financial results of tax payments for the development of healthcare. The Petitioner considers it strange and a double obligation if citizens are obliged to pay taxes and required to pay healthcare contributions. 

Economic Loss 

Responding to the arguments presented by the Petitioner, Constitutional Justice I Dewa Gede Palguna observed that the losses suffered by the Petitioners constituted economic loss. "But does the economic loss constitute constitutional impairment of the Petitioner? Now that\'s exactly what you have to elaborate on. With the existence of the article you are reviewing, which constitutional rights [of the Petitioner were harmed]? That is not seen in the petition. You only explain the concrete events," he said. 

Meanwhile, Constitutional Justice Manahan M.P. Sitompul highlighted the article reviewed by the Petitioner in that she did not agree with the obligation of working foreigners to be registered in the Healthcare BPJS that was supposed to cater for Indonesian citizens. "So to explain the issue on foreigners, the Petitioner can further elaborate on her arguments and [add] more legal theories," he said. 

On the Petitioner\'s request that the article being reviewed be declared not have binding legal force, Justice Manahan advised the Petitioner to look for other alternatives so that the Article 14 of Law No. 24/2011 would not be revoked because it is a basic norm and does not need to be revoked. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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