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Preliminary hearing of the judicial review of the Law on Regional Government and the Law on Hospital, Wednesday (30/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court (MK) held the preliminary judicial review hearing of Law No. 23 of 2014 on the Regional Government and Law No. 44 of 2009 on Hospitals on Wednesday (30/1/2019). The Petitioner questioned the multiple interpretations of the status of regional public service agency (BLUD) in relation to the administration of the state or regional general hospital.

Retired civil servant (PNS) Rachmadi Sularsono is registered as Petitioner of case No. 12/PUU-XVII/2019. He requested the judicial review of Article 209 paragraphs (1) and (2) and the appendix of the Regional Government Law as well as Article 7 paragraph (3) of the Hospital Law. He had retired not on his own request, and felt that his constitutional rights were violated because he did not obtain legal protection against the multiple interpretations of the a quo law.

“My [retirement] status is being processed legally at the state administrative court (PTUN) on disciplinary action for minor offense. However, in the cassation court I was given a disciplinary for a major offense [in the form of] self-requested dishonorable discharge,” he said through a video conference.

The Petitioner then took a legal action in the form of administrative appeal, but had not received a verdict. The Petitioner argued that his constitutional loss was due to contradiction between Article 209 paragraphs (1) and (2) of the Regional Government Law and Article 7 paragraph (3) of the Hospital Law. “Article 209 paragraphs (1) and (2) of Law No. 23 of 2014 does not include any elaboration on the institutions in the health sector, special institutions, or regional technical agencies within the structure of regional apparatus. The appendices of the laws also do not elaborate on the duties and functions of state-owned or region-owned hospitals,” he affirmed in case No. 12/PUU-XVII/2019.

In accordance with the provisions of the Hospital Law, hospitals established by the State or Regional Government may be in the form of a Health Service Technical Implementation Unit if they are type C and D. The regional Technical Agency that must conduct its financial management is the regional public service agency (BLUD) and is a Regional Technical Agency or special agency in the health sector. 

The Petitioner explained further that there are two types of regional public service agency--the Technical Implementation Unit BLUD headed by the head of the Health Office and the BLUD headed by the hospital director. The head of the community health center (Puskesmas) or the head of the hospital as the Technical Implementation Unit is responsible to the head of the Health Office, who is responsible to the regional head through the regional secretary. 

Therefore, in the petitum, the Petitioner requested that the Court declare Article 209 paragraphs (1) and (2) and the appendix of the Regional Government Law as well as Article 7 paragraph (3) of the Hospital Law contrary to Article  28D paragraph (1) of the 1945 Constitution and not legally binding.

Legal Standing 

Responding to the petition, Constitutional Justice I Dewa Gede Palguna questioned the Petitioner\\'s legal standing that he considered unclear. "If this is not clear, the Court will not examine the subject of the petition," he said. 

In this part, Justice Palguna said, the Petitioner must elaborate on the constitutional loss that he had suffered because of the articles. It must be clear and specific, for example, showing causal relationship between the loss of the Petitioner and the enactment of the articles being reviewed. He also considered the petition had not elaborated on the reasons for the Constitutional Court to grant the Petitioner\\'s petition. "After this is complete, the Petitioner can move on to the main reason for subject of the petition. In this section, the Petitioner must prove why the laws are considered contrary to the Constitution," he stressed. 

In line with Justice Palguna, Constitutional Justice M.P. Manahan Sitompul also criticized the legal standing. He could not observe clearly the constitutional loss of the Petitioner due to the articles being tested. "[I have not seen] clearly which norms are to be reviewed. This needs fundamental improvement," he said firmly. He said that the Petitioner had merely explained a concrete case. 

Justice Manahan also criticized the format of the petition, such as the order of article and paragraph of the law. “This needs a lot of improvement. I suggest that you ask for help from legal experts that have often dealt with petitions in the Constitutional Court. You can also request help from legal aid at the Brawijaya University [near] where you live,” he explained. Arif Satriantoro/LA/Yuniar Widiastuti)

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