Constitutional Justice Saldi Isra reading out a dissent in the ruling hearing of the judicial review of Law No. 4 of 1984 on Communicable Disease Outbreaks and Law No. 6 of 2018 on Health Quarantine, Wednesday (25/11/2020) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The judicial review petition on the state’s responsibility regarding human resources and incentive for staff fighting disease outbreaks in Law No. 4 of 1984 on Communicable Disease Outbreaks and Law No. 6 of 2018 on Health Quarantine was rejected by the Constitutional Court (MK). The Decision No. 36/PUU-XVIII/2020 was read out by Chief Justice Anwar Usman alongside the other eight constitutional justices on Wednesday, November 25, 2020 in the plenary courtroom. The Indonesian Health Law Society (MHKI) and several doctors challenged Article 9 paragraph (1) of Law No. 4 of 1984 and Article 6 of Law No. 6 of 2018.
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The Petitioners had requested that the Court interpret the phrase “the availability of resources needed” in Article 6 of Law No. 6 of 2018 as “the availability of personal protective equipment for medical personnel.” In the legal considerations read out by Constitutional Justice Wahiduddin Adams, the Court stated that the request has been accommodated by Article 72 paragraph (3) of Law No. 6 of 2018 because personal protective equipment (PPE) is part of health equipment in the health quarantine supplies, not part of the health facilities that the Petitioners meant.
“Next, if the Petitioners’ petitum were granted regarding the interpretation of the phrase “the availability of resources needed” as the availability of PPE, incentive for medical personel, compensation for the family of medical personnel, and the resources on disease examination and/or the risk factor of public health, it would lead to legal uncertainty which is guarantee by Article 28D paragraph (1) of the 1945 Constitution due to redundancy with the provision in Article 71-78, especially Article 72 paragraph (3) of the a quo law,” Justice Wahiduddin said.
In addition, if the petitum were granted, it would cause loss in the wider public because it would hinder the effort to prevent and mitigate diseases and/or the risk factor of public health because the Government would no longer be obligated to provide health quarantine facilities such as hospitals, pharmaceutical supplies such as medicine, and other health paraphernalia. “While it is the state’s responsibility as mandated by Article 34 paragraph (3) of the 1945 Constitution,” he added.
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Irrelevant
Justice Wahid also said that the disproportionate supplies of PPE for all medical personnel, health personnel, and health facility employees during COVID-19 pandemic that the Petitioners argued about is their and anyone’s concern that the Government must pay attention to. “However, the issue is irrelevant to the assumption of the unconstitutionality of Article 6 of Law No. 6 of 2018. Therefore, the Petitioners’ argument on the unconstitutionality of Article 6 of Law No. 6 of 2018 is legally groundless,” he said.
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Mandatory Award
Three justices—Constitutional Justices Aswanto, Saldi Isra, and Suhartoyo—had a dissenting opinion on the legal considerations of the material judicial review of Article 9 paragraph (1) of Law No. 4 of 1984. They believe the Petitioners’ request that the word “may” in the norm be interpreted as “shall” to mean “Certain officers who carry out the outbreak prevention efforts as referred to in Article 5 paragraph (1) shall be given an award for the risks borne while carrying out their duties” is legally grounded.
Reading out the dissent, Justice Constitutional Justice Saldi Isra said that Article 9 paragraph (1) of Law No. 4 of 1984 as the petition’s object, which regulates special subjects in the prevention efforts, cannot be interpreted to apply for those providing health services in a general sense during a pandemic.
He added that the special subjects as the obligation of the state refers to the phrase “certain officers” who carry out the outbreak prevention efforts including epidemiological investigations; examination, treatment, care and isolation of patients, including quarantine measures; prevention and immunization; elimination of disease causes; handling of bodies due to the outbreak; outreach to the community; and other countermeasures as regulated by Article 5 paragraph (1) of Law No. 4 of 1984.
“This means the a quo phrase does not target all personnel, but only those directly involved in outbreak prevention. When the subjects of the norm are the special subjects directly involved in outbreak, the interpretation of Article 9 paragraph (1) of Law No. 4 of 1984 as something optional is a clear evidence of the weak commitment of the state in fulfilling the obligation mandated by Article 28D paragraph (1) and Article 34 paragraph (3) of the 1945 Constitution,” he explained. Interpreting such a policy as mandatory or discretionary with regard to health/medical personnel as high-risk occupations, Justice Saldi said, would be a disregard to humanity. Given such high risk, the state must see such a policy as imperative.
“This imperative nature is the consequence of the state’s responsibility in fulfilling its obligation to provide proper health services for citizens. Although the state has formulated various policies in implementing the discretion of Article 9 paragraph (1) of Law No. 4 of 1984 in facing the COVID-19 pandemic, it must be realized that the policies came from an optional norm, not an imperative one. It could be and is highly likely that an imperative interpretation of the a quo norm would allow certain workers who feel threatened by the impacts of the COVID-19 pandemic to work more comfortably because they would be more protected,” he explained.
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Outdated
Justice Saldi touched on the ratification of Law No. 4 of 1984 36 years ago on June 22, 1984 and said the law has been outdated in terms of the development of communicable disease outbreaks and the state’s responsibility to guarantee health services. The law doesn’t even mention the term “pandemic.” In addition, it hasn’t mentioned the state’s responsibility in guarantee health services intended by Article 28D paragraph (1) and Article 34 paragraph (3) of the 1945 Constitution. It also hasn’t realized the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Indonesia ratified on February 23, 2006, in that states must realize the right to health not only within existing resources but also ‘to the maximum of its available resources.’
“Based on the aforementioned considerations, the Petitioners’ request that the word “may” in the norm be declared constitutional as long as interpreted as “Certain officers who carry out the outbreak prevention efforts as referred to in Article 5 paragraph (1) shall be given an award for the risks borne while carrying out their duties” is legally grounded. Therefore, [in support of] a concrete form of the state’s responsibility as referred to in Article 28D paragraph (1) and Article 34 paragraph (3) of the 1945 Constitution, we believe that the Court should grant the a quo petition regarding Article 9 paragraph (1) of Law No. 4 of 1984,” Justice Saldi stressed.
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The Petitioner of case No. 36/PUU-XVIII/2020 challenged Article 9 paragraph (1) of the Communicable Disease Outbreak Law, which reads, "Certain officers who carry out the outbreak prevention efforts as referred to in Article 5 paragraph (1) may be given an award for the risks borne while carrying out their duties." They also requested a material judicial review of Article 6 of the Health Quarantine Law, which reads, "The Central and Regional Governments are responsible for the availability of resources needed in administering health quarantine."
The Petitioner stressed that the state is obligated to provide personal protective equipment (PPE) for health workers in charge of fighting COVID-19 as a fair legal protection and state responsibility to provide proper health facilities. The high transmission rate of COVID-19 requires the provision of health facilities for health workers, especially PPE, which is imperative for health workers in treating patients during the COVID-19 pandemic.
Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Tiara Agustina
Translator: Yuniar Widiastuti
Translation uploaded on 11/27/2020 18:14 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Thursday, November 26, 2020 | 09:14 WIB 290