Provision on MKDKI’s Examination Challenged

Legal counsel Viktor Santoso Tandiasa conveying the subject matter at the preliminary hearing of Law No. 29 of 2004 on Medical Practice, Wednesday (3/1/2023). Photo by MKRI/Ifa.

Wednesday, March 1, 2023 | 15:50 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing for the judicial review of Law No. 29 of 2004 on Medical Practice on Wednesday, March 1, 2023 in the panel courtroom. The petition No. 21/PUU-XXI/2023 was filed by surgeons Gede Eka Rusdi Antara and Made Adhi Keswara.

At the hearing chaired by Constitutional Justice Suhartoyo, legal counsel Viktor Santoso Tandiasa said the Petitioners put emphasis on their legal standing and their argument that the petition is not ne bis in idem. “The article petitioned is Article 69 paragraph (1) of the Medical Practice Law, which stipulates that the decision of the Indonesian Medical Disciplinary Board (MKDKI) shall be binding for doctors, dentists, and the Indonesian Medical Council. The phrase ‘shall be binding for dentists and the Indonesian Medical Council’ is conditionally unconstitutional against Article 1 paragraph (3), Article 28D paragraph (1), Article 28G of the 1945 Constitution,” he said.

Tandiasa said that Petitioner I had been reported by the MKDKI even though he and Petitioner II had been doing surgeries accountably. “In undergoing the MKDKI’s examination, Petitioners I and II had experienced a process that was not transparent and unfair, during which their constitutional rights were often violated. The MKDKI formed a disciplinary council (MPD), which consists of legal scholars, when its function was to examine disciplinary violations by doctors during practice,” he explained.

He also said that the Petitioners had been counseled but the counsel could not provide any defense. “In addition, when examining Petitioners I and II, the MPD often acted as an investigator and a prosecutor. Even, before a decision was made, they had given the Petitioners the same questions over and over again so that they would admit medical malpractice,” he said.

Tandiasa added that the Petitioners’ experts and witnesses were examined by the MPD without the Petitioners’ in attendance, so they did not know what was asked. He asserted that the Petitioners requested that the Medical Practice Law be declared in violation of Article 1 paragraph (3) and Article 28 paragraph (1) if the phrase “shall be binding for doctors, dentists, and the Indonesian Medical Council” is not interpreted as a recommendation and cannot be used as a basis to file a civil or criminal lawsuit.

He also said that the article had led to legal uncertainty since it positions the Indonesian Medical Council (KKI) under the MKDKI because the MKDKI’s decisions directly binds the KKI when its decisions on punishments shall be recommendations according to Article 69 paragraph (3). Therefore, the Petitioners requested that the a quo article be declared unconstitutional.

Justices’ Advice

In response, Constitutional Justice Wahiduddin Adams asserted that the Petitioners’ petition was closely related to case No. 119/PUU-XX/2022. “This is because the Petitioners for this case are the petitioners for case No. 119/PUU-XX/2022, so is the legal counsel. Therefore, the focus is whether [the case] is ne bis in idem be elaborated. In addition, the Petitioners’ argument on pages 15-17 are separate from the argument on the subject matter,” he said.

He also argued that as the petition was closely related to case No. 119/PUU-XX/2022, it seemed that the Petitioners were asking for the Court’s affirmation on whether the MKDKI’s decisions were binding or recommendations.

Meanwhile, Constitutional Justice M. Guntur Hamzah recommended that the Petitioners keep the petition clear and not obscure. “Why [should you avoid] obscurity? Because in the petitum, you did not include all the explanation that you put in the posita. You merge recommendation and binding, so you inserted the phrase recommendation in Article 69 paragraph (1),” he said.

Before concluding the session, Constitutional Justice Suhartoyo informed the Petitioners that the revised petition must be received by the Court’s Registrar’s Office by Tuesday, March 14, 2023 at 13:30 WIB.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 3/6/2023 09:53 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

Wednesday, March 01, 2023 | 15:50 WIB 72