House Commission III member Supriansa testifying at the judicial review hearing of Law No. 29 of 2004 on Medical Practice, Tuesday (5/16/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held another judicial review hearing of Law No. 29 of 2004 on Medical Practice on Tuesday, May 16, 2023 in the plenary courtroom. The petition No. 21/PUU-XXI/2023 was filed by surgeons Gede Eka Rusdi Antara, Made Adhi Keswara, and I Gede Sutawan.
At this hearing, which had been scheduled to present the House of Representatives (DPR), House Commission member Supriansa relayed the legislatures’ view of the Petitioners’ argument that Article 69 paragraph (1) of the Medical Practice Law, especially the phrase ‘shall be binding for dentists and the Indonesian Medical Council,’ is conditionally against Article 1 paragraph (3), Article 28D paragraph (1), and Article 28G of the 1945 Constitution. Based on the subject matter, the House believes that Petitioners I and II are the petitioners in case No. 119/PUU-XX/2022, making the petition ne bis in idem or cannot be re-filed.
Supriansa also added that the Indonesian Medical Disciplinary Board (MKDKI) is an institution that serves to determine whether there is any malpractice by doctors and dentists and impose punishments. In addition, it is an autonomous, independent institution, thus it can prevent intervention by other institutions.
In essence, he added, the MKDKI can accommodate the interests of various parties, especially give reported doctors the opportunity to prove whether they have violated the code of ethics. The disadvantaged parties also have the opportunity to make a report. Such a process will create fair legal certainty.
“Meanwhile, the MKDKI and [the Indonesian Medical Council (KKI)] also have independence in performing their duties. So, the MKDKI’s decisions are also binding and have logical implications on doctors, dentists, and the KKI. Such binding nature does not mean that the KKI is under the MKDKI, because such an arrangement was set up by the House to maintain the two institutions’ independence. Such an arrangement gives the KKI standing to implement the MKDKI’s decisions through its decisions. The revocation of the Petitioners’ [doctor’s registration number (STR)] was done based on the KKI’s decisions, so it cannot be influenced by other institutions,” Supriansa said before Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other seven constitutional justices.
In response, Constitutional Justice Suhartoyo asked that the House clarify the Petitioners’ cases, since they received the MKDKI’s decisions but the KKI issued a follow-up decision over the MKDKI’s decisions.
“There is potential that the MKDKI’s decisions are followed up by the KKI with other decisions. This means there is still discretion that the Petitioners refer to to challenge Article 69 paragraph (1) of the Medical Practice Law. There could be the opportunity to defend themselves, to challenge [the decisions], etc. Although [you] mentioned it earlier, but it seems that what the Petitioners want is different from what the existing regulation [stipulates],” he said.
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At the preliminary hearing on Wednesday, March 1, the Petitioners asserted they put emphasis on their legal standing and their argument that the petition was not ne bis in idem. The article petitioned is Article 69 paragraph (1) of the Medical Practice Law, especially the phrase ‘shall be binding for dentists and the Indonesian Medical Council,’ which the Petitioners believe is against Article 1 paragraph (3), Article 28D paragraph (1), Article 28G of the 1945 Constitution.
Petitioner I was reported by the MKDKI, and in undergoing the MKDKI’s examination, Petitioners I and II 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. The Petitioners had been counseled but the counsel could not provide any defense.
The Petitioners’ experts and witnesses were examined by the MPD without the Petitioners in attendance, so they did not know what was asked. Therefore, 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. They also asserted 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.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
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.
Tuesday, May 16, 2023 | 15:27 WIB 235