A material judicial review hearing of Law No. 29 of 2004 on Medical Practice to hear the Petitioners’ witness and experts, Tuesday (6/13/2023). Photo by Humas MK/Ifa.

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JAKARTA (MKRI) — Although the Indonesian Medical Council (KKI) is a special organ in the medical profession, since it was formed and is regulated under the law, it has become a state institution. As a consequence, its duties and functions must comply with public law.

This statement was made by Udayana University’s administrative law lecturer Jimmy Z. Usfunan at a judicial review hearing of Law No. 29 of 2004 on Medical Practice on Tuesday, June 13, 2023. The fifth hearing for case No. 21/PUU-XXI/2023 presented the testimonies of two experts and one witness for surgeons Gede Eka Rusdi Antara, Made Adhi Keswara, and I Gede Sutawan (Petitioners I-III).

Jimmy further explained that with the Indonesian Medical Disciplinary Board (MKDKI) being part of the KKI, the two performs a delegation of authority in enforcing discipline among doctors and dentists, which is regulated in Article 67 of the Medical Law.

In performing its duties, the KKI has the authority to issue and revoke doctor’s registration number (STR). On that note, Jimmy added, it should be able to review disciplinary violations committed by doctors and dentists, which may result in punishment. As such, although both the MKDKI and the KKI are not judicial institutions, since it out punishment, these administrative institutions have been authorized to function similarly to judicial institutions, and so they should also perform universal system applying in the judiciary.

One of the universal application of the judiciary is public, independent hearings. This, Jimmy argued, is important to prevent arbitrariness and to provide justice. There must also be a gradual process, where both institutions must emphasize examination so that its decisions reflect justice.

“If future evaluation on the MKDKI by the KKI is possible, no parties will be harmed and justice can be fought for. Therefore, if such an evaluation on the MKDKI’s decisions is not applied, the word ‘binding’ in the a quo article would be in violation of Article 28D paragraph (1) of the 1945 Constitution,” Jimmy said on site at the plenary courtroom.

Developing Professional Judicial System

Health expert Hasrul Buamona also talked about the need to develop the independence of professional judicial system within the judiciary. He believes health services cannot be viewed partially with a focus on the medical profession, but it must also be seen as a capital-, technology-, human resource-, and problem-intensive institution.

He views medicine as part of the instrument to find out how a doctor practice his discipline rationally, accountably, and with dedication to patients. Medical discipline, he said, can be a barometer of a doctor’s professionalism and the quality of their education. If a doctor makes a mistake in performing their duty, the KKI is authorized to revoke their STR.

Professional Judicial System Necessary

Buamona believes it is time that a professional judicial system is established under the Supreme Court since despite the establishment of the MKDKI is regulated in Law No. 9 of 2004, its position is ambiguous and it is not legally sufficient to try medical violations, with it being a mere extension of the KKI while its decisions have broad impact.

“So, this is against judicial independence, while the MKDKI has performed judicial functions by examining and judging evidence and deciding on professional mistakes made by doctors. It is appropriate that questions are raised over the MKDKI’s independence and impartiality and its decisions through recommendations to the KKI,” said the medical law doctor of the Islamic University of Indonesia (UII).

No Mechanism to Cancel Testimony

The Petitioners also presented dr. Maria Yustina as a witness. She revealed that she had undergone two verification hearings before the MKDKI as a result of her lawsuit lodged by a patient. At the first verification hearing, she was examined by a registrar, during which she felt she had been cornered and made to testify for a wrongdoing. She had a counsel during the hearing, which she could not utilize. After this hearing, she was asked to submit a response letter and await further process.

“I was invited to another hearing that was a reminiscent of the first hearing. However, I was given the option to choose the information I was going to give, whether to maintain my testimony from the first hearing or to provide a new one. I decided to maintain my testimony from the first hearing, but I only wanted to ask what was my mistake that I was asked to testify for at the first hearing, during which I was supposed to declare guilt,” she said after revealing that she was sanctioned by the MKDKI.

She questioned the MKDKI’s disciplinary action, where she was prohibited from sharing the link to the decision when in fact many of her colleagues were aware of it. She also questioned why despite successful mediation with the plaintiff, the MKDKI’s decision was not annulled, and so she had to undergo the punishment.

Also read:

Provision on MKDKI’s Examination Challenged

Case on MKDKI’s Examination Sees Additional Petitioner

MKDKI, KKI Have Independent Positions 

Govt: KKI Cannot Review MKDKI’s Decisions 

The Petitioners challenge Article 69 paragraph (1) of the Medical Practice Law, especially the phrase “shall be binding for dentists and the Indonesian Medical Council,” which they believe is against Article 1 paragraph (3), Article 28D paragraph (1), Article 28G of the 1945 Constitution.

Petitioner I was reported by the MKDKI despite having practiced his profession accordingly and accountably, 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 is supposed to be examining 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.

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