Ahmad Redi testifying as an expert for the Government at a material judicial review hearing of Law No. 29 of 2004 on Medical Practice, Thursday (6/22/2023). Photo by Humas MK/Panji.
JAKARTA (MKRI) — The Indonesian Medical Disciplinary Board (MKDKI) is not a law enforcement institution, thus not bound by the due process of law. It is an enforcer of discipline among doctors that has the authority to determines whether doctors and dentists have committed malpractice, said Ahmad Redi, an expert presented by the president/Government at the judicial review hearing of Article 69 paragraph (1) of Law No. 29 of 2004 on Medical Practice on Thursday, June 22, 2023. This sixth hearing for case No. 21/PUU-XXI/2023 presented the president/Government’s experts and witness. The petition was filed by surgeons Gede Eka Rusdi Antara, Made Adhi Keswara, and I Gede Sutawan (Petitioners I-III).
Redi further explained that the difference between the two. Law enforcement institutions hand down criminal and state administrative punishments, which apply to all legal subjects—individuals and legal entities—while disciplinary institutions hand down administrative punishments, which only apply to members of a certain profession. In addition, law enforcement institutions follow due process of law, while disciplinary institutions do not.
Attributive Authority
Next, Redi explained that the authority of the Indonesian Medical Council (KKI) and the MKDKI is attributive, so the revocation of doctor’s registration number (STR) and medical license (SIP) by the KKI is a show of institutional unity and management that accelerates the imposition of disciplinary sanctions and avoids conflicts of authority that can hinder health development. Meanwhile, the MKDKI’s recommendations are classified as declarative or validating constitutive decisions—meaning that without the MKDKI decisions, the KKI decisions will not exist.
“Thus, these declaratory decisions will not change rights and obligations, but merely state existing rights and obligations. They are preceded by constitutive decisions, which determines obligations to do something. Thus, the KKI’s decisions to revoke STRs and SIPs are merely endorsements, as they are bound by the MKDKI’s recommendations. The MKDKI’s recommendations that bind the KKI are in accordance with normative, theoretical, and philosophical truths. They are also not mere suggestions or advice that give KKI the choice to do them or not, but constitutive state administrative actions,” explained Redi, who is a lecturer at the Law Faculty of Tarumanagara University and executive director of the Jurist Institute Collegium, from the plenary courtroom.
Maintaining Professional Dignity
The next expert the President presented, Herkutanto, testified on several matters related to the constitutionality of the Medical Law. The enforcement of discipline, he argued, is different from that of the law because disciplinary norms serve to maintain the honor of the profession by protecting public safety through disciplinary actions against practitioners who are not fit to practice. Meanwhile, legal norms aim to realize the peaceful coexistence by providing a sense of justice through the fulfillment of the rights and obligations of the parties in conflict.
“Meanwhile, it cannot be said that doctors whose STRs are revoked by the MKDKI have their rights violated under the 1945 Constitution because practicing medicine is not a general right that everyone has, but rather a privilege or optional right or additional right, because practicing medicine is prohibited for anyone except for those who have fulfilled the requirements, and the right will automatically be void if the conditions for it are not met,” explained Herkutanto, an expert in forensics and medicolegal of the Faculty of Medicine of Universitas Indonesia, Dr. Cipto Mangunkusumo Hospital.
Herkutanto believes STR revocation by the KKI not to be punishment on doctors, but a means to protect the public’s safety from doctors who are not fit to practice. In essence, he added, medical professional disciplinary cases are handled by a team consisting of the KKI and the MKDKI, so the KKI is bound by the MKDKI’s decisions.
Disciplinary Council’s Testimony
Next, witness Saleh Al Mochdar, a neurosurgeon and a disciplinary examiner for MKDKI complaints, gave a testimony in response to the Petitioners’ witness from the previous hearing. The disciplinary examination panel, he said, never force the person concerned to admit guilt. He also made it clear that the closed examination hearing was in accordance with Article 12 of the KKI Regulation No. 50 of 2017.
“Meanwhile, the open ruling hearing with a valid and binding decision is also in accordance with Article 83 paragraph (1) and paragraph (4) of the KKI Regulation No. 50 of 2017 on the Procedure for Handling Disciplinary Complaints against Doctors and Dentists. Furthermore, in the summons for the ruling hearing, there is no prohibition on spreading the zoom link for it,” Saleh said.
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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 : Nur R.
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.
Thursday, June 22, 2023 | 15:50 WIB 313