Professional Organizations Claim New Health Law Formally Defective

The preliminary hearing of the formal judicial review of the Health Law petitioned by five health professional organizations, Thursday (10/12/2023). Photo by MKRI/Ilham W.M.

JAKARTA (MKRI) — The Joint Secretariat of Health Profession Organizations, which consists of five medical and health professional organizations, filed a formal judicial review petition of Law No. 17 of 2023 on Health (Health Law) to the Constitutional Court (MK). The five organizations are the executive boards of the Indonesia Doctors Association (PB IDI), the Indonesian Dental Association (PDGI), the Indonesian National Nurses Association (PPNI), the Indonesian Midwives Association (IBI), and the Indonesian Pharmacists Association (IAI) as Petitioner I-V, respectively.

The preliminary formal judicial review hearing of the Health Law for case No. 130/PUU-XXI/2023, held on October 12, 2023, was presided over by Constitutional Justices Suhartoyo (panel chair), Daniel Yusmic P. Foekh, and M. Guntur Hamzah. The Petitioners’ legal counsel Muhammad Joni conveyed that the Petitioners are medical personnel who have been directly affected and have an interest in the formation of the Health Law. The newly-enacted law has deleted, changed, and replaced by norms in the old Health Law, those on professional organizations, councils, collegiums, which are the institutional norms and, at the same time, key articles, thus do not ensure a single forum for medical and health professional organizations.

The new Law has also changed and replaced norms regarding the institution of councils, collegiums, and disciplinary ethics councils without formal procedure that ensure meaningful participation. Moreover, continued Joni, Article 451 in Chapter XIX on Transitional Provisions abolished all collegiums that are the “hearts” of professional organizations and are not government organs nor owned by the Government. The Law has arbitrarily abolished all legal entities of collegiums by enacting Article 451 of the Health Law, which reads, “When this Law comes into force, the Collegium established by each professional organization shall continue to be recognized until the establishment of Collegiums as referred to in Article 272 established under this Law.” This, the Petitioners argued, is in violation of the constitutional right to freedom of association.

Formally Defective

The Petitioners believe the Health Law formally defective as the DPD (Regional Representatives Council) did not participate in discussing the Health Bill. The absence of the DPD’s considerations is against the lawmaking procedure as prescribed in Article 22D paragraph (2) of the 1945 Constitution.

Therefore, in their petitum, the Petitioners ask the Court to declare the Health Law unconstitutional and not legally binding. “[The Petitioners request that the Court] declare Law No. 17 of 2023 on Health, which was enacted in Jakarta on August 8, 2023 and promulgated in Jakarta on August 8, 2023 in the State Gazette of the Republic of Indonesia No. 105 of 2023 does not fulfill the lawmaking provisions according to the 1945 Constitution of the Republic of Indonesia and the a quo Law No. 17 of 2023 on Health is not legally binding," said Joni reading out the petitum.

Legal Standing

In his advice, Constitutional Justice Daniel Yusmic P. Foekh highlighted the legal standing. He hoped that the Petitioners would attach the organizations’ bylaws/statute and its latest management structure to show who have the right to represent the organizations in and out of court.

“Please submit the ratification and notarial deed and the article or paragraph (in the bylaws) that explains who have the right to represent the organizations. This is the window to the Petitioners’ legal standing in this case,” he added.

Meanwhile, Constitutional Justice M. Guntur Hamzah said the petitum did not need to include the date and place of ratification of the law. The main thing is that the Petitioners include State Gazzette and additional State Gazettes because they are related to the formal review of the newly-enacted law.

Next, Constitutional Justice Suhartoyo reminded the Petitioners to pay attention to the letter of attorney to represent the organization in the profile section. He added that it is also necessary for the Petitioners to clearly describe their constitutional losses and the causality of the norms being challenged in this case.

“Elaborate why the formation [of the Health Law] was unconstitutional. Is it necessary to be addressed with Article 22A of the 1945 Constitution?” he asked.

At the end of the hearing, Constitutional Justice Suhartoyo informed the Petitioners that they would have 14 workdays to revise the petition and submit it to the Court’s Registrar’s Office no later than October 25, 2023 at 09:00 WIB.

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Tahlitha Laela/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, October 12, 2023 | 13:47 WIB 156