Constitutionalism law expert Susi Dwi Harijanti testifying as an expert for the Petitioners at a formal judicial review hearing of Law No. 17 of 2023 on Health, Thursday (1/25/2024). Photo by MKRI/Bayu.
JAKARTA (MKRI) — The Constitutional Court (MK) held another formal judicial review hearing of Law No. 17 of 2023 on Health (Health Law) for case No. 130/PUU-XXI/2023 on Thursday, January 25, 2024. The case was filed by the Joint Secretariat of Health Profession Organizations. The hearing had been scheduled to present the Petitioners’ and the president’s experts.
As an expert for the Petitioners, constitutionalism law expert Susi Dwi Harijanti said that public hearings that are held merely to fulfill formal procedural aspects, as was done in the formation of the Health Law, are a form of tokenistic policy, which is solely aimed at presenting physical participation, regardless of the participation of ideas.
“[My] argument can be justified with the following two phenomena: There is a lack of caution in identifying stakeholders that must be involved in the discussion forums. For example, the Indonesian Medical Council (KKI), the Indonesian Medical Disciplinary Board (MKDKI), the Indonesian Health Workers Council (KTKI), as well as a number of collegiums that are directly affected by the a quo Law were not invited to provide opinions and input on the bill of law,” she said.
In fact, Susi continued, the involvement of these stakeholders could potentially change or influence the legislatures’ future policies. In addition, ideas or inputs have been provided by stakeholders in discussions or even included in the problem inventory list (DIM), but some of them are not discussed substantively to produce a conclusion or win-win alternative policies. In fact, some these ideas are provisions or articles that are the “heart” of the a quo Law, such as provisions regarding a single professional organization, an independent council, the collegium as an academic body of professional organizations, a medical/health ethics council, legal protection of medical personnel and health workers, mandatory health funding by the government (mandatory spending), and various others.
DPD’s Involvement
Susi explained that the amendments to the 1945 Constitution also led to changes in regional autonomy as the most important legal politics in the implementation of regional governance. This is based on explicit statements on the principle of autonomy and the pattern of relations between the central and local governments that are expected to be in harmony and fairness. Therefore, in her view as an expert, in relation to Article 22D and the Constitutional Court decision that has been handed down relating to the Regional Representatives Council (DPD), then Article 22D is a protection clause to Article 18, 18A, and 18B.
“That is why DPD was formed and given such authority. The presence of DPD should be seen as including DPD in the daily implementation of the state. And with the authority to propose and participate in discussing certain bills of laws as mentioned above in the context of the a quo Law, DPD serves to balance the House and the president in order to maintain the legal politics of regional autonomy to ensure that the part or delegation from the central government to the local government fulfills the principle of the widest possible autonomy,” Susi emphasized before the hearing chaired by Chief Justice Suhartoyo.
DPD’s Non-Participation
At the hearing, the President presented two experts, constitutional law professor Aidul Fitriciada Azhari and associate professor of law Ahmad Redi. Aidul said the DPD’s non-participation in the discussion of a bill of law does not necessarily make it procedurally flawed, as confirmed in the Constitutional Court’s legal considerations in Decision No. 73/PUU-XII/2014.
“Based on the a quo decision, it is clear that the health bill was outside the substance of Article 22D paragraph (1) of the 1945 Constitution of the Republic of Indonesia, so the joint discussion was conducted between the president and the House,” he added.
He further explained that the DPD’s participation in discussing the bill referred to in Article 22D paragraph (2) of the 1945 Constitution is in the context of the discussion of the bill that is limitedly set out in the 1945 Constitution, i.e. relating to regional autonomy; central-regional relations; establishment, expansion, and merger of regions; management of natural resources and other economic resources; as well as financial balance between the center and the regions. The provisions on the limitation of the bill, which is the authority of DPD, is clear and does not need to be interpreted otherwise. The meaning of “related” in these provisions indicates the substance of the bill that is directly related to regional autonomy; central and regional relations; establishment, expansion, and merger of regions; management of natural resources and other economic resources, as well as the financial balance between the center and the regions. The phrase “related to” cannot be interpreted as “containing dimensions” or “containing aspects” because it is contrary to the limitations intended in Article 22D paragraph (2) of the 1945 Constitution of the Republic of Indonesia.
Thus, Aidul continued, in relation to the health bill, even though it contains regional dimensions or local government, it does not necessarily have to be interpreted as related to the substance of the bill as stated in Article 22D paragraph (2), which requires DPD’s participation of in the discussion of the health bill.
DPD’s Authority
Ahmad Redi testified about the meaning of DPD’s participation in the discussion of the health bill. He said that normatively and in practice, DPD’s authority to participate in discussing the bill has been and will be manifested in various legislation, among others: First, related to regional autonomy, i.e. the regional government laws, currently Law No. 23 of 2014 on Regional Governments and Law No. 10 of 2016 on the second amendment to Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 on the Election of Governors, Regents, and Mayors into Law. The Regional Election Law historically begins with a regulation derived from Law No. 32 of 2004 on Regional Governments.
Second, related to central-regional relations, i.e. the Papua and West Papua Special Regional Law, DKI Jakarta Special Region Law, Aceh Privilege Law, Yogyakarta Privilege Law, and IKN Law, which are products of asymmetric decentralization regime legislation, as well as laws such as the Coastal and Small Islands Law, Marine Law, including the Law on the MPR, DPR, DPD, and DPRD. Third, related to the formation, expansion, and merging of regions, i.e. various laws regarding new autonomous regions (DOB), such as four new DOB laws on South Papua, Central Papua, Papua Mountains, and Southwest Papua Provinces.
Fourth, related to the management of natural resources and other economic resources, i.e. various laws on the natural resources sector and other economic resources, such as the Mining Law, Oil and Gas Law, Geothermal Law, Forestry Law, Plantation Law, Fisheries Law, and Water Resources Law. Fifth, related to central-regional financial balance, i.e. the Law on Financial Relations between the Central Government and Regional Governments.
“[In my opinion], various legislations above are attributively the absolute authority of DPD to participate in discussing the bills. As for the bills other than the five above, such as the health bill, are normatively constitutionally not the DPD’s authority to participate in discussing them,” said the law doctoral degree lecturer of Borobudur University.
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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.
At the preliminary hearing on Thursday, October 12, 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 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 is 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.
Author : Utami Argawati
Editor : Nur R.
PR : Muhammad Halim
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, January 25, 2024 | 20:52 WIB 210