The ruling hearing for the formal judicial review of Law No. 17 of 2023 on Health, Thursday (2/29/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the formal judicial review petition of Law No. 17 of 2023 on Health (Health Law) by 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). The ruling hearing for Decision No. 130/PUU-XXI/2023 took place on Thursday, February 29, 2024 in the plenary courtroom.

“[The Court] adjudicated; rejects the Petitioners’ petition in its entirety,” Chief Justice Suhartoyo delivered the verdict alongside the other constitutional justices.

Limitation of DPD’s Legislative Authority

In its legal considerations, delivered by Constitutional Justice Arsul Sani, the Court stated that by design, the Regional Representatives Council’s (DPD) legislative function is not as extensive as that of the House of Representatives (DPR). Therefore, the DPD is not automatically authorized to participate in discussing bills that involve the regions. The Court asserted that DPD’s authority to discuss bills has constitutionally been limited by the 1945 Constitution.

“This clear limitation should not be interpreted extensively. The phrase ‘relating to’ in Article 22D paragraph (2) of the 1945 Constitution cannot be interpreted as ‘with aspects of,’ because otherwise the bills that the DPD is supposed to discuss will be countless. In fact, all laws have regional or regional government aspects since the laws do not only apply to citizens and governance at the central level but also to [those] at the regional level,” Justice Arsul continued.

Not to mention, interpreting all laws relating to the regions to be under the DPD’s jurisdiction would be against the principle of limitation of power, in casu the limitation of DPD’s legislative authority referred to in Article 22D paragraph (2) of the 1945 Constitution. In other words, differentiation of legislative power or authority between the House and the DPD shows that the Indonesian representative institution system does not adhere to the strong bicameralism. Therefore, the Court asserted, although the Health Law contains regional or regional government aspects, it does not necessarily mean that it is directly related to regional autonomy or relations between the central and regional governments.

The Court asserted that this applies to DPD’s authority to provide the House with opinions on bills on state budget and bills relating to taxes, education, and religion.

The Petitioners argued that substance in the Health Law is related to education, so the DPD must be involved in its discussion. However, the Court believes that bills with aspects of education do not necessarily mean they are bills regulating education as does Law No. 20 of 2003 on the National Education System.

Although the Health Law contains the education aspect, the DPD does not necessarily have authority to provide opinion on its bill.

Therefore, following provisions of Law No. 23 of 2014 on the Regional Government, the division of government affairs in the field of education for the management of higher education is the authority of the central government. Meanwhile, provinces manage secondary education and special education, while regencies/cities are authorized to manage basic education, early childhood education, and non-formal education.

Facts in Court Proceedings

Justice Arsul also stated that the DPD had not volunteered to be a relevant party in the case when the Court had sent a copy of the petition through the Chief Registrar’s Letter No. 167.130/PUU/PAN.MK/SP/09/2023 dated September 25, 2023 and a copy of the revised petition through the Chief Registrar’s Letter No. 124.130/PUU/PAN.MK/SP/10/2023 dated October 30, 2023.

Moreover, the litigating parties did not provide any evidence indicating that DPD had objected to not being involved in the discussion or had asked to participate in the drafting of the Health Law. “In other words, it can be concluded that the DPD did not question its non-involvement in the formation of Law No. 17 of 2023,” Justice Arsul explained.

In its considerations, the Court also asserted that during the entirety of the drafting of the Health Law, DPD had had many opportunities to be involved, starting from the discussion of the national legislative program (prolegnas). DPR, DPD, and the Government had discussed legislative programs together, during which programs concerning DPD’s authority would have been apparent. As such, DPD would have been able to detect, group, and list the bills it could be involved in or provide inputs into during their discussions.

Outside of the prolegnas meetings, the DPD speaker could request DPR speaker or the president to ask to be involved in or provide opinions. However, this was not done in the drafting of the Health Law or at least there has not been any evidence showing the DPD’s intent to do so.

Not to mention, the “observing” part of the considerations of Law No. 17 of 2023 does not mention Article 22D paragraph (2) of the 1945 Constitution as the legal basis of the formation of the Health Law. Therefore, the Court asserted, despite not questioning its non-involvement in the process, based on legal reasoning the DPD could have notified the House or the president that it had the legislative authority to provide opinions in the bill. This fact had convinced the Court that the DPD had acknowledged that Law No. 17 of 2023 was not within its jurisdiction as regulated limitedly in Article 22D paragraph (2) of the 1945 Constitution, despite the Petitioners’ insistence.

“Based on the aforementioned legal considerations, the Court believes the bill of Law No. 17 of 2023, whose discussion did not involve the DPD nor ask for its opinions, is not formally defective, contrary to the Petitioners’ argument. As such, the argument of the a quo petition was legally groundless,” Justice Arsul said delivering the Court’s legal opinion.

In addition, in the considerations read out by Constitutional Justice M. Guntur Hamzah, the Court asserted that the drafting technique of the Health Law has followed the second appendix to Law No. 12 of 2011 on Lawmaking, which details the format as: chapters, sections, subsections, articles, paragraphs, and points. The Court observed that the Health Law’s structure and format have followed lawmaking rules as an omnibus law that applies systematic numbering so as to ensure readability and comprehensibility for its users and stakeholders. As such, the Petitioners’ argument that the Health Law had been formally defective due to its format not following lawmaking procedure was legally groundless.

“Therefore, based on the aforementioned legal considerations, the Court is of the opinion that the formation process of Law No. 17 of 2023 did not formally contradict the 1945 Constitution. As such, it has binding legal force. Accordingly, the Petitioners’ arguments were legally groundless in their entirety,” Justice Guntur stressed.

Dissenting Opinions

Four constitutional justices had dissenting opinions on the ruling. They were Chief Justice Suhartoyo, Deputy Chief Justice Saldi Isra, and Constitutional Justices Enny Nurbaningsih and Ridwan Mansyur.

The chief justice revealed that the four justices were in agreement that the petition should have been granted since the Health Law must have been declared formally defective.

“Fundamentally, the four constitutional justices in question are of the opinion that the petition should be granted and are also of the opinion that Law No. 17 of 2023 must be declared formally defective,” he emphasized.

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At the preliminary hearing on Thursday, October 12, legal counsel Muhammad Joni conveyed that the Petitioners of case No. 130/PUU-XXI/2023 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            : Raisa Ayuditha
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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