Legal counsel Muhammad Joni conveying the petition’s subject matter at the panel preliminary hearing of Law No. 17 of 2023 on Health, Tuesday (8/27/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Djohansjah Marzoeki, a doctor and professor emeritus of plastic surgery of Airlangga University, has petitioned Article 451, Article 272 paragraphs (2) and (5), Article 1 point 26, and Article 421 paragraph (2) letter b of Law No. 17 of 2023 on Health to the Constitutional Court (MK). The preliminary hearing for case No. 111/PUU-XXII/2024 was presided over by Chief Justice Suhartoyo (panel chair) and Constitutional Justices Daniel Yusmic P. Foekh and Ridwan Mansyur on Tuesday, August 27, 2024 in the plenary courtroom.
Article 451 reads, “When this Law comes into force, the Collegium established by each professional organization shall remain recognized until the establishment of the Collegium as referred to in Article 272 established under this Law.”
Article 272 paragraph (2) reads, “The Collegium as referred to in paragraph (1) is an organ of the Council and in carrying out its role shall be independent.” The Petitioner specifically questions the phrase “is an organ of the Council.”
Article 1 point 26 reads, “The Collegium shall be a collection of experts from each health discipline who are in charge of the branch of science and carries out tasks and functions independently and is an organ of the Council.” The Petitioner specifically questions the phrase “is an organ of the Council.”
Article 272 paragraph (5) reads, “Further provisions regarding the Collegium, including its duties, functions, and authorities, are regulated by Government Regulations.”
Article 421 paragraph (2) letter b reads, “... adherence to professional standards, service standards, standard operating procedures, and professional ethics and discipline.” The Petitioner specifically questions the phrase “and professional ethics and discipline.”
Legal counsel Muhammad Joni said the Petitioners believe those articles are against Article 28C paragraph (1), Article 28D paragraph (1), and Article 28H paragraph (1) of the 1945 Constitution and its Preamble. Due to the new repressive, authoritarian norm relating to collegiums in Article 451, which has no legal argument, the existing collegiums lost their legality as their legal basis had turned illegitimate.
The Petitioner believes Article 421 paragraph (2) letter b has harmed him as it gave the Central and Regional Governments the authority to conduct supervision of professional ethics and discipline, which should be the domain of the profession and not the government.
As an academic institution, collegiums are in charge of medical science. However, they become baseless if they are normalized as government organs because they will be controlled by political rulers or government agencies. The Petitioner has an interest in the legitimacy of an independent collegium, whose existence and functions must reflect academic principles and the medical science. He argues that the collegium is an independent academic body and so its existence and functions are guaranteed, respected, and protected, not as a government agency. Therefore, the duties, functions, and authority of the collegium are unconstitutional if it is formed by the Minister of Health and becomes an executive organ regulated through Government Regulation (PP) No. 28 of 2024 on the Implementing Regulation for Law No. 17 of 2023 on Health as contained in Article 272 paragraph (5) of the Health Law.
“The reality today with the issuance of PP No. 28 of 2024 […] a collegium that makes decisions or carries out its duties, functions, and authorities not in accordance with the duties and functions of the government, may see its decisions changed. The article in PP No. 28 of 2024 is a legal reality that makes it evident that the collegium has become a government organ, so such rules are contrary to the original intention of the collegium’s existence,” Joni said.
For this reason, in one of his petitums the Petitioner requests that the Court declare Article 451 of Law No. 17 of 2023 unconstitutional and not legally binding; declare Article 421 paragraph (2) letter b along the phrase “and professional ethics and discipline” unconstitutional and not legally binding, so that Article 421 paragraph (2) letter b of Law No. 17 of 2023 would read, “… adherence to professional standards, service standards, standard operational procedures.”
He also asks the Court to declare Article 272 paragraph (2) of the Health Law conditionally constitutional if it means, “facilitated by the state without intervention and conflict of interest,” so that Article 272 paragraph (2) of the Health Law would read, “The Collegium as referred to in paragraph (1) in carrying out its role shall be independent and facilitated by the state without intervention and conflict of interest.”
Constitutional Loss
Constitutional Justice Daniel Yusmic P. Foekh mentioned that the Petitioner’s legal standing and the constitutional loss had not been elaborated. He asked the Petitioner whether he submitted the petition as an organization or collegium and/or individual.
“It is also necessary to add the background of the creation of the norm being reviewed. Describe the original intent, because there are legal politics [behind it]. [Also explain] the existence of the collegium after this Law was enacted, including the issue of subordination as the council’s apparatus. If there is [an elaboration], the results of the study or discussion shall be the joint attitude of this collegium,” he said.
Meanwhile, Constitutional Justice Ridwan Mansyur highlighted the five articles reviewed against three touchstone articles. He hoped the petition would be strengthened with arguments that have an impact on the unconstitutionality of the collegium accompanied by case studies. Next, Chief Justice Suhartoyo scrutinized the legal standing, in relation to the assumption of constitutional loss experienced by the Petitioner.
“In this petition, there has been no explanation of the presumed loss experienced by the Petitioner so that there is causality with the requirements of the five constitutional losses. In the petitums there are contradictions. Look at several things requested so that the petitums are not vague,” he explained.
Before adjourning the hearing, Chief Justice Suhartoyo announced that the Petitioner would have 14 days to revise the petition and submit it by Tuesday, September 10, 2024 at 15:00 WIB to the Registrar’s Office. A second hearing will then be scheduled to examine the revisions to the petition.
Author : Sri Pujianti
Editor : Nur R
PR : Raisa Ayuditha Marsaulina
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.
Tuesday, August 27, 2024 | 14:37 WIB 57