Legal counsel Petrus Bala Pattyona conveying the revisions to the judicial review petition of Law No. 17 of 2023 on Health, Monday (11/25/2024). Photo by MKRI/Panji.

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JAKARTA (MKRI) — The Association of Medical and Health Law Consultants (PKHMK) and two advocates as Petitioners of case No. 156/PUU-XXII/2024 ask that the provision on recommendation on criminal/civil sanctions from the Professional Disciplinary Council (MDP) for medical and health personnel be abolished. They conveyed the request at the petition revision hearing for the judicial review of Article 308 paragraphs (1), (2), (3), (4), (5), (6), (7), and (8) of Law No. 17 of 2023 on Health.

“[The Petitioners request that the Court] declare Article 308 paragraph (1), in particular the phrase ‘a recommendation from the assembly must first be requested as referred to in Article 304,’ Article 308 paragraph (2), in particular the phrase ‘a recommendation from the assembly must first be requested as referred to in Article 304,’ paragraph (3), paragraph (4), paragraph (5), paragraph (6), paragraph (7), paragraph (8), and paragraph (9) of the Law of the Republic of Indonesia No. 17 of 2023 on Health (State Gazette of the Republic of Indonesia of 2023 No. 105 and the Supplement to the State Gazette of the Republic of Indonesia No. 6887) unconstitutional and not legally binding,” said the Petitioners’ legal counsel Petrus Bala Pattyona on Monday, November 25, 2024.

The Petitioners had revised the elaboration of the Court’s authority, the Petitioners’ legal standing, the reason to file the petition, and the hierarchy of the petition. They had also detailed concrete cases concerning the issue at hand that they had come across and the differences between the handling of criminal and civil cases before and after the a quo Law had taken effect.

“We also explain that the MDP comprises only nine persons and we have added explanation that [it is not] possible for nine persons to handle recommendations for all civil/criminal cases all across Indonesia,” said legal counsel Janses E. Sihaloho.

The Petitioners of case No. 156/PUU-XXII/2024 argue that their constitutional rights have been harmed by the enforcement of the phrase “a recommendation from the assembly must first be requested as referred to in Article 304” in said norms. They allege that the norms are contrary to Article 27 paragraph (1) of the 1945 Constitution. Article 308 paragraph (1) of the Health Law reads, “In the event that a Medical Personnel or Health Personnel is suspected of committing any unlawful acts in the implementation of health services that can be subject to criminal sanctions, a recommendation from the assembly must first be requested as referred to in Article 304.” Meanwhile, Article 308 paragraph (2) reads, “For a Medical Personnel and Health Personnel who is held accountable for actions/inactions related to the implementation of Health Services that harm any Patient in a civil manner, a recommendation from the assembly must first be requested as referred to in Article 304.”

Meanwhile, Article 304 concerns provision on disciplinary actions for the profession to support the professionalism of medical and health personnel. The minister formed an assembly that deals with the profession’s discipline. The permanent or ad hoc assembly determines whether a professional disciplinary violation has been committed.

In the a quo Law, the assembly in question is the Professional Disciplinary Council (MDP) for medical and health personnel. It only concerns ethics and does not have authority to judge whether any criminal or civil violation of the law has been committed. The Petitioners believe it would be inappropriate for an ethics council to be given authority to recommend and examine any violation of criminal or civil law.

The council cannot be equated with any law enforcement body in the formal sense, which has pro justitia authority, so it must apply due process of the law as well as the presumption of innocence, as it is a disciplinary institution in medicine and health that has the authority to determine whether a medical or health personnel has committed any misconduct or violation in the implementation of their profession. Therefore, rather than due process of law, the council focuses more on due process of ethics and due process of discipline.

Also read: Medical/Health Disciplinary Council’s Recommendation on Criminal/Civil Sanction Questioned

At the preliminary hearing on Monday, November 11, 2024, the Petitioners argued that any different treatment against medical and health personnel in law enforcement cannot be justified and is unconstitutional, as stipulated in Article 27 paragraph (2) of the 1945 Constitution. They must be treated equally before the law in all stages. The requirement for the council’s approval is contrary to the principle of independence in the judicial process. Criminal and civil proceedings are required before obtaining the council’s recommendation, which can result in a protracted judicial process, which may lead to a denial of justice.

In their petitum, the Petitioners request that the Court declare the phrase “a recommendation from the assembly must first be requested as referred to in Article 304” in Article 308 paragraph (1) of the Health Law unconstitutional and not legally binding.

Before concluding the session, Deputy Chief Justice Saldi Isra (panel chair) stated that the hearing would be reported at the justice deliberation meeting (RPH). He added that the Court will be settling disputes over the regional election results in the immediate future.

Author            : Mimi Kartika
Editor            : Lulu Anjarsari P.
PR                 : Fauzan Febriyan
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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