The Petitioner and legal counsel presenting the points of the petition of the judicial review of Law No. 17 of 2023 on Health, Thursday (9/19/2025). Photo by MKRI/Panji.
JAKARTA (MKRI) — Advocate Eliadi Hulu has filed a material judicial review petition of Article 308 paragraphs (2), (4), (6), and (7) of Law No. 17 of 2023 on Health to the Constitutional Court (MK). the preliminary hearing for case No. 161/PUU-XXIII/2025 took place in the plenary courtroom on Thursday, September 18, 2025.
Article 308 paragraph (2) of the Health Law 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 308 paragraph (4) reads: “The recommendation by the assembly as referred to in paragraph (2) shall be issued after the Medical Personnel, Health Personnel, or a person authorized by the Medical Personnel or Health Personnel submits a written application in response to a lawsuit filed by the Patient, the Patient’s family, or a person authorized by the Patient or the Patient’s family.”
Article 308 paragraph (6) of the Health Law provides: “The recommendation referred to in paragraph (4) shall be a recommendation on whether the professional practice carried out by the Medical Personnel or Health Personnel conforms or does not conform with professional standards, service standards, and standard operating procedures.”
Article 308 paragraph (7) states: “The recommendation referred to in paragraphs (5) and (6) shall be issued no later than 14 (fourteen) workdays from the date the request is received.”
Through counsel Agustine Pentrantoni Penau, the Petitioner contends that these provisions conflict with Article 28D paragraph (1) of the 1945 Constitution. As a patient who receives care from medical personnel and/or health personnel, the Petitioner may be exposed to actions that deviate from procedure and/or to malpractice that could cause losses for which civil liability may be sought.
“If the Petitioner pursues his rights in civil court by suing the relevant medical personnel and/or health personnel, that suit cannot be immediately examined and adjudicated by a judge. The court must first await a recommendation from the Professional Disciplinary Council (MDP) as stipulated in Article 308 paragraphs (2) and (4) of Law No. 13 of 2023,” Penau said at the panel hearing chaired by Chief Justice Suhartoyo.
She further explained that, if the Petitioner intends to file a civil claim against medical and/or health personnel, the MDP recommendation becomes a mandatory in pursuing his civil legal rights. Yet such a recommendation will only be obtained if the defendant medical/health personnel themselves take the initiative to request it from the MDP by submitting a written application in response to the suit brought by the patient, the patient’s family, or an authorized representative.
According to the Petitioner, making the prosecution and adjudication of civil claims contingent upon the defendant’s initiative to request an MDP recommendation adds a formal requirement that plainly violates the principle of due process of law. The norms in Article 308 paragraphs (2), (4), (6) and (7) of Law No. 13 of 2023, the Petitioner argues, deny procedural justice to patients—including the Petitioner—because the continuation of a civil action depends entirely on the willingness of the medical/health personnel defendant to apply for the MDP recommendation.
Petitioner’s Petitums
On that basis, the Petitioner asks the Court to declare that Article 308 paragraphs (2), (4) and (6) of Law No. 17 of 2023 on Health (State Gazette of the Republic of Indonesia 2023 No. 105, Supplement No. 6887) are inconsistent with the 1945 Constitution and therefore have no binding legal force. Alternatively, the he requests that Article 308 paragraph (4) of Law No. 17 of 2023 be declared unconstitutional insofar as it is not read to mean: “The recommendation of the council as referred to in paragraph (2) shall be issued after the court has submitted a written request regarding the suit filed by the Patient, the Patient’s family, or a person authorized by the Patient or the Patient’s family.”
The Petitioner also asks the Court to declare Article 308 paragraph (7) of Law No. 17 of 2023 unconstitutional insofar as it is not interpreted to read: “The recommendation referred to in paragraph (5) shall be issued no later than 14 (fourteen) workdays from the date the request is received.”
Justices’ Advice
Constitutional Justice Daniel Yusmic P. Foekh advised the Petitioner to reconsider which norms are being challenged, noting that professional organizations generally exist to protect their members. “Is this indeed the correct article to challenge if the allegation is lack of protection for patients? Regarding the petitums, from what I read, the Petitioner seeks to have paragraph (2) declared unconstitutional; if so, what of paragraphs (1), (3), (5), and (7)—do they not have an effect? The provision is one continuous section, and here you also include an alternative petitum. Does the provision fail to protect medical personnel? You should strengthen your argument,” he said.
Meanwhile, Constitutional Justice M. Guntur Hamzah reminded the Petitioner to clarify his legal standing as an advocate claiming harm from the norm. “How do you substantiate this position? This matter also concerns protection for medical personnel, not solely from the patient’s perspective. Perhaps re-examine the provisions relating to patients that fall under your rights and further substantiate the constitutional impairment. Also bear in mind that this law embraces a regime of out-of-court dispute resolution or resolution through the MDP; ethics are examined first. Once the ethical review is complete, and if an ethical violation is found, then the MDP recommendation would make it more appropriate to bring the matter into the civil legal domain,” he advised.
Chief Justice Suhartoyo asked the Petitioner to elaborate on his legal standing in the case. “If you are only potentially a patient, you must demonstrate that potential. Then provide a more comprehensive account of the original intent: why must an MDP recommendation be sought, and why are the ones requesting it the medical professionals who are being sued in the civil action?” he said.
Before adjourning the session, Chief Justice Suhartoyo informed the Petitioner that he would have 14 workdays to revise the petition. The revised petition must be submitted to the Registrar’s Office no later than Wednesday, October 1, 2025 at 12:00 WIB. The Court will then schedule a second hearing to hear the revisions to the petition.
Author : Sri Pujianti
Editor : N. Rosi
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, September 18, 2025 | 14:59 WIB 235