Key Benefits:
VERDICT Number 63 /PUU-X/2012
FOR JUSTICE BASED ON THE DIVINITY OF THE ALMIGHTY
CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA
[1.1] That prosecuting constitutional matters at first level and Last,
dropped the verdict in case Testing Case Number 36 of the Year
2009 on Health of the Republic of the Republic Basic Law
Indonesia Year 1945, submitted by:
[1.2] 1. Name: H. F Abraham Amos, S. H
Work: Lecturer/Advokat/Practice/KPA Instructor and Consultant
Law
Address: Jalan Coconut Ivory III Number 5, RT.010/01 Cililitan
Large, Kelurahan Kramat Jati, District Kramat Jati,
East Jakarta
2. Name: Johny Bakar, S. H Job: Advocate/Practitioner/Legal Consultant
Address: Swamp Village II, RT 013/04 Number 4, Kebon Oranges-
West Jakarta
Next is called as ---------------------------------------------------------------------------------------------------------------------------------------------------------------- Applicant;
[1.3] Reading the applicant's request;
Hearing the Applicant;
Checking the petitioners;
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2. SITTING MATTERS
[2.1] A draw that the petitioners in his application are dated
14 June 2012 which were accepted in the Constitutional Court (subsequently
called the Court of Justice) on 14 June 2012. based on the deed
The receipt of the request file number 220 /PAN.MK/ 2012 and noted in
The Book of the Constitutional Case on June 20, 2012 with the Number
63 /PUU-X/2012, then it has been corrected and received at
The Court of Justice of July 9, 2012, which in the first place suggests that
below:
I. AUTHORITY OF THE COURT 1. That the Constitutional Court has the authority in accordance with Article
24 paragraph (2) The Basic Law of the Republic of Indonesia in 1945 (subsequently called Constitution of 1945), which has further beeps: " Justice power is carried out by a Supreme Court and its judiciary body in the general judicial environment, the religious judicial environment, the military judicial environment, the judicial environment of the country ' s efforts, and by a Court of Justice Constitution ".
2. That in accordance with the provisions of Section 24C paragraph (1) Constitution of 1945 juncto Article 10 paragraph (1) Act Number 24 of 2003 of Constitutional Court (State Sheet of the Republic of Indonesia Year 2003) Number 98, Additional Gazette Republic of Indonesia Number 4316) juncto Article 29 paragraph (1) font a, Act No. 48 Year 2009 about Powers of Justice (State Sheet of the Republic of Indonesia Year 2009-Number 157, Bank Of Indonesia Supplement Number 5076), which
further reads: "The Constitutional Court is authorized to judge on the first and last degree that the verdict is final to test the Act on the Constitution of the Republic of Indonesia in 1945".
II. LEGAL STANDING (Legal Standing/Persona Standi in Judicio)
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1. That under the terms of Act No. 24 of 2003 of Constitutional Court as in the Article 51 paragraph (1), which further reads: " The applicant is a party that considers the right and/or authority Its constitutionality is harmed by the enactment of the law, namely: (a) the individual citizen of Indonesia, (b) the unity of the Indigenous Law of Adat all is still alive and in accordance with the development of the peoples and principles of the Republic of Indonesia. set in law, (c) public or private legal entities, or (d) State agencies ".
2. That it has also been described in the Law Perscales
Constitutional Court No. 006 /PUU-III/2005 (dated 19 May 2005) juncto Putermination No. 11 /PUU-V/2007 (dated September 18, 2007), determining the presence of 5 (five) terms on the value of the rights and/or constitutional authority as indicated in Section 51 paragraph (1) Law No. 24 Year 2003 on Constitutional Court
as described below:
a). the right and/or constitutional authority of the applicant who
is provided by the Basic Law of the Republic of Indonesia of Indonesia Year
1945;
b). The rights and/or constitutional authority are considered to have been
aggrieved by the enactment of the testing Act;
c). The rights and/or such authority must be specific (specifically) and
actual or at least a potential that according to the reasoning that
reasonable is certain to occur;
d). (causal verband) relationship between the loss is referred to as moveed
testing;
e). It is possible that with the request of a request then
that constitutional loss will not or no longer occur.
3. That in line with both of those provisions above, then
the constitutional authority and rights of the petitioners and the role and
society against the supervision of public health hosting has been
mandated in Act Number 36 Year 2009
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(State Of The Republic Of Indonesia In 2009 Number 1441, Supplement
sheet Of State Of The Republic Of Indonesia Number 5063) About The Upper Change
Act Number 23 Of 1992 About Health, (sheet) Republic of Indonesia Year 1992 Number 100, Additional Sheet
Republic of Indonesia No. 3495), as set in Article 54 paragraph (3), reads: " Supervision of the hosting of health care as referred to in paragraph (1) conducted by the Government, the Local Government, and Society ", next Article 174 verse (1) reads: " Society plays as well as, both individually and organized in all forms and stages of health development in order to help speed up Achieving a high degree of public health ".
4. That the applicant is based on the rights and authority granted
by UUD 1945 and other laws that have
are described above, legally fulfilling qualifications and classification
as citizens Indonesia that has a legal position (legal standing) as well as having an interest in performing a "material test" (judicial review) as referred to in Section 51 paragraph (1) font a, Act No. 24 of 2003 about Constitutional Court, in particular associated with the norm laws indicated in Section 170 paragraph (3), juncto Section 171 paragraph (1) and paragraph (2) juncto Article 173 paragraph (1) Act Number 36 Of 2009 (Sheet State Of The Republic Of Indonesia In 2009 Number 1441, Additional State Sheet
Republic Indonesia Number 5063) on Change Over Act Number 23 Of 1992 about Health, (sheet of State of the Republic of Indonesia in 1992, Number 100. Additional Gazette Republic of Indonesia Number 3495), with all due to its law.
III. SUBJECT That based on the above descriptions, the applicant "test of the material"
means to convey an important issue about sitting
the issue concerns the interest of law as well as rights constitutional that
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is given by law against the health care user community at
generally as follows:
1. That the Health Authorization norm Act No. 36 of Health, in Article 170 paragraph (1), reads: "The health financing aims for the provision of sustained health financing with the amount of It is sufficient, fair allocation, and is used to be useful and useful in order to ensure the development of health in order to improve the health of the public's health. ". Then Article 170 verse (2) reads: "Unelements of health financing as referred to in verse (1) are composed of the source of financing, allocation, and utilization". Both elements are bested in both the articles and the verse above, intended implicitly
nor explicitly sourced from APBN/APBD or DAU /DAK which is the responsibility of GOVERNMENT PUSAT/PEMDA/PEMPROV for the benefit of health financing for the poor and less
capable (SKTM/GAKIN) that has no jobs and fixed income for health financing.
2. That the provisions of the Public Health Financing Source that
shaped Non Commercial this, have been clearly set up in Section 171 paragraph (3) reads: "Besaran health budget as In verse (1) and verse (2) are prioritiaed for the benefit of the public service that is at least 2/3 (two-thirds) of the health budget in the state budget and spending on state spending and budget and regional spending ". Next in Article 172 verse (1) reads: "Alocation of health financing as referred to in Section 171 paragraph (3) is intended for health care in the field of public services, especially for The poor, the elderly, and the abandoned children ".
3. That the health financing norm is Non- Commercial above if it is associated with the Commercial Health Health Financingof the No. 36 Act of the Health, as indicated in Section 170 paragraph (3) reads:
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"Health financing sources are from the Government, Local Government, Community, Private and other sources". Then Article 171 paragraph (1) reads: " The Greater Government health budget is allocated a minimum of 5% (five percent) of the Income Budget and State Shopping beyond salary ". Next in Section 171 paragraph (2), reads: "Greater Provincial Government Health Budget, District/City is allocated a minimum of 10% (ten percent) of the Budget Revenue and Regional Shopping beyond salary". Both articles and verses above are highly crucial and parsiality, so it is well impressed
both implicitly and explicitly clamoring and contradictory between
Health Financing norm Non-Commercial with Health Financing Norm Commerce in understanding Pancasila economic system (Non- Liberalism) with an understanding of the economic system Liberalism the very tendensius and is discriminatory So that it does not match ROH (Spirit of the Law) of philosophical norms contained in the substance of the Health Act itself, and tends to be detrimental to the
active workers who do not has full health care access.
4. That relates to the provisions as outlined in the
pointer (6) above, then the provisions Act Number 36 of the Year 2009 of Health, in Section 173 paragraph (1) reads: " Alocation Private-sourced health financing as referred to in Article 170 of the paragraph (3) is mobilised through the national social security system and/or commercial health insurance ". Thus then the substance of this provision relates directly to Section 171 paragraph (1) and paragraph (2) which me-negation-kan allocation of funds APBN by 5% and the APBD fund as large as 10% for health care Commerce. Therefore, if noted accurately the provisions of Section 171 paragraph (3) focused on the interest of public health services reduced to
2/3 (two-thirds) of the total 100% allocation of funds APBN 2012 The running budget of the total amount of APBN allocation funds amounted to Rp. 3.005.931.000.000.00.- (three trillions of five billion nine hundred and thirty-one million rupiah), which has been sorted 1/3 (third) part for the allocation of health costs Commerce, as contemplated in Article 171 verse (1) and verse (2),.
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thus according to the frugality the applicant has occurred to be manipulated
the norm is under the provisions of the Health Act itself.
5. That is based on pointers (7) above, the health fund allocation issue
outside the salary of 5% (five percent) for the active workers of APBN
for provincial regions, and 10% (ten percent) for county districts
city, highly irrelevant to the 2012 APBN allocation and is
discriminatory, due to Health Insurance payments through the Company
Private and Government Insurance (ASKES) and JAMSOSTEK levied
of the worker's salary personal or by Government and Corporate subsidies
Private where workers It works. In addition, if it occurs
"insurance claim" the hospital fees and medications are not fully
released, but according to the Insurance Company plaphone in the system
The deposit runs between 1 and 5 years, If
has not reached the "averanges" , it will not be paid in full by
Insurance Company, but only paid between 10% to 25%
"insurance claim" for the health costs of the workers who obtaining services
home services of hospitals and medicines. The remaining arrees
payment is charged to the insurance policyholder worker with
the personal money. This issue becomes a dichotomy and not coherence with
Health Act norms but rather contradictory to the
Insurance Act both theory and practice in the field.
6. That on the basis of the descriptions above, the petitioners
to the conclusion relating to non-
commercial public health services are only complementary tools that are still being held in political dilemmas
and only an "illusion" or "Poor and underprivileged person is banned
is sick in this country" because generally poor citizens status
and people are not capable of indispenable earnings for
obtaining services optimal health according to the principle of humanity that
is fair and civilized and equivalent in the presence of the law.
That based on the description as clearly and
transparently exposed to the pointer (1) up to the pointer (6) above, is an excesses of the legal system of legal norms. rambling
against inefficient public health (public) procedural (public) procedural,
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effective, and economical, is as one of the concrete examples that is
the harassment of handling patients suffering from chronic chronic disease
and swallowing very large costs, to obtain guarantees legal certainty
(rechtzekerheids) and the justice process of justice (due process of law) included for the benefit of the applicant as well as the poorer society
able to generally be in terms of health care the public. In addition, that
azas and the norm of an Act that is enforced as mandatory
has strict and non-partial or crucial charge material,
about the substance of the chapters and passages that contains dualism, so
understanding of the original "lex cetra" must be firm as well as no double refinement (double standard) and is required to provide legal protection both in the application and its implementation in society.
Thus, then understanding the articulation of the language phrase ( languistic phrase) nor the norm of charge material (material norm value) against Article 170 paragraph (3) juncto Section 171 paragraph (1) and paragraph (2) juncto Article 173 paragraph (1) Invite-Invite Number 36 Year 2009 on Changes To Act Number 23
In 1992 of Health, be a test stone (touch stone) against Article 28H paragraph (1) and paragraph (3) juncto Article 34 paragraph (2) and paragraph (3) of the 1945 Constitution, in particular concerns the following norms as follows:
1. That the constitutional right of the petitioners and the patients of the disease
is generally guaranteed by Article 28H paragraph (1) Constitution of 1945, that: " Everyone is entitled to a prosperous life born and an inner, residence, and a person of the living. get a good and healthy life environment as well as entitled to health care ",
that with the enactment of Law Number 36 of 2009 on
The Changes to the Law Number 23 Year 1992, especially Article 170 paragraph (3) reads: "The financing source health comes from the Government, Local Government, Community, Private and other sources ". juncto juncto section 173 paragraph (1) reads: "Alocation of private-sourced health financing as referred to in Article 170 of the paragraph (3) mobilised through the national social security system and/or commercial health insurance ". That by enforced the norms provision in the section and the paragraph above, it would potentially pose a loss
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materials and inhibits the optimal public health care system
for poor underprivileged communities and marginal passive workers
that is not fixed-income.
The idea that the criteria are norm in section and paragraph above, commercial value
and contrary to the constitutional rights of the petitioners and the society
poor underprivileged and non-income passive workers
remain as well as the patients chronic diseases generally, due to
commercial system (liberalism) as opposed to Pancasila economic system, so that it needs to be ruled out or at least stated
does not have a binding legal force.
2.That the constitutional rights of the petitioners and the poor community are lacking.
capable and passive workers of neither fixed nor para
patients with chronic disease are generally guaranteed by Article 28H paragraph (3) UUD 1945, that: " Everyone is entitled to a social guarantee that enables its development intact as a dignified human being ", that is:
The foundation that by the enactment of Article 170 paragraph (1) reads: "The health financing aims for the provision of sustainable health financing with sufficient amounts, equitable allocation, and It is the most successful and useful purpose of ensuring the development of health to improve the degree of public health. ". Further provisions Article 170 paragraph (2) reads: "Unelements of health financing as referred to in paragraph (1) consist of a source of financing, allocation, and utilization".
The view that by doing so section and verse above, no-
not be me-negation-kan provisions Section 170 paragraph (3) juncto Article 173 paragraph (1) Act Health, potentially detrimental to the applicant and the less capable poor people and workers
passive income neither stays nor the patients of the disease
chronic harmful generally, as it does not comply with the economic system
Pancasila (non-liberalism) which Automatically streamlined the second
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the fruits of the section and paragraph and do not have the legal power
binding.
3. That the constitutional right of the applicant and the less impoverished
able and passive workers of income or workers
is active as well as the most dangerous chronically ill patients who have been
guaranteed by the provisions of Article 34 paragraph (2) Constitution of 1945, that: "The State develops a social security system for the whole people and empowers a weak and incapable society according to the dignity of humanity", that is:
The following is the section 171 verse (1). reads: "The large government health budget is allocated a minimum of 5% (five percent) of the income budget and state spending beyond salary". Then Article 171 verse (2) reads: "Large provincial government health budget, county/city allocated a minimum of 10% (ten percent) of income budget and area shopping beyond salary".
That by the effect of the section and the verse above, potentially
characterless the constitutional rights and legal interests of the petitioners and
the underprivileged poor society as well as the passive workers
the income is not fixed and patients with chronic disease
generally, so that article and verse it needs to be ruled out and not
has a binding legal force.
4. That the constitutional right of the applicant and the less impoverished society
is able and the passive workers of income does not remain and the patients
the chronic disease is generally guaranteed by the provisions of Article 34 verse (3) UUD 1945, that: "The State is responsible for the provision of health care facilities and decent public service facilities", that is:
the view that by the enactment of Act Number 36 of the Year 2009 of
Changes to the Law No. 23 Year 1992 about Health,
Section 171 verse (3) reads: " The health of the health budget as referred to in paragraph (1) and paragraph (2) is prioritised for the benefit of the public service that is at least 2/3 (two-thirds) of the health budget in State budget and state spending and budget and regional shopping ".
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The idea that the norm is contained in Section 171 paragraph (1) and paragraph (2), contrary to Section 34 paragraph (2) Constitution of 1945 so that if Section 171 paragraph (3) applied will be generate potential losses against the petitioners and the passive workers of unfixed income and
fixed income workers and poor communities less
capable as well as the patients with chronic illnesses. generally because
the allocation of funds that is not in place and the contradiction to
Act Number 22 of 2011 on Budget and State Shopping 2012 Budget Year (vide page 18) figures 2), General Alocation Fund (DAU) and 3) Special Alocations Fund (DAK) font b Health, allocation size Rp. 3. 005. 931. 000. 000, 00. (three billion five billion nine hundred and thirty-one million rupiah) reserved for public health services.
Based on the allocation amount of the public health care fund, if
the Indonesian population now reaches the amount of 300 million people, (Rp. 3. 005. 931. 000. 000, 00.-300. 000. 000, 00.- = Rp. 105. 931. -000, 00.-1. Person/year), must be required to obtain a free health and treatment allocation allocation without discrimination, so Section 171 paragraph (3), automatically not a binding legal force (proof of Appendix I)
That to corroborate Dalil-dalil in posita (fundamentum positum) of the petitioners concerned with contradictory norm (contradictory norms) in law is a dichotomy between politics and law (law and politic), that must be distinguished by the legal hermeneutics of the law ( legal hermeneutics) and the cornerstone of the philosophy of the rule and legal norms contained in the substance of the law itself. That is why, the petitioners
cites some of the opinions of National and International legal experts such as
following this:
1. According to Prof. Mahfud MD, that first, the determinant law of politics in the sense that political activities are set up and must be subject to rules-
the rule of law. Second, the political determinant of the law because the law is the result or the crystallization of the political will that interacts and
(even) mutually interacts. Third, politics and law as the subsystem of the society are at a position whose degree of determination is balanced
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between the one with the other, because even though the law is
the political decision product, but once the law exists, all political activities
must be subject to the rules of the law. (Prof. Mahfud MD, in: Political Law in Indonesia. Jakarta: PT. Library LP3ES Indonesia, 1998. p. 8);
2. According to Prof. Soehardjo, SS., SH., that: "... between law and politics is a couple, if the law is associated with a recht, then politics is associated with
the relationship, thus the relationship of the two is: " .. recht bendichte werking des justices, nicht empires bendichte werking des recht ". (Powers of Justice and Judicial System Based on UUD ' 45, An Analysis of the Memorandum of Marriage, October 23, 1996. Papers delivered
in THE MARRIAGE OF MARRIAGE year 1996); 3. According to "Cicero, that: " ubi societa ib ius " (where there is a society, there
there is a law), law is the tool or means of regulating and maintaining
social order to achieve a society. justice in
organizes social welfare which is a rule that
is compelling and provides sanctions for those who violate it, whether
it is to regulate society or government apparatus. as a ruler
country. (Prof. H. Muchsin, SH., in: Legal and Public Policy. Publisher: Averroes Press. Print I, October 2002. P. 18-19).
4. According to "Aristotle" in "Ethica Nicomachea" and "Rheotorica", it says that: The law has a sacred duty, i.e. giving to every person he has the right to receive". (Utrecht, 1957: 20. in Prof. H. Muchsin, SH. op.cit. p. 21)
5. According to Van Apeldoorn, that " ... the purpose of the law is to organize a peaceful life of life, the law desires peace. Peace
among men is maintained by law by protecting the interests
Certain human beings are honor, independence, soul, property, and
others so against those who do not harm them. The interests of the individual and
interests of human beings are always at odds with one another.
The opposition of these interests will always lead to infighting and
chaos with each other if not set by law to create
peace. And the law retains peace by convening
the balance between the protected interests, where everyone should
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obtaining the seable may be its right ". (ibid: Prof. H. Muchsin, SH. p. 21).
6. According to Prof. Prodjodikoro, that: the law of duty guarantees the existence of certainty
the law (rechtszekerheids) in the human promisity. In the task it is versed
two other tasks, that is: must ensure justice as well as the law to be useful.
In both tasks the third task is: law on duty
polisionil (politionele taak van het recht) the law keeps in the community
not to play judge himself (eigenrichting). (Utrecht 1950: 21. in: Prof. H.
Muchsin, SH. P. 22). That is why, a legal implementation cannot
to walk properly if in its application it is not on the basis of
the fundamentals of the law are strong. (loc. cit. p. 79).
7. According to Albert von Dicey, that: there are three main elements of legal state traits
with the principle Rule of Law, namely: (1) Supremacy of Law, (2) Equality before the
Law, and (3) Constitution based on Individual -Right. (Azhary, in: Country
Law of Indonesia. Publisher: UI. Jakarta Press. The first print of 1995. P. 39)
8. According to Prof. Jimly Asshiddiqie, that: there are 12 basic principles in the state
law (Rechtstaat = The rule of Law) in the true sense, that is:
s law Supremacy of law (supremacy of law)
the equation of equality in law (equality before the law)
the principle of the Legality (due process of law)
the limitations of Power Restrictions (power limitation)
the Independent Executive Organ-Organ (independent of executive organs)
The Judicial Justice free and impartial (freedom of court by intervention)
Corrects Corrects Tata State Venture (administration court)
Corrects of the Judicial Court (constitution court)
the human rights protection act (human right protection)
the State of the Law of the Law is Democratic (democratiche rechtstaat)
the Sarana has a state goal (walfare rechtstaat)
the Transparency of Transparency and Social Control (social control and transparency)
9. As for Ronald Dworkin (1986: 3) in Law's Empire: What Is
Law...? [Ringing about Law], gamblang states that:
" ... since it matter in these different ways how judges decide case, it also matters
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what they think the law is, and when they disagree about this, it matter what kind
of sorts they are having. Is there any mistery about that? Yes, but we
need some distinctions to see what it is. Law suit always raise, at least in
principle, three different kinds of issues: issues of fact, issues of law, and the
twinned issues of political morality and fidelity. First, what happened ..? Did the
man at the lathe realy drop a wrench on his fellow worker's foot? Second, what is
the pertinent law? Does the law allow an injured worker damages from his
employer for that sort of injury? Third, if the law denies compensation, is that
unjust? If so, should judges ignorance the law and grant compensation
anyway? ... ". The first of these issues, the issue of fact, seems straight forward
enough. If judges disagree over the actual, historical events in controversy, we
know what they are regarding eing about and what kind of evidence would put the
issue to rest if it were available. The third issue, of morality and fidelity, is very
different but also familiar.
Next according to Ronald Dworkin (ibid: p. 49), issue essentials
of semantic theory (semantic theory) in interpretative law (legal
interpretative norms), in connection with a legal decision that
relates to the problem politics; Dworkin doubts using the interpretation
semantic theory called first that is: " The discussion will, I fear, take us
far from law, into controversies about interpretation that have occupied mainly
literacy scholars, social scientist, and philosophers. But if law is an interpretive
concept, any jurisprudence worth having must be built on some view of what
interpretation is, and the analysis of interpretation I construct and defend in this
chapter is the The foundation of the rest of the book. The detour is essential. The
phrase "scientific interpretation, speaking to" the scientist in the way one person
speaks to another; it pictures the scientist as straining to understand what the
data try to tell him. We can dissolve the metaphor and speak accurately, we
might well think, only by eliminating the idea of purpose from our final decription
of the scientific process ".
Already since the beginning of the concept of Dworkin ' thought, may be specially digested
regarding the legal interpretation in "semantic theory", which advocates that
a jurist should be sigap to see the legal fact simply (the
plain fact view of law) and do not Wrong interpretation that can result.
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dilemmas and dichotomy, as it is bluntly expressed the thing
called the second : "... since the earlier in this chapter I described what I
called the" plain fact view of law ". This holds that law depends only on matters of
plain historical fact, that the only sensible person about law is empirical
. ... ...
what I called theoretical variables is illusory and better understood as
argument not about what law is but about what it should be. The sample cases
seem counterexample to the plain fact view; the argument in these case seem to
be about law, not morality or fidelity or repair. We must therefore put this
challenge to the plain fact view: why does it happen that appearance is here an
illusion? Some legal philosophers offer a suprising answers. They say that
theoretical anxiance about the grounds of law must be pretense because the
very meaning of the word "law" makes law depend on certain specific criteria,
and that any lawyer who rejected or challenged those criteria would be speaking
self-contradictory nonsense. *)
In a semantic perspective called second at the top, according to Ronald Dworkin:
WHAT IS LAW ..? (Havard University Press, Cambridge, 1986). Hal. 6-31),
stating that: "The Semantic Theory of Law is the sample case seems
counterexamples to the plain fact view; the arguments in these case seems to be
about law, not morality or fidelity or repair. "We must therefore put this challenge
to the plain fact view: why does it happen that appearance is here an illusion" ..?
Translation (red): " The theory of the legal grammar (semantic theory of law)
is as one example of a case used for refutation
to a particular problem that should be seen in the first place.
simple (plain fact view); the difference of opinion in this case is
concerns about legal issues, not about morality or truth, or
perfection. Therefore, we must place this conflict for
see the problem simply; why it appears and is adamant
only for the intent and purpose of misleading " ..?
That based on the nine principal minds of those experts at
above, is an integral part with the application and implementation of
a law that is enforced in a mandatory society
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meets the elements and norms that enable the system of affirmation
the law for all people's interests without exception.
That based on the descriptions it has been clearly described and
transparently to Posita in the application of the "material test" (judicial review) which
is submitted by the Applicant, with this please to the Chairman
Assembly of Justice of the Constitutional Court (Your Excellency Panel of the Court of Justice of the Court of Justice)
Constitution) which handles and examines the case of a quo, sudi and deulate
gives the verdict in the petitum as follows:
1. Accept and grant the applicant's request;
2. Declaring Article 170 paragraph (3), Section 171 paragraph (1) and paragraph (2), Article 173
paragraph (1) of the Law Number 36 of 2009 on the Change of the Above
Act No. 23 of 1992 on Health contradictory
against Section 28H verse (1) and paragraph (3), Section 34 of the paragraph (2) and paragraph (3)
The Basic Law of the Republic of Indonesia in 1945;
3. Declaring Article 170 paragraph (3), Section 171 paragraph (1) and paragraph (2), Section 173
paragraph (1) of the Law Number 36 of 2009 on the Change of the Upper Amendment
Law No. 23 of 1992 on Health does not have
the power of the law tying;
4. It ordered its restoration in the News of the Republic of Indonesia.
However, if the Supreme Court of the Court of Justice of the Constitutional Court argued
another, then it is implored a legal ruling that is fair (ex aequo et bono).
[2.2] weighed that to prove its control, the applicant
submitted a written proof that was given a proof of P-1 proof up to the proof P-29,
and Appendix 1 to the Annex 2 as follows:
1. Proof of P-1: Photocopy Act No. 36 of the Year 2009 of
Health;
2. Evidence P-2: Photocopy of Evidence Payment;
3. Evidence P-3: PGI Cikini and Tata Hospital Payment Photocopies of PGI Cikini Hospital and Tata
Hospitalization For Patients Who Are Undergoing Treatment;
4. Proof P-4: Photocopy Letter Introduction From Sudinkes/Puskesmas Kelurahan
Kramat Jati for a referral to RT/RW Côte d' Ivoire;
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5. Proof P-5: Photocopy Letter Introduction From RT/RW Ivory Road
for the reference to SKTM/Gakin ' s concern to Stone Kelurahan
Ampar-Kramat Jati;
6. Evidence P-6: Photocopy of the Letter of Attraction from the Batu Ampar Kelurahan for
referral medical treatment at PGI-Cikini RS against the patient
Januardo Capriano;
7. Evidence P-7: Photocopy of the Jakarta Health Sudin Reference Letter
East of Puskesmas Kramat Jati for patient care
Januardo Capriano for treatment at PGI Cikini RS;
8. Evidence P-8: Photocopy Report Results Verification Report Sudin Health Jakarta
East of Puskesmas Kramat jati about SKTM/Gakin for
medical treatment of patient Januardo Capriano in PGI RS
Cikini;
9. Evidence P-9: Photocopy of the Maturity Organizer.
Local Health Maintenance on Reduced Cost
Treatment of 50% for patient Januardo Capriano's patients at RS
PGI Cikini;
10. Proof P-10: Photocopy Letter Statement from parents to Dinkes
Province of DKI Jakarta Unit Organizing Guarantee Guarantee
Regional health on demand for leniation
care for patient Januardo Capriano's patients;
11. Proof P-11: Photocopy Of The Payment Kwittance As Well As The Details Of The Contribution Fee
Patient Care Act of Capriano to PGI Cikini Hospital
from the beginning of the treatment to the exit of the hospital;
12. Proof P-12: Photocopy Letter Introduction from PGI RS Cikini Hospital on
Request for Maintenance Costs against the patient
Januardo Capriano to Dinkes DKI Jakarta cq Kasie
Jamkesda DKI Section SKTM/Gakin;
13. Proof P-13: Photocopy Letter Introduction from PGI RS Cikini Hospital on "Traveling
Dialysis" for patient Januardo Capriano to the Home Side
Another ill will receive a blood washing patient's transfer
(Hemodialis);
18
14. Proof P-14: Photocopy of Medical Record Report Letter (Medical Record
Report) from PGI Hospital Cikini Hospital about "Traveling Daialysis"
for patient Januardo Capriano's patient;
15. Proof P-15: Photocopy of the Return Letter from PGI Hospital Cikini
for outpatient patients to Januardo Capriano was equipped
with a brief medical report;
16. Evidence P-16: Photocopy Letter Introduction to the blood wash from the RSU party UKI
Cawang for patient outpatient to Patient Januardo
Capriano;
17. Proof P-17: Photocopy Letter Reference Letter from Stone Party
Ampar to the RSU UKI Cawang for leniation of charges
against patient Januardo Capriano;
18. Proof P-18: Photocopied Letter of Ruang Sudin Jakarata East of Puskesmas
Kramat Jati to the RSU UKI Cawang about SKTM/Gakin
against patient Januardo Capriano's patient;
19. Evidence P-19: Photocopy of the Letter from the RSU UKI Cawang on
SKTM/Gakin against patient Januardo Capriano to Sudin
Provincial Health of DKI Jakarta;
20. Proof P-20: Photocopy of the Letter from Sudinkes Province of DKI-JakartaUnit
Organizing of Regional Health Maintenance
on SKTM/Gakin against patient Januardo Capriano's patient;
21. Proof P-21: Photocopy of the RT/RW Attraction for the business
SKTM/GAKIN leniations of blood washing treatment
(Hemodialis) to the RSU UKI Cawang against the patient
Januardo Capriano;
22. Proof P-22: Photocopy of the Rujukian Letter of Blood Washing (hemodialis) from
RSU UKI Cawang to Puskesmas Kramat Jati for patients
Januardo Capriano;
23. Proof P-23: Photocopy of a Letter of Persuasion To Blood Washing Patients (Hemodialis)
from the Puskesmas Kramat Jati for the RSU UKI Cawang against
patient Januardo Capriano;
19
24. Evidence P-24: Photocopy of the Letter of Attraction from the Batu Ampar-Kramat Kelurahan
Jati to the RSU UKI Cawang for leniation of charges
treatment for patient Januardo Capriano's patient;
25. Proof P-25: Photocopy Letter of the Statement of not being able from the patient ' s parents;
26. Proof P-26: Photocopy of Sudinkes Province of DKI cq Organizing Unit
Regional Health Maintenance Guarantee of 25% to
RSU UKI Cawang;
27. Proof P-27: Photocopy Law Number 40 of the Year 2004 on System
National Social Security;
28. Proof P-28: Photocopy of Minister of Health Regulation Number
903 /MENKE/PER/V/2011 on the Implementation of Implementation
The Public Health Guarantee Program;
29. Proof P-29: Photocopy Of The Menterihealth Regulation Number 416 /MENKES/
PER/II/2011 On The Tarif Health Care For Attendees
PT. Askes;
30. Appendix 1: Photocopy General Explanation of Law Number 22
Year 2011 on APBN of the Budget Year 2012;
31. Appendix 2: Photocopies clipping the Kompas newspaper about the drug material not
independent, hospital charges of payment commitment, and benefits
participants are up.
[2.3] It is balanced that to shorten the description in this ruling,
everything that happens in the trial is quite appointed in the event news
the trial, which is one unbreakable unity with
this verdict.
3. LEGAL CONSIDERATIONS
[3.1] Draw that the intent and purpose of the applicant ' s plea
is the constitutionality testing of Article 170 paragraph (3), Section 171 paragraph (1) and paragraph
(2), as well as Article 173 paragraph (1) Act Number 36 Years 2009 on
Health (State Gazette of the Republic of Indonesia 2009 number 144,
Additional Gazette of the Republic of Indonesia Number 5063, subsequently called
Act 36/2009) which stated:
20
paragraph 170 paragraph (3) Act 36/2009
"Health financing sources are from the Government, local government,
society, private and other sources".
the paragraph 171 paragraph (1) Act 36/2009
"The government health budget is allocated a minimum of 5% (five
percent) of the income budget and state spending beyond salaries".
paragraph 171 paragraph (2) Act 36/2009
"Largegovernment health budget district, county/city
allocated a minimum of 10% (ten percent) of the revenue budget and
region shopping outside salary ".
paragraph 173 paragraph (1) Act 36/2009
" Alocation of private-sourced health financing as
referred to in Article 170 of the paragraph (3) is mobilised through the social security system
national and/or commercial health insurance ".
Against Section 28H (1) and paragraph (3), as well as Article 34 of the paragraph (2) and paragraph (3)
The Basic Law of the Republic of Indonesia in 1945 (next
called the Constitution of 1945) stated:
The passage of Article 28H of the paragraph (1) Constitution of 1945
"Everyone is entitled to live and inner life, residence, and
get a good and healthy life environment as well as entitled
health care."
pursuant to Article 28H paragraph (3) of the 1945 Constitution
"Everyone is entitled to a social security that allows for development
in whole as a dignified human being".
The passage of Article 34 of the paragraph (2) of the 1945 Constitution
"The State develops a social security system for the entire people and
empowers a weak and incapable society in accordance with
the dignity of humanity".
pursuant to Article 34 paragraph (3) of the 1945 Constitution
"The State is responsible for the provision of health care facilities and
proper public service facilities".
21
[3.2] A draw that before considering the subject's subject,
The Constitutional Court, next called the Court, will consider
first things as follows:
a. The Court's authority to prosecute the a quo;
b. Legal standing (legal standing) the applicant to submit
a request;
Against both of those above, the Court argued as
following:
The Court's authority
[3.3] Weighing that according to Article 24C paragraph (1) of the Constitution of 1945, Article 10 of the paragraph
(1) letter a Law Number 24 of 2003 on the Constitutional Court
as amended by Law No. 8 of the Year 2011 on
Change Under the Law No. 24 of 2003 on the Court
Constitution (State Sheet) 2011 Republic of Indonesia Number 70,
Additional Gazette Republic of Indonesia Number 5226, subsequently called
MK bill), and Article 29 paragraph (1) letter a Law No. 48 Year 2009
on the Power of Justice (Sheet) Republic of Indonesia in 2009
number 157, additional Gazette of the Republic of Indonesia No. 5076), incorrectly
one Constitutional authority of the Court is courting at first level
and the last of its verdict is final to test the Act
against the Basic Act;
[3.4] Weighing that plea a quo is a testing plea
constitutionality of the in casu Act Article 170 paragraph (3), Section 171 paragraph (1),
and paragraph (2), as well as Article 173 paragraph (1) Act 36/2009 against Section 28H of the paragraph (1), and
paragraph (3), as well as Article 34 of the paragraph (2), and paragraph (3) of the 1945 Constitution, therefore according to
the Court, the Court of Justice to prosecute a quo;
Legal standing (legal standing) the applicant
[3.5] weighed that under Article 51 of the paragraph (1) MK Act as well as
the explanation, The applicant in Testing of the Act against the Invite-
22
The Basic Invite is those who consider the rights and/or authority
the constitutionality given by UUD 1945 is harmed by the expiring
The act of the required testing, that is:
a. Individual citizens of Indonesia (including groups of people
have common interests);
b. the unity of the indigenous law society as long as it is alive and in accordance with
the development of the society and the principle of the Republic of the Republic of Indonesia
which is set in Undang-Undang;
c. the public or private legal entity; or
d. state agencies;
Thus, the applicant in the Act Testing against the 1945 Constitution
must explain and prove first:
a. The position of the applicant is referred to in Article 51
paragraph (1) of the MK Act;
b. constitutional rights and/or constitutional authority granted by UUD
1945 resulting from the enactment of the required Act
testing;
[3.6] weighed also that regarding the loss of rights and/or authority
constitutionally referred to Article 51 paragraph (1) of the MK Act, the Court since
Putermination Number 006 /PUU-III/2005, dated 31 May 2005, and Putermination
No. 11 /PUU-V/2007, September 20, 2007, and the verdict
further has been established on the existence of 5 (five) terms that must be met,
that is:
a. the rights and/or constitutional authority of the applicant given by
Constitution of 1945;
b. the rights and/or constitutional authority by the applicant is considered
aggrieved by the enactment of the testing Act;
c. the rights and/or constitutional authority should be
specific. (specifically) and actual or at least any potential according to
reasonable reasoning is certain to occur;
23
d. there is a causal relationship (causal verband) between the rights loss and/or
the constitutional authority is referred to by the Act that
is moveed to test;
e. It is possible that with the request of a request, then
the rights and/or constitutional rights losses such as the postulate not
will or no longer occur;
[3.7] Draw that based on the description as such in
paragraph [3.5] and paragraph [3.6] above, further the Court will consider the legal standing (legal standing) The applicant in
the request a quo as follows:
That the applicant is an individual of the Indonesian nationals
that Consider the constitutional right to be harmed by the enactment of the provisions
which is being asked for testing. According to the applicant with the enactment of article a
quo, resulting in a debate over public health services, shrinking
poor underprivileged people, the income passive workers are not
remain, and the patients with chronic diseases due to income
fitting hard to obtain optimal health care according to principle
fair and civilized humanity as well as equality before the law.
Based on the loss of rights The applicant ' s constitutional constitution, according to
the Court of potential The applicant's constitutional rights loss and
there is a causal link between the loss of the applicant
that, and the possibility of being granted a request, a loss
the constitutional of the The applicant will not or may no longer occur. As such,
The applicant has a legal position to apply for a quo;
[3.8] A draw that is due to the competent court of prosecuting
a a quo plea, the applicant has a position law (legal standing)
to apply for a quo, then the next Court will
consider the subject;
24
The subject of a request
Court opinion
[3.9] A draw that before considering the subject,
The court needs to quote Article 54 of the MK Act stating, " The Court
The Constitution may request the captions and/or meeting treatises in respect of
with the application being examined to the Consultative Assembly
People, DPR, Regional Representative Council, and/or the President ", due to the section
using the word "can" then the Court does not have to hear
Assembly caption The People's Consultative Assembly, the House of Representatives, the Council
the Regional Representative, and/or the President in the testing of an
Act. In other words, the Court may request or not request
the captions and/or meeting treatises with respect to the application
are being examined to the People's Consultative Assembly, House of Representatives
People, Council The Regional Representative, and/or the President, depends on the urgency
and its relevance. Because of the legal problems in the a quo
clearly, the Court sees no urgency and relevance for
requesting the description and/or meeting treatises of the People's Consultative Assembly,
House of Representatives People, House House of Representatives, and/or President,
so that the Court directly dismay a quo;
[3.10] A draw that the Court after examining the same witness
requests for the applicant, and the evidence which was submitted by the applicant
The court argued as follows:
[3.11] A draw that in the applicits of the applicant postulate Article 170
paragraph (3), Section 171 paragraph (1) and paragraph (2), Section 173 paragraph (1) Act 36/2009
contrary to Article 28H of the paragraph (1) and paragraph (3), as well as Article 34 of the paragraph (2) and
paragraph (3) UUD 1945. According to the applicant, if the implementation of the norms a
quo is maintained, resulting in the debate of public health care,
25
characterless poor society, and passive workers
non-income marginally, as well as patients with disease
chronic generally.
Against the Applicant's postulate, The Court argued that although
the state is responsible for protecting and fulfilling the rights of citizens to
a prosperous life of birth and inner life, getting a good and healthy life environment
and obtaining health care, But every citizen, too,
shoulder the responsibility of him. To live, to sustain
life and development of life through healthy ways of life,
the self-preservation of self-preservation and the people who are in charge
in order for the right of life to be deprived of the life of the world. by someone else and not missing
by the absence of his own responsibility for his own life rights [vide Putermination
Court Number 11-14-21-126 and 136 /PUU-VII/2009 dated March 31, 2010].
Therefore, if associated with a budget source, budget allocation and
system of financing mobilization of health services
as set out in the provisions of the tests, so
does not result in any person's right to live, maintain life and
a dignified life development, gain well,
health care as well as social security to be lost or neglected. Again
also, although Article 28H (1) and verse (3) of the Constitution of 1945 constitute one
fundamental human rights provisions but the quantity of presentation
the health budget allocation is not mandated specifically in the UUD 1945
as with the education budget that is explicitly mandated
at least 20% of the State Budget and Shopping Budget (APBN)
and Regional Revenue and Shopping Budget (APBD).
Thus the 1945 Constitution does not require an Act-forming to
allocate healthcare budgets in a specific presentation but
adjusted to the country's financial capabilities and priority scale
26
construction. Therefore, according to the Court to fulfill human rights
humans in the field of health and social security, the constitution imposes
the responsibility to the state with no disregard for any responsibility
of the citizens. In particular, the country meets its responsibilities with
attempting to provide facilities and services as well as the ability
of the country's finances. On the other hand, each citizen also has an obligation and
a responsibility in keeping and maintaining his health. Thus
the invocation of the Applicant does not excuse the law;
[3.12] It is balanced that if the applicant has felt aggrieved
its constitutionality by the enactment of the provisions of a quo due to the allotment of the applicant fund
in APBN/APBD of less than 5% as set in Act 36/2009,
so that the public service system is stunted, health care is against
poor society, non-income marginal passive workers,
as well as the patients with chronic illnesses generally and specifically those
The applicant's child is not related to the constitutionality of the norm
but in relation to the implementation of the norm which is not
the Court's authority to control it;
[3.13] A draw that based on all legal considerations above,
according to the Court, the applicant ' s plea is unwarranted according to the law;
4. KONKLUSI
Based on the assessment of the facts and laws as described in
above, the Court concluded:
[4.1] The court is authorized to prosecute a quo;
[4.2] The Petitioners have legal standing (legal standing) for
applying for a quo;
[4.3] Dalil-dalil Applicants are in the subject of unwarranted legal applications;
27
Based on the Basic Law of the Republic of Indonesia Year
1945, Act No. 24 of 2003 on Constitutional Court
as amended by Law No. 8 of 2011 on
Changes To The Law Number 24 Of 2003 On The Court
Constitution (sheet Of State Of The Republic Of Indonesia Of 2011 Number 70,
Additional Of The Republic Of Indonesia State Number 5226), And Invite-
Invite Number 48 Years 2009 on the Power of Justice (State Sheet
Republic of Indonesia of 2009 Number 157, Additional State Sheet
Republic Indonesia Number 5076);
5. AMAR RULING
PROSECUTING,
States rejects the applicant's plea for the whole;
So it was decided at a meeting of the Judges by nine
The Constitutional Judge is Moh. Mahfud MD as the Chief of the Members,
Achmad Sodiki, Hamdan Zoelva, M. Akil Mochtar, Ahmad Fadlil Sumadi, Harjono,
Muhammad Alim, Maria Farida Indrati, and Anwar Usman, respectively as
Members, at on Wednesday, respectively. date of twenty, February, year two thousand
thirteen, and spoken in the Plenary Session of the Constitutional Court is open to
general at on Thursday, twenty-eighth date, February, year two
thousand thirteen, finished pronounced at 14:35 WIB, by eight Judges
Constitution is Moh. Mahfud MD as Chairman, Hamdan
Zoelva, M. Akil Mochtar, Ahmad Fadlil Sumadi, Harjono, Muhammad Alim, Maria
Farida Indrati, and Anwar Usman, respectively as Member, with
accompanied by Ida Ria. Stockpile as a Penitera Panitera, and attended by
28
The applicant, the Government or the representing, as well as the House of Representatives
or the representative.
CHAIRMAN,
ttd.
Moh. -Mahfud MD.
MEMBERS,
ttd.
Hamdan Zoelva
ttd.
M. Akil Mochtar
ttd.
Ahmad Fadlil Sumadi
ttd.
Harjono
ttd.
Muhammad Alim
ttd.
Maria Farida Indrati
ttd.
Anwar Usman
PANITERA REPLACEMENT,
ttd.
Ida Ria Tamheap
