Reject the Omnibus Law Health Bill which is the result of an evil conspiracy between the government and the DPR which deprives the people of their right to health and threatens people's safety and state sovereignty

Citizens Coalition for Fair Health Access Press Release

Jakarta, 27 June 2023 — The government and DPR agreed to bring the Omnibus Law Health Bill to a plenary session to be passed into law, even though many community groups asked to stop discussion of the Health Bill. This is because the drafting of the Health Bill violates the constitutional mandate and the Law on the Establishment of Legislative Regulations which requires meaningful public participation in the drafting and discussion of the law, and the substance of the bill has the potential to deprive the people of their right to health services.

Regarding the agreement between the Government and the DPR to immediately pass the bill, the Civil Society Coalition for Fair Health Access stated that it REJECTS the Omnibus Law Health Bill because the bill is the result of an evil conspiracy between the government and the DPR. The Health Bill not only has the potential to rob people of their right to health, but also threatens people's safety and state sovereignty. Our assessment is based on the following indications.

1. The government and DPR have created the Omnibus Law Health Bill in a way that violates the law and the Constitution. The government and DPR created and discussed the omnibus law Health Bill by eliminating meaningful public participation as mandated by the law and Constitutional Court decision no. 91/PUUXVIII/2020 regarding meaningful public participation. The government and the DPR want to force the ratification of the bill, while the public is still looking for the latest draft of the bill and therefore do not yet know its contents. The text of the latest bill was deliberately hidden and kept away from public reach. The government and DPR have only presented the February version of the bill, which according to the government is out of date.

When various community groups expressed criticism based on the contents of the outdated version of the Bill, the government responded by stating that the public did not understand and had not read the text of the latest Bill which had undergone many changes. How can the public read, know and understand the contents of the latest bill text if the government and the DPR block access to the latest bill text? Until the bill was agreed to be ratified, the latest text of the Health Bill had never been officially opened to the public by the government and the DPR. The public's voice for the government and the DPR to stop discussing the bill and improve the discussion process by meaningfully involving the participation of all components of society, was completely ignored.

1. The OBL Health Bill is just a blank check for the people. With the OBL Health Bill, the Government and the DPR have made many promises to the community to prioritize the health budget, provide health services for all citizens throughout Indonesia down to the villages, including 3T areas, increase citizens' access to quality health services, overcome inequality, and improve the quality of health services, including the quality of human resources, supporting facilities and supplies. However, the promises outlined in the bill are basically: check blanks created by the government and the DPR for the people. Because, at the same time, the government and the DPR also agreed to eliminate the provisions regarding minimum budget allocations (mandatory spending) in the Health Bill. Article 171 paragraphs 1 and 2 of Law no. 36 of 2009 concerning Health regulates the health budget allocation at a minimum of 5% of the APBN and 10% of the APBD excluding salaries and prioritizing public services. By eliminating the minimum budget for health, the allocation of the health budget is left entirely to determine the size of the budget to the government. So the health budget in the APBN can change every year according to the government's political priorities.

The abolition of the minimum budget allocation for health by the government and the DPR is accompanied by various misguided excuses as justification, including:

• Mandatory spending does not follow performance-based budgeting rules and money rules follow the program
• Not in accordance with the budget stages of national development planning and budgeting
• Too much shopping of a nature mandatory resulting in APBN/APBD capacity and fiscal space becoming narrow and inflexible.
• The health budget is a basic need
• Percentage basis mandatory spending not yet based on adequate research.

These reasons show the impartiality of the government and the DPR towards the interests of poor groups who are unable to fulfill their own basic needs. These various excuses are also misguided by the government and the DPR because they think mandatory spending not accompanied by the creation of good programs or planning in accordance with the stages of national development planning. The government admits that the health budget is a basic need, but ironically the government also argues that mandatory spending making fiscal space narrow and inflexible. This once again shows the government's impartiality towards the interests of poor groups, vulnerable groups, people with disabilities and residents in 3T areas. The minimum budget for health was created to maintain the government's commitment to fulfilling the people's right to health services and also to overcome inequality. In its absence mandatory spending, the government can freely make the health budget less than 5% to fulfill other political priorities, as the government has done during the pandemic where subsidies for poor groups in the health sector were removed, while the government can spend a massive budget to pay for tourism campaigns involving influencers.

By eliminating the minimum budget allocation/mandatory spending, then the budget to fulfill the people's right to health services is threatened with being reduced/cut or even not fulfilled because its fulfillment depends on the kindness of the authorities. In fact, various studies show that many regional health services depend on this budget. Starting from providing medicine, providing nutritious food to prevent stunting, assistance with BPJS membership fees, incentives for health workers, health education programs, subsidies for hospitals, and others. With a minimum budget for health alone, equitable distribution of health services is still far from expectations, especially if the minimum budget is abolished. Even with provisions regarding minimum budgets, there are still many local governments (37.08% in 2020) that do not comply, especially if these provisions are removed.1 CISDI noted that with mandatory spending, people still have to spend up to 30-35% of their total costs to get better service. That causes only people who can afford to spend money on quality health services for themselves.

Based on the Abuja Declaration of 2001, it is recommended that each government in each country allocate 15% of the national budget. This is stated in WHO's Health Financing Working Paper entitled "Spending target for health: no magic number". Even in Health Financing Guidance No. 9 WHO in 2020 states that the health budget target is the same or more than 15% of the national budget before each year's revision. This of course raises a big question, What is the underlying reference for the Commission IX Health Bill Committee to remove the figure for the size of the health budget mandate in the bill?

The government also argues that the basis is a percentage amount mandatory spending not yet based on adequate research. Even though various studies show, mandatory spending impact on the health status of mothers and children.

CISDI noted that in 2010, WHO published a journal which stated that people living in countries that allocate a health budget of 5-6% of GDP have an easier time accessing health services. In line with WHO, Resilient and Responsive Health systems (Resyst), which is a consortium of international researchers in the field of Health policy funded by the British government published a similar study in 2017. Resyst stated that a Health budget allocation of more than 5 percent of GDP is needed to be able to provide good services for mothers and children. World Bank data shows that countries that spend more on health care tend to have a higher average life expectancy of up to 80 years..2 This is in line with WHO research (2014) which shows that increasing the realization of health fund allocations has a positive relationship to the level of public health. 3

1. The OBL Health Bill punishes poor people, vulnerable groups - including women and children, people with disabilities, and people in 3T areas for crimes that have been committed by the government and the DPR. The minimum budget for health was created to maintain the government's commitment to fulfilling the people's right to health services and also to overcome inequality. By removing the minimum budget allocation (mandatory spending) for health, the government and the DPR want to wash their hands of the obligation to fulfill the people's right to health and impose the financing of health services on the community, village governments, regional governments and the private sector through various schemes, including: use of BPJS funds which incidentally come from public contributions, use of village funds, liberalization of the health sector and expansion of commercialization of health services, increasing the role of private insurance, and others. Instead of easing the burden on the people, the government and the DPR actually want to increase the burden on the people by taking away citizens' rights to the health budget, citizens' rights to village funds, citizens' rights to subsidies to obtain health services, and so on. The impact is that poor groups, vulnerable groups – including women and children, people with disabilities and people in 3T areas will find it increasingly difficult to gain access to health services.  In the end, it can be said that by eliminating/removing the provisions regarding minimum budget allocations for health, the government and the DPR want to punish the people for crimes that have been committed by the government and the DPR, namely: poor governance which has an impact on the accumulation of unproductive debt, and rampant corruption that occurs in all sectors, including the health sector.
2. The OBL Health Bill is an instrument of the Government and DPR for the liberalization of the health sector and the expansion of privatization/commercialization of health services. This can be seen from the articles regarding the utilization of foreign doctors and articles related to the issuance of business permits for health service facilities. With the OBL Health Bill, the entry of foreign investment and doctors is made easier - including for Special Economic Zones, under the pretext of speeding up the production of doctors. The bill would change health care (healthcare) into the health industry (health industry). The impact is that health services become increasingly expensive and increasingly marginalize poor groups, vulnerable groups, people with disabilities and communities in 3T areas. These groups are increasingly losing access to affordable and quality health services. Socioeconomic inequality will also increase.
3. The OBL Health Bill provides room for ethical violations by medical personnel and/or health workers and has the potential to increase malpractice in health services in Indonesia. The bill (article 304) regulates the enforcement of professional discipline for medical personnel and health workers. However, the bill does not regulate the enforcement of professional ethics. In this case the government (Minister of Health) equates professional discipline with professional ethics. Even though professional ethics and professional discipline are two different things. Professional discipline is provisions regarding the practice of medical personnel/health workers (usually in the form of service standards), while professional ethics are provisions regarding right and wrong in the implementation of a profession, which apply to a particular profession (usually in the form of a code of ethics). The elimination of professional ethics in the implementation of health services will clearly have an impact on reducing health service quality standards. Because violations of professional ethics will trigger violations of professional discipline and also violations of the law.4 This will lower the standard of health services and could even be worse than that, namely increasing malpractice in health services in Indonesia.

Apart from the potential for ethical violations and increasing malpractice in health services in Indonesia, There are several other issues related to the health profession, including the following:

1. Utilization of medical personnel and foreign national health workers are excluded from participating in competency evaluations only because they have a competency certificate and have practiced for at least 5 years abroad. This will give rise to the potential for foreign medical personnel or health workers to have competencies that meet domestic standards. This will also pose a potential threat to patient safety.
2. A Registration Certificate (STR) which is valid for life is stated in Article 260 of this Bill. If we refer to provisions in other countries, the closest in Singapore or Malaysia, there are no registration provisions that are valid for life. This will also pose a potential threat to patient safety.
3. There are no regulations related to the Hospital Supervisory Board, whereas in Law no. 44 of 2009, the existence of the Hospital Supervisory Board (BPRS) is very important to supervise and maintain the rights and obligations of patients as well as implementing hospital ethics.
4. The role of professional organizations. Regulations related to health professional organizations that are not single bar, become multibar in Article 311. In fact, in the draft bill resulting from the DPR Baleg, it is stated regarding the existence of professional organizations that are single bar. There has been Constitutional Court Decision Number 82/PUU-XIII/2015, which in consideration of number 3.11.1 in the Constitutional Court Decision aquo, among other things, states "With only one Professional Organization for one type of health worker, it will be easier for the Government to carry out supervision of the profession of Health workers in question." MHKI views that the Bill Working Committee is mistaken in prioritizing the right to associate in Article 28 of the 1945 Constitution which can only be exercised by a group of individual people, while the right to obtain quality health services in Article 34 paragraph (3) is a fundamental right of all people. When the existence of more than one professional organization creates the potential for more than one standard in service, this will potentially threaten patient safety. The 1945 Constitution of the Republic of Indonesia as a result of amendments to Article 1 paragraph (3) states explicitly that the State of Indonesia is a legal state. The dream of a rule of law is closely related to the concept of 'rechsstaat' And 'the rule of law'. According to Julius Stahl, the concept of the rule of law (rechsstaat) includes four important elements, namely: Protection of human rights, Division of powers, Government based on law, and State administrative justice. The division of power here is the spirit of reform, that power is not absolutely vested in the government, so that some government authorities are delegated to several agencies and institutions to work together to create order. The existence of professional organizations has been in synergy with the government, as proven during the pandemic. This bill clearly appears to eliminate the roles of health professional organizations which have been carried out based on the mandate of the lex specialis law.
5. The OBL Health Bill opens a loophole for collecting information on genetic data (genome) of the Indonesian population which is vulnerable to misuse. Article 346 (7) of the OBL Health Bill provides space for Health Information System Operators to process health data and information outside the territory of Indonesia. This article opens a loophole for collecting information on genetic data (genome) of the Indonesian population, which is vulnerable to misuse. In the explanatory part of the verse, it is stated that the transfer of health data and information is for the purposes of overcoming outbreaks, epidemics, the Hajj pilgrimage, material transfer agreements, and international cooperation in the health sector. This data transfer conflicts with Law Number 27 of 2022 concerning Personal Data Protection (UU PDP). This misuse of genetic data on the Indonesian population clearly endangers the sovereignty and safety of the nation and state in the future.  Moreover, with the opening of investment, medical personnel and foreign health workers in Indonesia, collecting genetic (genome) data will be made even easier. If only NIK data is available, the government can buy and sell it, let alone the genetic data of its citizens. Looking back at the phenomenon, health data leaks in Indonesia are not something new. In May 2021, BPJS Health data that was leaked and sold on online forums was suspected to have come from the health service administration body, BPJS Health. This incident was followed by the leak of 3.2 billion PeduliLindungi user data in November 2022, showing the government's weak supervision and commitment to protecting citizen data.

Article 339 states that the storage and management of materials in the form of clinical specimens and biological materials, information content and data for the long term must be carried out by biobanks and/or biorepositories which can be organized by Health Service Facilities, educational institutions, and/or Health research and development institutions, whether owned by the Central Government, Regional Government or private sector. The role of the private sector in regulating this article will have the potential for industrialization and commercialization of data management, biological materials, and even genetic engineering in the future.  Article 349 states that data and information can be transferred outside the territory of Indonesia for specific purposes. Once again, considering the fact that several cases of health data leaks occurred, leaks even occurred at the Ministry of Health and BPJS Health institutions, the lack of clarity in data security guarantees has created doubts among many parties regarding the protection of their personal data. Article 342 states that anyone who discriminates against the results of someone's genetic examination and analysis will only be subject to administrative sanctions. In the Constitutional Court Decision Number 17/PUU-XIX/2021 on the Basis for Considering [3.16] it is emphasized that punishment in Article 32 in conjunction with Article 48 of the ITE Law is the protection of a person's rights to the information or electronic documents they possess. The Constitutional Court considers that guaranteeing the security of personal data and guaranteeing the exchange of information in a valid and honest manner are preconditions for the fulfillment of the constitutional rights of all citizens.

1. The OBL Health Bill was drafted haphazardly and carelessly. The substance of the OBL Health Bill, which was drafted hastily and secretly, shows the haphazard and careless work of the Government and DPR. This can be seen, among other things, from the following things:

• Contains an incorrect definition of an individual. In Article 1 (38) it is stated: Every person is an individual, including corporations. In this article, corporations which are legal entities are equated with individuals. This is clearly wrong.
• The articles in the Health Bill in substance violate, are not in line with or are contradictory to the principles of implementing the Health Law itself, such as equality, ethics and professionalism, protection and safety, respect for rights and obligations, justice, non-discrimination, participatory, public interest, legal awareness, state sovereignty, legal order and certainty
• There are crucial things regulated in the Health Bill without any definition, such as the Assembly, health support staff, health support staff, and others.
• The bill contains articles that require individuals to carry out things that are the state's obligations. Article 5 (1) of the Bill states: Every person is obliged to: a. realizing, maintaining and improving the highest level of public health. In Article 5 (2) it is stated: Implementation of the obligations as intended in paragraph (1) letter a includes: a. Individual Health Efforts; b. Public Health Efforts; and c. Health-oriented development.
• In Article 314 paragraph (6) it is stated "In an emergency situation, the Central Government and Regional Governments can establish and implement special policies for the procurement and utilization of Pharmaceutical Preparations, Medical Devices and other Health Supplies." This could be interpreted as meaning that the government has the discretion to determine whether pharmaceutical preparations or medical devices that have not been clinically tested are safe for use on humans.

Considering the things mentioned above, there are only two choices that the Government and the DPR can make regarding this OBL Health Bill, namely (1) Stop the ratification of the Bill which threatens the safety of the country and the people and review the entire substance of the Bill by involving all stakeholders in accordance with the orders of the Law, or (2) Cancel the Bill because it will do more harm to the people and the country than the benefits.

Civil Society Coalition for Fair Health Access

1. 1. Indonesian Legal Aid Foundation (YLBHI)
   2. The Institute for Ecosoc Rights (Ecosoc Institute)
   3. IM57+ Institute
   4. Center for Legal and Social Justice Studies (LSJ) FH UGM
   5. Indonesia Corruption Watch (ICW)
   6. Transparency International Indonesia
   7. Report Covid-19
   8. The PRAKARSA
   9. Foundation for Strengthening Indonesian Community Participation, Initiatives and Partnerships (YAPPIKA)
   10. Center for Indonesian Law and Policy Studies (PSHK)
   11. Center for Human Rights Law Studies (HRLS) FH UNAIR
   12. Center for Human Rights Studies (PUSHAM) UII
   13. Indonesian Down Syndrome Care Foundation (YAPESDI)
   14. Community Legal Aid Institute (LBHM)
   15. SIGAB Indonesia
   16. Community Monitoring Forum for Inclusive Indonesia with Disabilities (FORMASI Disabilities)
   17. Indonesian Spinal Muscular Atrophy Community.
   18. Indonesian Disabled Movement for Equality (PerDIK)
   19. Institute for Community Studies and Advocacy (ELSAM)
   20. Trade Union Rights Center (TURC)
   21. Kurawal Foundation
   22. Movement for the Welfare of the Indonesian Deaf (GERKATIN)
   23. Indonesian Muscular Dystrophy Care Foundation (YPDMI)
   24. Indonesian Revolution and Education Foundation for Social Inclusion (REMISI)
   25. KASIH RUMALA Group
   26. Ohana Indonesia
   27. TERALA
   28. SAPDA
   29. CIQAL
   30. Healthy Mental Association (PJS)
   31. Indonesian Association of Disabled Women (HWDI)
   32. Institute for Economic and Social Research, Education and Information (LP3ES)
   33. Empowerment of the Deaf and Blind (PELITA) Indonesia
   34. PPDI Padang
   35. Indonesian Blind Association (Pertuni)
   36. Children's Lantern
   37. Indonesian Youth Council for Tactical Changes (IYCTC)
   38. National Tobacco Control Committee (Komnas PT)
   39. Indonesian Consumers Foundation (YLKI)