Press Release Civil Society Coalition for Fair Health Access

Postpone the Enactment of the Health Bill: Improve and Ensure Meaningful Public Participation

Jakarta, 13 June 2023 — The Civil Society Coalition for Fair Health Access urges the DPR and government to postpone the ratification of the Health Bill (RUU) (Omnibus Law). Since it was introduced to the public, this bill has generated quite a lot of pros and cons because it has not sided with the interests of the people and has not been oriented towards protecting and fulfilling the right to public health which is a constitutional mandate.

After listening to the public communication submitted by the government and studying the draft bill and DIM proposed by the government, we noted that there were at least seven reasons for the delay as follows:

First, discussion of the bill was closed and without meaningful public participation. The Problem Inventory List (DIM) released by the Ministry of Health states that of the 478 articles in the Health Bill, the total DIM body is 3020: 1037 are permanent, 399 are editorial changes, and 1584 are substantive changes. However, the DIM which has been discussed since August 2022 will only become known to the public around March 2023. Until now, the public has not been presented with the latest draft of the Health Bill. The text published by the Ministry of Health through the channel karetsehat.kemkes.go.id is the text as of February 2023 and is said by the Ministry of Health to have undergone a number of changes.1

The formulation of the Health Bill can be said to have been a silent process and did not involve meaningful public participation. The formulation of the Health Bill also does not involve all stakeholders, including professional organizations, young people, women's and mothers' groups, experts, academics, scientists and disability groups in a meaningful way to ensure that the health interests of all groups of citizens are protected in the Health Bill. Law drafters should involve the public from the start of discussions, not just socialize the draft that has been prepared.

Referring to the Constitutional Court (MK) Decision No. 91/PUUXVIII/2020, meaningful public participation is not limited to fulfilling the right to have one's opinion heard (right to be heard), but also tests the extent to which the government considers citizens' rights in giving their opinions (right to be considered). Even if it is not accommodated, the public has the right to receive an explanation or answer to the opinion given (right to be explained). This was not done by the government or the DPR in formulating the Health Bill.

Meaningful public participation is essential to ensure legislative outcomes that meet a sense of justice (social justice) and protection of public health. Apart from that, a non-participatory process deviates from the mandate of Law no. 13 of 2022 concerning Formation of Legislative Regulations. Therefore, the ratification of the Health Bill must be postponed until the government and DPR are committed to carrying out a design and discussion process that meets the principles of openness, honesty and humanity and justice.

Second, the weak urgency of the need for a Health Bill using the omnibus law method. The DIM Health Bill does not sufficiently explain the urgency of why the omnibus law method is needed by combining 10 (ten) laws and regulations. There is no visible basic problem that forms the basis for the need to create an omnibus law bill. Therefore, the idea of ​​health transformation introduced by the Ministry of Health through the Health Bill needs to be reviewed comprehensively.

The short discussion time, the rush, the lack of transparency and the broad scope of the Health Bill on the one hand, and the government's public communication which tends to focus on issues related to professional organizations  have confused and made it difficult for the public to understand its contents. The dominance of issues related to professional organizations hides other important substances, such as the issues contained in this press release and other important issues that have been raised by various organizations. The dominance of issues related to professional organizations obscures the threat of neglecting the fulfillment of the right to health.

Third, the Health Bill tends to lead to the liberalization of the health system and expands the privatization/commercialization of health services, which makes health services, including medical personnel, a commodity. Commercialization of the health sector will not only have the potential to concentrate the health market, especially in urban areas, but also have the potential to widen the gap in access to health services in the 3T region in Indonesia. This is contrary to the goal to be achieved with the bill, namely expanding the provision of health services to all regions of Indonesia, including the 3T areas.

The text of the Health Bill strongly encourages easy investment in the fields of health services, medical education and pharmacy, which has the potential to ignore the focus on protecting public health interests. This is in line with the Indonesian Chamber of Commerce and Industry (Kadin)'s proposal to the government at the end of 20212 to form an omnibus law in the health sector following the lack of interest from foreign investors in investing their capital in the domestic health industry, following the lack of discussion of the health industry in the Job Creation (Ciptaker) Law. Apart from that, in Bisnis Indonesia's coverage, Kadin hopes that the omnibus law in the health sector can include regulations related to medical education and hospital construction. Once again, this is in line with the contents of the current Health Bill text.

Even before the bill was passed, the government (Ministry of Health) had signed a Memorandum of Understanding (MoU) with The Bill & Melinda Gates Foundation (BMGF) for the health service transformation agenda  involving the private sector on June 8. With this, the government forces the public to simply accept the Health Bill, even though the public does not yet know the contents and consequences of the bill.

Fourth, the Health Bill eliminates the minimum allocation for the health budget, which has the potential to result in increasingly minimal budget support for health services. 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. In the government's version of the draft Health Bill (articles 420 (2) and (3) it removes the minimum budget allocation of 10% of the APBN and 10% of the APBD in the DPR version of the draft Bill, accompanied by several reasons, one of which is that too much mandatory state spending results in the capacity of the APBN/APBD becoming narrow and inflexible/inefficiency.

The elimination of the minimum budget allocation provisions is contrary to the aim of the Health Bill, namely expanding and improving the quality of health services to villages, including 3T (remote, underdeveloped, outermost) areas, which of course requires increased health financing which demands adequate budget allocation. The elimination of minimum budget allocations will have an impact on conditions where the fulfillment of the right to health services depends on the "kindness" of central and regional authorities. In fact, fulfilling the right to health is the state's obligation and fulfillment of this obligation is proven by the existence of a minimum budget allocation for the health sector. The absence of a minimum budget allocation can have an impact on increasingly minimal health budgeting and result in increasingly poor health services. If this bill is passed, the parties who will suffer the most will be poor groups, people with disabilities, vulnerable groups - including women and children, and community groups in 3T areas.

Fifth, centralization of health governance by the central government can reduce the independence of knowledge in the health sector. In the Health Bill narrative document, there are several clusters that contain proposals for expanding the authority of the central government. These include proposals for expanding government authority in the realm of the health profession. Education and training to increase the competency of health workers and the collegium in charge body of knowledge health profession which has been independent. Pulling everything under the authority of the central government will threaten the independence of development body of knowledge the.  Apart from that, health human resource management will be under the authority of the Ministry of Health from upstream to downstream. This absolutism of power has the potential to occur abuse of power towards medical personnel and health workers.

The government criticizes professional organizations which are said to be the main problem in the health system in Indonesia. Improvements are certainly needed, however, with this Health Bill, the government takes over all the functions/roles of professional organizations, the Collegium, the Medical Council and the Health Personnel Council and places them in the hands of the Minister of Health. This means that the government is doing what it criticizes itself for, only moving the problem from one actor (professional organizations) to another actor (the Minister of Health).

Sixth, the substance of the bill itself contains various contradictions which, if ignored, will clearly make this bill fail to achieve its objectives. This means that drafting and discussing the bill in a hasty and haphazard manner will only waste state resources which are increasingly limited. Some of these contradictions include expanding and improving the quality of health services down to the village level vs eliminating the minimum budget allocation from the APBN/APBD for the health sector; domination of professional organizations vs domination of the Minister of Health; accelerated production of local doctors vs ease of entry of foreign doctors; increasing role of state vs expanding role of private sector; consideration of economic values ​​vs consideration of human rights values.

In addition, the Ministry of Health in the Health Bill is mandated to control potential misuse of services and control the quality of health service costs for participants, health facilities and BPJS Health. However, reflecting on current conditions, we see that the management of health funds does not use the principles of transparency, inclusiveness, and often the quality of service is not optimal. One of the problems in JKN services managed by BPJS Health so far is: out of pocket BPJS participants. So far, the government has been given the authority to determine the rates that will be paid to health facilities through the INA CBGs scheme. However, in this scheme there are several components that are not covered by the government and cause the high out-of-pocket public. This control also seems to exclude the public from being actively involved in monitoring the implementation of the National Health Insurance (JKN) program.

Seventh, the Health Bill does not adequately address the issue of health services which are vulnerable to corruption and various forms of fraud. Corruption and all forms fraud is a big problem in health services. Throughout 2022, law enforcement officials have taken action against at least 27 health-related corruption cases with state losses of around IDR 73.9 billion.3 This figure continues to increase from previous years. Cases prosecuted by law enforcement generally relate to development (especially the construction of community health centers) and the procurement of medical equipment. Apart from cases that have been handled by law enforcement, corruption and health fraud are believed to be more massive and have a significant impact on suboptimal health services and expensive public access to quality health services. This includes the practice of collusion and gratification in drug prescribing as well as registration and licensing of medical and health personnel practices.

Unfortunately, the bill which is said to reform health services in the future does not adequately capture and mitigate the problem of fraud in the health sector. These include, how to increase drug price transparency in all health facilities, how to prevent and handle collusion and gratification practices involving pharmaceutical companies, and others. For civil servant doctors, prevention of gratification is regulated in Law no. 20 of 2001 and Law no. 5 of 2014. This bill should fill the legal vacuum related to gratuities towards private doctors.

We remind you of these basic things because the absence of meaningful participation, the weakening of protective budgeting obligations for citizens, the commodification of health services, especially the potential for corruption which is increasingly facilitated through this bill is clearly a form of violation of the right to health as a human right which is mandated in the Constitution of the Republic of Indonesia.

Civil Society Coalition for Fair Health Access

1. YLBHI
2. Ecosoc Institute
3. IM57+ Institute
4. Center for Legal and Social Justice Studies (LSJ) FH UGM
5. Indonesia Corruption Watch
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)
40. Indonesian Legal Aid and Human Rights Association (PBHI)
41. Indonesian City Citizens Forum (FAKTA).
42. Indonesian Health Law Society (MHKI)

Reference:

1participationsehat.kemkes.go.id accessed on 12 June 2023 (13:52 WIB)

2 Indonesian Business Coverage December 2021 https://economic.bisnis.com/read/20211214/12/1477310/investasi-asing-minim-kadin-ulus-besar-omnibus-law-kesehatan accessed June 12, 2023

3 Indonesia Corruption Watch, Report on the Results of Monitoring Trends in Prosecuting Corruption Cases in 2022
https://antikoburu.org/sites/default/files/document/Narasi%20Laporan%20Tren%20Penidakan%20Korruption%20 Tahun%202022.pdf, accessed on 12 June 2023 (21:45 WIB)

This press release can be downloaded via the following link