UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA RULING Number 43/PUU-IX/2011 FOR THE SAKE OF JUSTICE UNDER GOD ALMIGHTY CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA [1.1] adjudicate constitutional cases at the first and last, passed a decision in the case of petition Testing Act Number 36 Year 2009 on Health of the Constitution Republic of Indonesia Year 1945, filed by: [1.2] 1. Name: Dr. Widyastuti Soerojo, M.Sc.; Occupation: Physician; Street Address Bhakti Kav. 25, Village Cilandak Timur, Jakarta 12560; ------------------------------------------- Hereinafter referred to as Petitioner I; 2. Name: Dr. Muherman Aaron; Occupation: Physician; Address Parks Aries E 12 / 8 RT 007/008, Village North Meruya, District Kembangan, Jakarta West; ------------------------------------------- Hereinafter referred to as Petitioner II; 3. Name: Association of Public Health Student Senate Indonesia (ISMKMI); Represented by: Name: Nilna Rahmi Isna; Occupation: Secretary of Health Student Association Senate Indonesia Society (ISMKMI); Address: Independence Pioneer Road, Jati, Padang; Hereinafter referred to as Petitioner ------------------------------------------ III; 2 Based on the Special Power of Attorney dated July 21, 2011, authorizing Todung Mulya Lubis, SH., Azas Tigor Nainggolah, SH., M.Sc., Tubagus Haryo Karbyanto, SH., David Tobing, SH., Ari Subagyo, SH., Muhammad Joni, SH., MH., Mustakim, SH., MH., Mike Mariana Siregar, SH., Andry Oktriawan, SH., Arief Ariyanto, SH. Yobelny Coal, SH., Rizki Zulkarnain, SH., Rio Arif Wicaksono, SH., Alfred Koko, SH., Asep Bambang Fauzi, SH. Heriyanto Yang, SH., Daniel S. Sinaga, SH., Nina Zainab, SH., And KA. Rahayu, SH., All lawyers and Assistant Advocates who are members of Solidarity For Public Advocate Tobacco Control or the Sapta INDONESIA, the address at Jalan Residents Panca IV No. 44 RT 003/07 Cipinang Muara, East Jakarta, both together or individually to act for and on behalf of the endorser; Hereinafter referred to as ----------------------------------------------- --- the Petitioners; [1.3] Reading the petition of the Petitioners; Having heard the statements of the Petitioners; Examine the evidence of the Petitioners; 2. CASE SITTING [2.1] Considering whereas the Petitioner filed a petition that 1 UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA then listed on the Registrar of the Constitutional Court (hereinafter referred to as Court Registrar) on Monday July 4, 2011 with registration case Number 43/PUU-IX/2011, which has been repaired and accepted in Court Clerk on July 29, 2011, describing things as the following: A. The authority of the Constitutional Court 1. Whereas Article 24 paragraph (2) Amendment of the 1945 Constitution states, "The judicial power shall be done by a Supreme Court and judicial bodies underneath it, and by a Constitutional Court "; 2. That the next Article 24C paragraph (1) Changes in the 1945 Third stated, "The Constitutional Court authority to hear at a level The first and last decision is final for testing legislation against the Constitution, rule on the dispute the authority of state institutions 3 the authority granted by the Constitution, to decide the dissolution of the party political and decide disputes concerning the results of the General Election "; 3. Whereas, pursuant to the provisions above, the Constitutional Court has right or authority to conduct testing legislation (the Act) against the Constitution which is also based on Article 10 paragraph (1) Law Law Number 24 Year 2003 concerning Constitutional Court stated, "The Constitutional Court authority to hear at a level The first and last decision is final for: (a) test legislation (the Act) against the Constitution NRI Year 1945 "; 4. Whereas Article 29 paragraph (1) of Law Number 48 Year 2009 on Judicial Power, said that the Constitutional Court authority to hear at the first and last of which the decision be final: a. Test the laws against the Constitution of the State Republic of Indonesia Year 1945; b. Breaking the authority dispute of state institutions whose authorities granted by the Constitution of the Republic of Indonesia Year 1945 c. Decide upon the dissolution of political parties d. Decide upon disputes concerning election results; and e. Other powers granted by statute. 5. Whereas, pursuant to the provisions of Article 7 of Law Number 10 Year 2004 on the establishment of legislation to set that the hierarchical position higher than the 1945 Act Law, therefore any of the provisions of Act should not be contrary to the 1945 Constitution. Thus, if there is provision in the Act as opposed to the 1945 then these provisions may be filed to be tested through a mechanism Testing Act; 6. The Constitutional Court was established as an institution protecting the constitution (the guardian of constitution). If there is the Act which contains or 2 UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA formed contrary to the constitution (inconstitutional), then The Constitutional Court can menganulirnya by canceling 4 the existence of the Act as a whole or per the article; 7. That as the protector of the constitution, the Constitutional Court is also entitled provide an interpretation of the provisions of those Articles legislation to correspond with the values of the constitution. Tafseer Court The Constitution of the constitutionality of articles of the law interpretation is the sole (the sole interpreter of constitution) that have the force of law. So on the articles that have meaning of ambiguous, vague, and / or multi-interpretation may also be requested interpretation to the Constitutional Court; 8. That in Article 4 paragraph (2) of the Constitutional Court Regulation Number Guidelines for examining 06/PMK/2005 Testing Case The Act, material testing is testing an Act to regarding the substance of the paragraph, chapter, and / or section Act which are considered contrary to the 1945 Constitution; 9. Whereas under the provisions of law above, the Constitutional Court authority to examine, hear and decide judicial review over Explanation of Article 114 of Law Number 36 Year 2009 on Health of Article 28D paragraph (1) of the 1945 Constitution; 6. The Status Law (Legal Standing) And Interest Constitutional The Petitioners. Preamble of the Constitution of 1945 states that the purpose of the State Republic of Indonesia is to protect the whole Indonesian nation and the entire homeland of Indonesia and to promote the general welfare, the intellectual life of the nation, and participate in the establishment of world order based on freedom, lasting peace and social justice. Health as one element of the general welfare must be realized through a variety of health measures in a series of health development thoroughly and are supported by an integrated health system national (Explanation of Law Number 44 Year 2009 on House Hospital, State Gazette Year 2009 Number 153, Supplement State Number 5072) (evidence-P1) 5 Health is a human right and one of the elements of welfare which must be realized in accordance with the ideals of the nation of Indonesia as stipulated in Pancasila and the Preamble to the Constitution of the State Republic of Indonesia Year 1945, particularly Article 28D paragraph (1); Health as a human right must be realized in the form provision of various health efforts to the entire community through implementation of development and affordable quality health by the community. Therefore, all activities and efforts to improving community health status is the highest implemented based on the principle of non-discriminatory, participatory, protection, 3 UNOFFICIAL ENGLISH TRANSLATION FROM BAHASA INDONESIA and sustainability are very important for the formation of resources Indonesia humans, increased resilience and competitiveness of the nation, as well as national development. (See M. Husni Syam, Legal Protection for Health Workers, By mhsyam Leave a Comment, Categories: Articles, 26 December 2009) (evidence-P2); In relation to human rights, issues on health Indonesia is in the state regulated in Law Number 36 of 2009 of Health which in Article 1 paragraph (1) states that health is good health, both physically, mentally, spiritually and social that allows each person to live socially productive and economical; Then Article 51 paragraph (1) of Law Number 24 Year 2003 on The Constitutional Court stated, "Petitioner is a party that considers rights and / or impaired by the enactment of constitutional authority legislation, namely: (a) individual citizens, (b) the unity of the legal community all still alive and customary in accordance with the development of society and the principle of a unitary state of Indonesia as regulated in law, (c) body public and private law, or (d) state institutions ". Petitioner I and Petitioner II, namely: Dr.. And Dr. Aaron Muherman. Widyastuti Soerojo, MSc, is a citizen of Indonesia as evidenced from the Card 6 Identity of the Republic of Indonesia (proof P-3 and P-4). Whereas Petitioner III is a Public Health Student Association Senate Indonesia (ISMKMI) is committed to public health demonstrated with the Articles of Association (P-5). As such provisions as set in Article 51 paragraph (1) letter a and letter c of Law Number 24 Year 2003 on the Constitutional Court are met. However, the Applicant realized to prove the fulfillment of legal standing to be explained causality (causal verband) and the potential loss of constitutional real due to the existence or enactment of a piece of legislation, Explanation namely Article 114 of Law No. 36 of 2009, against Article 28D paragraph (1) of the Act of 1945; Referring to the Constitutional Court Decision No. 006/PUU-III/2005 Case Number 11/PUU-V/2007 (evidence-P6), the applicant must be qualified as follows: a. The presence of the Petitioners' constitutional rights granted by the 1945 Constitution. b. That the constitutional rights of the applicant are deemed by the Petitioner has been aggrieved by an Act that were tested. c. That the constitutional impairment of the Petitioners in question is specific or specific and actual or at least potential in nature which according to logical reasoning will surely occur. d. A causal relationship between losses and the enactment of Invite a petition to be tested.