Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database Decision Number 12/PUU- VIII/2010 FOR THE SAKE OF JUSTICE UNDER GOD ALMIGHTY THE CONSTITUTIONAL COURT OF THE REPUBLIC OF INDONESIA [1.1] Upon examining, hearing and deciding upon constitutional cases at the first and final instance, passes a decision in the case of a petition of Law Number 36 of 2009 Concerning Health against the Constitution of the Republic of Indonesia 1945, filed by: [1.2] 1. Name : Misram, S.Km; Occupation : Civil servant, nurse, Head of Kuala Samboja Health Centre; Address : Jalan Raya Balikpapan Handil II RT. 04 Number 01 Kuala Samboja Sub-District, Samboja District, Kutai Kertanegara Regency, East Kalimantan Province; 2. Name : H. Mahmud, S.Km; Occupation : Civil servant, Head of Kayungu Health Centre; Address : Desa Sekuro Jaya, Long Ikis District, Paser, East Kalimantan Province; 3. Name : Zulkifli, Amd. Kep; Occupation : Civil servant, Chief Administrator of Lolo Community Health Centre; Address : Keluang Village, Kuaro District, Paser Regency, East Kalimantan Province; 4. Name : Giyana, S. Km; Occupation : Civil servant, Head of Krayan Community Health Centre; Address : Krayan Makmur Village, Neighbourhood Ward 03/ Block 1 Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database Long Ikis, Paser Regency, East Kalimantan Province; 5. Name : Muchlas Sudarsono, Amd. Kep; Occupation : Civil servant, Head of Padang Pangrapat Community Health Centre; Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database Address : Jalan Sawit, Keluang Lolo Village, Neighbourhood Ward 09/03, Kuaro District, Paser Regency, East Kalimantan Province; 6. Name : Loging Anom Subagio; Occupation : Civil servant, Head of Argomulya Community Health Centre; Address : Jalan KS. Tubun, Argomulyo Village, Sepaku District, North Penajam Paser Regency, East Kalimantan Province; 7. Name : Edi Waskito; Occupation : Civil servant, Head of Bulu Minung Community Health Centre; Address : Minung Sub-District, Neighbourhood Ward 2, Penajam District, North Penajam Paser Regency, East Kalimantan Province; 8. Name : Abdul Munif; Occupation : Civil servant, Head of Muara Jawa Ulu Community Health Centre; Address : Jalan Delima, Neighbourhood Ward 3, Muara Jawa Ulu Sub-District, Muara Jawa District, Kutai Kartanegara Regency, East Kalimantan Province; 9. Name : Afriyanto; Occupation : Civil servant, Head of Pembantu Teluk Dalam Community Health Centre; Address : Jalan Swadaya, Neighbourhood Ward 4, Teluk Dalam Sub-District, Muara Jawa District, Kutai Kartanegara Regency, East Kalimantan Province; By Virtue of a Special Power of Attorney, dated 20 December, 2009, 1 February, 2010 and 8 February, 2010, power is granted to (1). Muhammad Aidiansyah, S.H., and (2). Erwin, S.H., M.H, both of whom are Advocates and Legal Counsel for the Consultation and Legal Aid Agency of the Indonesian Civil Servants Corps (KORPRI) of Kutai Kartanegara, having its address at Jalan Panji Number 40 Tenggarong; Hereinafter referred to as ---------------------------------------------- the Plaintiffs Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database [1.3] Having read the petition of the Plaintiffs; Having heard the testimonies of the Plaintiffs; Having heard and read the affidavit of the Government; Having read the affidavit of the People’s Legislative Assembly; Having heard the testimonies of the experts and witnesses of the Plaintiffs; Having heard the testimonies of the witnesses of the Government; Having heard the testimonies of the Related Parties, namely the Indonesian Pharmacists Association, National Nurses Association of Indonesia and the Indonesian Medical Association; Having read the affidavit of the Related Party, Dr. Mangku Sitepoe; Having examined the documentary evidence presented by the Plaintiffs; 2. FACTS OF THE CASE [2.1] The Plaintiffs, in their petition dated 10 February, 2010, were registered by the Registrar’s Office of the Constitutional Court (hereinafter referred to as the Court Registrar) on February 16, 2010 under the Deed of Acceptance of Petition File No. 26/PAN.MK/2010, and registered with petition Number 12/PUU- VIII/2010 on March 1, 2010, which was amended and received by the Court Registry on 29 March 2010, and outlines the following matters: Authority of the Court 1. The Plaintiffs request that the Constitutional Court (hereinafter referred to as the Court) perform an examination of Article 108(1) and its Explanation in conjunction with Article 190(1) of Law No. 36 of 2009 Concerning Health; 2. As set forth in Article 24C(1) of the 1945 Constitution in conjunction with Article 10(1)(a) of Law No. 24 of 2003 Concerning the Constitutional Court (Constitutional Court Law), one of the Constitutional Court's authorities is to conduct judicial review of laws against the 1945 Constitution. Article 24C(1) of the 1945 Constitution, among other things, states that, "The Constitutional Court has the authority to hear cases at the first and final instance, where it’s Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database decision shall be final, to (a) review a law against the 1945 Constitution”. Further, Article 10(1)(a) of the Constitutional Court Law, among other things, states that, "The Constitutional Court has the authority to hear cases at the first and final instance, where its decision shall be final, to: a. Test existing laws against the 1945 Constitution of the Republic of Indonesia; 3. Furthermore, pursuant to the provisions of Article 7 of Law No. 10 of 2004 Concerning the Formation of Legislation, it stipulated that there is a hierarchy where the 1945 Constitution is of a higher legal position than legislation. Hence, any provision of a Law must not conflict with the 1945 Constitution. Thus, if there are provisions in a Law which conflict with the 1945 Constitution, such a provision may be petitioned for review under the mechanism of the Law of Examination; 4. Based on the matters referred to above, the Constitutional Court is authorized to adjudicate and decide upon the petition of this Law. Legal Standing of the Plaintiffs 5. Pursuant to Article 51(1) of the Law of the Constitutional Court and its Explanation, those who may file a petition against the Constitution of 1945 are those who consider their rights and/or authorities granted by the 1945 Constitution to be impaired by the enactment of a law, namely: a. Individual Indonesian citizens (including groups of people who have similar interests); b. customary law communities which are still alive and living in accordance with the development and principles of the Unitary Republic of Indonesia as regulated by law; c. public or private legal entities; or d. state institutions; 6. Based on the above provisions, there are two conditions which must be met by the Plaintiffs in seeking judicial review of the Law of the Constitution of the Republic of Indonesia 1945. The first requirement is that the petitioners be qualified to act as Plaintiffs, and the second requirement is that the Plaintiff’s Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database constitutional rights as contained in the 1945 Constitution be harmed / violated by the enactment of a law; 7. The Plaintiffs are health workers whose civil status is assigned by the District Government / Department of Health on Health Centres as Heads of Health Centres and/ or nursing staff in remote areas, where there is no medical personnel (doctors) and pharmacy personnel (pharmacists / assistant pharmacists) in the Kertanegara Kutai Regency, Paser Regency and North Penajam Paser Regency in East Kalimantan Province, so that all health services provided to citizens were borne by the Plaintiffs alone. Thus, the Plaintiffs are individuals / a group of Indonesian citizens as per Article 51(1) of the Constitutional Court Law and have the qualifications to act as Plaintiffs; 8. According to the Constitution of 1945, the Plaintiffs have the following constitutional rights: • Article 27(1) "All citizens have equal standing before the law and government, and shall uphold the law and government, with no exception". • Article 28C(2) "Every person has the right to advance themselves in the fight for their rights collectively to build a society, nation and country". • Article 28D(1) "Every person is entitled to recognition, security, protection and legal certainty of fair and equal treatment before the law". • Article 28D(3) "Every citizen is entitled to equal opportunities in government". • Article 28H(1) "Every person has the right to live in physical and spiritual prosperity, in their residence, and obtain a good and healthy environment as well as receive medical care". • Article 28J(1) "Every person shall respect the human rights of others in the orderly life of society, nation and state". 9. Article 108(1) of Law No. 36 of 2009 Concerning Health states that: Translation provided by Lawyers Collective (New Delhi, India) and partners for the Global Health and Human Rights Database "Pharmaceutical practices comprising of production including quality control of pharmaceutical preparation, security, supply, storage and distribution of drugs, prescription drug services, drug information services