Discussion on the Draft Law (RUU) of the Social Security Organizing Body (BPJS) is currently entering the stage of Level I Talks which is carried out in the Working Committee (Raker) Special Committee (Special Committee) RUU BPJS DPR RI along with the Ministers representing the President. In accordance with Presidential letter No. R.70 / Pres / 09/2010 addressed to the Chairperson of the Indonesian Parliament, the President is not half-hearted to appoint 5 Ministers to represent him.
The Minister is the Minister of Finance, the Minister of State Owned Enterprises, the Minister of Social Affairs, the State Minister of PAN and Bureaucratic Reform, and the Minister of Law and Human Rights. The President seems to see the problem of the BPJS Bill in a macro perspective from the financial, economic, social, institutional and legal aspects. While the technical aspects of implementing the program do not appear to be a primary consideration. Therefore the Minister of Health and the Minister of Manpower were not appointed together with other Ministers to represent the President.
The government has submitted 207 List of Problem Inventory (DIM) in response to the BPJS Bill proposed by the DPR. Out of the 207 DIMs, only 7 DIMs stated that the formula was “permanent”, so that in accordance with the DPR Standing Orders, the direct approval was in accordance with the formulation. 2 DIM containing “editorial” responses are directly submitted to the Formulating Team. 20 DIM contains the Government’s response to abolish the article or paragraph in the Bill, 1 DIM states that the Government has not been able to accept the formulation stipulated in the Bill. The rest of the Government stated “waiting for the results of other DIM discussions or concordance with other DIMs.
Discussion of the BPJS Bill in the DPR has entered the political sphere. In the Special Committee Meeting of the House of Representatives BPJS Bill with the Government there was a very intense political interaction between the factions that sat as Leaders and Members of the Special Committee with Ministers representing the President.
The Government and the Parliament pitted on the concepts and strategies in the drafting of the BPJS Bill. Political decisions will be taken after the political process takes place through a series of conflicts and consensus which is the essence of the democratic political system. The law as a statutory regulation established by the Parliament with the President’s joint agreement is indeed a political product.
Moh. Mahfud MD (2005, 65) argues, “Legal products are products of political decisions so that the law can be seen as a crystallization of interacting political thought among politicians.” In another part he argued, “the character of the contents of each legal product will be highly determined or colored by the balance of power or political configuration that gave birth to it. ”
In a political system that adheres to the principles of constitutional democracy, laws as political products should be oriented to the aspirations of the people and fulfillment of human rights guaranteed in the 1945 Constitution of the Republic of Indonesia.
In this context, the establishment of the BPJS Law must be seen as part of the State’s commitment to develop a social security system for all people and to fulfill everyone’s right to social security as mandated in the constitution.
Paying attention to the political configuration after the 2009 General Election which resulted in a coalition government party (the Democratic Party, the Golkar Party, the Prosperous Justice Party, the National Mandate Party, the United Development Party, and the National Awakening Party) represented in the DPR were theoretically strong enough to build a joint commitment in forming a joint commitment in forming BPJS Law. The Coalition is able to capture the aspirations of the people and have a commitment to realize the implementation of the National Social Security System (SJSN) as an instrument that allows every Indonesian citizen to live in prosperity in accordance with human dignity.
The BPJS Law was formed in the attainment of the objectives of forming the government of the Indonesian State, among others to protect the entire Indonesian nation, and to advance general welfare by realizing social justice for all the people of Indonesia. Justice here is not just procedural justice, but rather the substantive justice that has individual and social dimensions.
Political reality shows that in the discussion of the BPJS Bill there are very basic differences between the Government and the Parliament regarding the content of the bill. Although both of them stated that they adhered to the mandate of the 1945 Republic of Indonesia State and consistently implemented the SJSN Law.
The perception between the Government and the Parliament in the implementation of the SJSN Law is still different. The government considers the financial aspect more, while the DPR puts forward the consideration of fulfilling the rights of citizens.
This is evident from the opinion of Agus Mertowardojo, Minister of Finance at the Special Committee Meeting on the BPJS Bill on November 24, 2010. The Minister of Finance requested that the formation of the BPJS Bill on the financial aspects must be carefully considered.
Whereas the DPR is of the opinion that the BPJS Bill proposed the DPR’s initiative aims at two things as stated in the Academic Paper on the BPJS Bill. First to carry out the order of Law No. 40 of 2004 concerning the National Social Security System after the Constitutional Court Decision number 007 / PUU-III / 2005. Second, to provide legal certainty in the implementation of a social security program in the form of a public legal entity, the trustee in an effective and efficient manner in order to ensure that all people can meet the basic needs of a decent life.
The Special Committee for the BPJS Bill and the Government have agreed to lobby to find a solution to the different concepts or so-called “spirits” of the BPJS Bill.
Through the lobby forum, it is hoped that the concept differences between the Government and the Parliament can be resolved through a correct understanding of the soul and spirit of the SJSN Law as the implementation of the constitutional mandate. Or in political terms in the lobby forum, efforts are made so that conflicts of interest between the government and the DPR can be turned into a consensus that is in favor of the people’s interests and in accordance with the mandate of the constitution. The political process is indeed a dynamic process of transforming conflict into a consensus that is difficult to predict.
Given “politics is not an exact science” as Otto von Bismarck said, various possibilities could occur in the lobby forum.
Differences that should be brought closer to the same understanding and commitment to the SJSN Law, actually become wider and the grading is protracted. Especially if each party with different views misdiagnoses the problem. As a result, the problem solving is wrong. In turn, the implementation of the SJSN Law and the fulfillment of people’s rights to social security are further from expectations.
Of course we do not want the Government and the Parliament to misdiagnose the differences between them and to provide incorrect treatment. Because time was pressed, political compromise was made but ignored the basic principles of the social security system that had to be implemented.
In political forums, making compromises is legitimate, but the provisions of the SJSN Law after the Constitutional Court Decision must be used as a guiding star in the formation of the BPJS Law. With this corridor the political compromise taken will remain in line with the SJSN Law. Because according to the Constitutional Court, “as far as the social security system is chosen, the SJSN Law has sufficiently fulfilled the purpose of Article 34 paragraph (2) of the 1945 Constitution.”
Concern that the political decisions taken by lawmakers can be wrong is quite reasonable. Consider the opinion of a famous American comedian, Groucho Marx. He once stated, “Politics is the art of looking for trouble, finding it, misdiagnosing it, and then misplaying the wrong remedies.”
Therefore, the difference in concept between the Government and the Parliament regarding the BPJS Bill needs to be analyzed carefully and thoroughly so that the root of the problem can be found correctly and appropriately. Is this difference really motivated by differences in basic principles regarding the choice of the SJSN system or differences in perceptions in the implementation of the SJSN Law or differences in determining the priorities of the SJSN development?
The Government and the Parliament are expected to have the same understanding regarding the fulfillment of each person’s constitutional rights to social security. Likewise with the State’s obligation to develop a social security system for all people and empower people who are weak and unable to comply with human dignity, as clearly mandated in the 1945 Republic of Indonesia State Constitution.
The government and the DPR indeed have very different concepts about the content of the BPJS Bill. This is evident from the Principal Explanations of the Government Concerning DIM on the BPJS Bill read out by Patrialis Akbar, Minister of Law and Human Rights, at the Working Meeting of the BPJS Bill Special Committee on October 25, 2010.
Menhukham Patrialis stated, among others, “The government believes that the rationale of the honorable DPR as stipulated in the Bill on BPJS, still requires careful study and review.” Furthermore it was stated, “The Government hopes that a bill can be formulated that is consistent and consistent with the substance in substance. National Social Security Law “.
The difference in concept between the Government and the DPR according to the Chairperson of the DPR BPJS Bill Special Committee concerns the spirit or soul of the Bill.
There are 3 different concepts between the Government and the Parliament. First, the Government wants the BPJS Bill to only stipulate BPJS based on the provisions of Article 52 of the National Social Security System Law, while the House of Representatives wants the BPJS Draft Bill to form the BPJS in accordance with Article 5 paragraph (1) of the National Social Security System Law after the Decision of the Constitutional Court on 31 August 2005. Second, the Government wants the existence of several the organizing body is maintained in accordance with the provisions of Article 1 number 2 and the last paragraph of the General Explanation of the SJSN Law, while the DPR proposes a BPJS to organize a social security program. Third, the Government considers that the legal entity form of BUMN Persero is in accordance with the SJSN Law, while the DPR states that the legal entity form is a trustee that matches the provisions of the SJSN Law.
The implications of the three concepts have a profound effect on the format and content of the matter stipulated in the Bill. The format and content of the BPJS Bill according to the Government concept are very simple, containing the designation of the organizing body as BPJS according to the SJSN Law and the subsequent delegation of regulations to the implementing regulations.
The format and content of the BPJS Bill according to the DPR concept are more comprehensive. The draft version of the DPR bill contains the formation of BPJS institutions that include status and position, duties and authorities, rights and obligations, membership and contributions, BPJS organs, decision making, accountability, wealth and operational expenditure, dispute resolution, and prohibitions.
The strengths of the Government concept are that it is simpler and has shorter discussion time, has the support of the existing governing body, and the transition is easier. But there are shortcomings, namely the necessary implementing regulations are not necessarily immediately formed. It is feared that the old implementing regulations will continue to be used despite changes in the law. As a result, there will be no significant reforms to improve the efficiency of the implementation of national social security.
In addition, the format and substance of the Government’s draft BPJS Bill is not in accordance with the legal considerations of the Constitutional Court Decision in case Number 007 / PUU-III / 2005. The Constitutional Court stated, among others, “Article 5 paragraph (1) of the National Social Security Law must be interpreted that the provision is intended for the establishment of a national-level organizing body that is at the center, while for the formation of a regional-level social security organizing body can be formed by a Regional Regulation by fulfilling the provisions concerning national social security system as stipulated in the SJSN Law. ”
Strengths of the DPR concept include comprehensive and operational arrangements, fundamental reforms in the implementation of social security, in accordance with the Decision of the Constitutional Court in case Number 007 / PUU-III / 2007. While the drawbacks are that discussions require more time, face resistance from those who are already comfortable with the existing governing body, and transitions are more complex and must be carefully calculated in various aspects.
The government and the DPR are indeed faced with an easy choice. But a decision must be taken. It is expected that both of them have wisdom in making choices that are in favor of the people and are based consistently on the mandate of the constitution and the law.
BPJSD Not Regulated
Although the DPR and the Government differed in the concept of the BPJS Bill, both did not propose a draft regulation regarding the formation of a Regional Level Social Security Management Agency. Whereas legal considerations and Constitutional Court Decisions 007 / PUU-III / 2005 provide the choice of establishing a BPJS in a region with a Regional Regulation.
This shows that the legislators do not want to simultaneously regulate the formation of the National Social Security Organizing Agency at the central level and the Regional Social Security Administering Body. Even though since 2005 the region has been waiting for clear arrangements regarding the formation of a Regional Level Social Security Organizing Agency.
Various regions without waiting for regulation from the national level have formed Regional Level Social Security Administering Bodies with Regional Regulations. The real demands of the people in the area have been the driving force for the Regional Government to take that policy. If the BPJS Bill does not accommodate the opportunity for parties who feel that their constitutional interests have been harmed, they will submit an examination of the BPJS Law to the Constitutional Court.
The discussion of the BPJS Bill seems difficult to be completed in the current DPR session. Unless the DPR can accept the Government’s concept that requires the BPJS Law to establish an existing governing body as the BPJS according to the SJSN Law. The DPR is certainly not that easy to accept the Government’s thoughts because of the Constitutional Court’s Decision in the case of testing the National Social Security System Law on the 1945 Republic of Indonesia with case number 007 / PUU-III / 2005. Such provisions are declared contrary to the Constitution and are declared to have no binding legal force by the Constitutional Court. The DPR certainly does not want to stumble twice on the same stone in forming the BPJS Law.
The time available for this trial is only two weeks while the crucial content material is very basic and requires serious and in-depth discussion. Chairperson of the DPR Legislative Body Ignasius Mulyono is targeting the BPJS Law as one of the 9 bills expected to be completed by December 2010. Does the hope of the Chairperson of the DPR Legislative Body come true? Let’s wait!
It should be remembered that according to the provisions of Article 141 paragraph (1) of the DPR Standing Orders “Discussion of the Draft Law is carried out within a maximum period of 2 times the trial period and is scheduled by the Deliberation Board, and can be extended by the Deliberation Board in accordance with a written request from the Committee Chairperson Specifically, for a maximum period of 1 trial period. ”
If during this session the BPJS Bill is not successfully approved to be ratified into law, the Chairperson of the Special Committee must submit a written request to the Deliberation Board for an extended period of discussion. The extension is given based on the consideration of the material contained in the bill is complex with a large number of articles and the task burden of the Special Committee. Are these requirements fulfilled?
The answer is in the House of Representatives Council. Because this Agency has the authority to determine.