On 6 January 2022, the President of Republic of Indonesia issued an instruction on optimization of implementation of the national health security program to several ministers and institutions, among others to the Minister of Agrarian and Spatial Planning (“Minister of ATR”). Based on the instruction, the Minister of ATR is instructed to ensure that the applicant, in the application of land rights transfer due to sale and purchase, is an active member of the national health security program. One month from the issuance of the presidential instruction, the Minister of ATR issues two letters to all the Heads of National Land Agency Regional Office and Heads of Land Office, stating that the application of transfer of right over land or rights to own over condominium unit must be equipped with a membership card of BPJS Healthcare.
One will understand that the purpose of the new requirement is to optimize the national health security program, which is noble, since the aim of national healthcare security is to ensure that the participants obtain benefits of healthcare and protection in fulfilling their basic health needs. Yes, the national security program is mandatory under the social security law. But how should we see this new requirement? Seeing that the BPJS Healthcare is an obligation under the regime of national security program and then now becomes a mandatory requirement for land registration, it might seem like a ship sailing without a proper direction and anchored to an unrelated port without a foothold.
The 1945 Constitution provides the right to every person to obtain medical care and social security. The 1945 Constitution however also provides a right for every person to have a residence and own private property. It is then understood that the essence of social security and owning a private property is a right, not an obligation, although the new requirement might be seen as turning it into an obligation. Viewing the essence of social security as a right, it looks bizarre to make one right as the requirement to obtain another right, where the two rights differ in their context.
The presidential instructions and circular letters are not considered as part of laws and regulations. They should be seen as the internal policy within the government. Therefore, it might bring legal issue(s) if the National Land Agency Regional Offices or Land Offices then rejects an application of transfer of rights over land or condominium based on the non-fulfillment of BPJS Healthcare card. As the government officials, every decision and/or action made by the Heads of National Land Agency Regional Office and Heads of Land Office must be made based on the prevailing laws and regulation and general principles of good governance. The government regulation and Minister of ATR’s regulation on land registration does not require BPJS Healthcare card as one of the requirements for the application of transfer of land right. On another aspect, namely the principle of legal certainty, the government’s policy must be made on the provision under the prevailing laws and regulation, decency, constancy, and justice. If this requirement is considered binding to the public, which it should not be, that requirement is better be regulated in the form of regulation, not just through an instruction.
Ivor Pasaribu
