PUBLIC COMPANIES’ REPORTING OBLIGATION ON OWNERSHIP OF OR CHANGES IN SHARES OWNERSHIP AND REPORTS ON SHARE-PLEDGES
On February 28, 2024, the Financial Services Authority (Otoritas Jasa Keuangan, “OJK”) issued and enacted Regulation No. 4 of 2024 regarding the Reports on Ownership of or Any Changes in Shares Ownership in Public Companies and Reports on Share-Pledging Activities in Public Companies (“POJK 4/2024”).
Based on the consideration of POJK 4/2024, OJK was aware of the needs to adjust the reporting mechanism of the shares ownership in public companies or any changes to such ownership to accord the international standards or the result of comparative studies with other countries. In addition to this, given that shareholders in public companies may likely conduct share-pledging activities, it is essential to set out a specific provision to require public companies to report such share-pledging activities.
In principle, POJK 4/2024 is intended to increase the quality of information disclosure by certain shareholders and the quality of supervision, which includes the procurement of an electronic-based reporting system.
POJK 4/2024 will come into effect within 6 (six) months as of its enactment (i.e., August 28, 2024). Upon its coming into effect, OJK Regulation No. 11/POJK.04/2017 dated March 14, 2017 on Reports of Ownership of or Any Changes to the Ownership of Shares in Public Companies is revoked and declared invalid.
We set out below key provisions of POJK 4/2024.
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- Reporting Obligation of Ownership of or Any Changes in Ownership of Public Companies
Members of the Board of Directors (“BOD”) or members of the Board of Commissioners (“BOC”) of a public company who own direct or indirect shares with voting rights, must submit the report of ownership of voting rights over shares of the public company and any changes to such ownership (each report, an “Ownership Report”) to OJK.In addition to the members of the BOD and BOC, the parties with any of the following criteria is required to submit an Ownership Report to OJK:- any party who owns share with voting rights of at least 5% (five percent). Please note that if there is any decrease to the ownership percentage of shares with voting rights so that it becomes less than 5% (five percent), such a party is required to notify the change of ownership of voting rights over shares to OJK through the submission of an Ownership Report[1]; and
- any party who is a controller of a public company, which refers to any party who owns more than or less than 5% (five percent) of shares with voting rights.
The submission of an Ownership Report to OJK must be conducted no later than 5 (five) days as of (i) the occurrence of voting rights over shares, or (ii) any changes to the ownership of voting rights over shares of a public company. Please also note that the information on an Ownership Report shall be made available to the public.
If the changes to the ownership of voting rights over shares occur due to inheritance, then the party who receives the inheritance of shares must notify the relevant changes to OJK through the submission of an Ownership Report.
POJK 4/2024 also provides an exemption to the reporting obligation, provided that the change of ownership of voting rights over shares occurs due to the following reasons:
- A capital increase of a public company, either with or without a pre-emptive right;
- Any corporate action of a public company without involving any transactions by the shareholders.
- Content of the Ownership Report
An Ownership Report shall encompass at least the following information:- name, address, and citizenship;
- name of the public company’s shares;
- number of shares and shares ownership percentage with voting rights over the public company’s shares before and after the transaction;
- type of the transactions being carried out;
- number of shares purchased, sold, or transferred;
- description of shares classification, which refers to the information on whether the shares are classified as ordinary shares or shares with multiple voting rights;
- if the change of ownership is due to a payment transaction, to include the information on the sale or purchase price of each share;
- date of transaction;
- purpose of transaction;
- shares ownership status, both directly and indirectly;
- if there is any indirect share ownership, to include the information on shareholders who are listed in the list of shareholders of public company for the interest of the beneficial owners;
- if an Ownership Report is submitted through a proxy, to include the information on the name of the shareholder who grants the authorization to such proxy;
- if an Ownership Report is made by a certain organized group, to include the information on the details of members of such organized group.
In addition to the above items of information, if the changes of ownership are undertaken by the controlling shareholder of a public company, an Ownership Report shall include an explanation on whether such a controlling shareholder wishes to maintain its control towards the relevant public company.
- Reporting Obligation of Share-Pledging Activities in Public Companies
Shareholders of a public company who pledge the public company’s shares of at least 5 (five) percent) of the voting rights is obliged to submit reports on such share-pledging activities (each report, a “Share-Pledging Report”) to OJK. The five percent is calculated from 1 (one) share-pledging activity or the accumulation of several share-pledging activities. The obligation to submit a Share-Pledging Report shall apply to any change to the percentage unit of the number of shares of the public company during the occurrence of the share-pledging activities.The submission of a Share-Pledging Report to OJK must be conducted no later than 5 (five) days as of the signing of the share-pledging agreement. - Content of the Share-Pledging ReportA Share-Pledging Report shall encompass at least the following information:
- name, address, and citizenship;
- name of the public company’s pledged shares;
- number of shares and ownership percentage of the pledged shares;
- amount of loan encumbered with the pledge of shares;
- if there is any change to the number of the pledged shares, to include the information on the type of transaction or event that results in such a change,
- date and period of agreement;
- if there is any affiliate relationship, to include the information on the nature of the affiliate relationship between the parties.
- Submission of the Ownership Report and the Share-Pledging Report through Electronic System
POJK 4/2024 also includes the government’s intent to establish an electronic system to support the submission of the reporting obligation set out in POJK 4/2024. Upon the availability of such electronic system, an Ownership Report and a Share-Pledging Report must be submitted electronically to OJK no later than 3 days as of (i) the occurrence of ownership of voting rights over shares of a public company or any change to such ownership, or (ii) the signing of the share-pledging agreement. If the foregoing electronic system is not available, an Ownership Report and a Share-Pledging Report shall be submitted to OJK through printed or electronic documents. -
Administrative Sanctions
Failure to submit an Ownership Report or a Share-Pledging Report may result in the imposition of administrative sanctions as set out in POJK 4/2024. Whilst administrative sanctions will be imposed on the party who expressly violates POJK 4/2024, it is also provided that members of a BOD and a BOC of a public company who cause the violation shall also be subject to the imposition of administrative sanctions by OJK.The applicable administrative sanctions under POJK 4/2024 are as follows:
- written reprimand;
- fine which constitutes an obligation to pay a certain amount of money;
- restriction of business activities;
- suspension of business activities;
- revocation of business activities;
- cancellation of approval; and/or
- cancellation of registration.
Please be informed that the above administrative sanctions are not in sequential order. It is fully the discretion of OJK to determine the type of administrative sanctions to be imposed on the relevant violating party(ies). Additionally, the fine may be imposed individually or jointly with the imposition of other administrative sanctions as mentioned above.
In addition to the administrative sanctions, OJK may implement certain actions to any party who violates the provisions under POJK 4/2024. The imposition of administrative sanctions and the implementation of such certain actions may be made publicly available by the OJK.
- Reporting Obligation of Ownership of or Any Changes in Ownership of Public Companies
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Adhitya Ramadhan (aramadhan@aksetlaw.com), or Almira Siti Nadiva Zulfandiari (azulfandiari@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Revisions on the New Importing Provisions for Entry of Hand-Carry Goods
Previously, we issued our Newsflash regarding the new importing provisions for entry of hand-carry goods as regulated under the Minister of Trade (the “MOT”) Regulation No. 36 of 2023 on Import Policies and Regulations as amended by the MOT Regulation No. 3 of 2024 (collectively, the “Import Regulation”). The Import Regulation has been effective since March 10, 2024.
Under the New Import Regulation, returning passengers entering Indonesia (the “Passengers”) may bring certain goods without any import license subject to certain limitations. Please see our Newsflash for more information on such limitations: New Importing Provisions for Entry of Hand-Carry Goods.
However, on April 16, 2024, the Secretary of the Coordinating Ministry for Economic Affairs, Susiwijono Moegiarso, announced that the Import Regulation would be revised. One of the revisions would include the removal of the limitations on the import of hand-carry goods by the Passengers. Such limitations will then only be regulated under the a Minister of Finance regulation.
Since the revision of the Import Regulation is still under the discussion of the relevant government authorities, we will provide an update on this matter once the revision is final and made public.
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com) or Ayu Nandini Prameswari (aprameswari@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Revisions on the New Importing Provisions for Entry of Hand-Carry Goods
New Regulation On Partnerships Within Marine And Fisheries Sector
On October 2, 2023, the Minister of Maritime Affairs and Fisheries (the “MOMF”) issued Regulation No. 31 of 2023 on Partnerships within the Marine and Fisheries Business Sector (“Regulation 31”). Regulation 31 is issued as a follow up to Presidential Regulation (“PR”) No. 10 of 2021 dated February 2, 2021 on Investment Business Fields as amended by PR No. 49 of 2021 dated May 25, 2021 (“PR 10/2021”) which requires several business activities under the marine and fisheries sector to have a partnership with cooperatives and micro, small, and medium enterprises (collectively, the “SMEs”) to be able to conduct its business activities.
Regulation 31 provides detailed provision on the implementation of partnership for businesses with cooperatives and SMEs, such as the types, schemes, procedures, requirements, and evaluation of the partnerships within the marine and fisheries sector.
We set out below certain key points of Regulation 31.
♦ General Overview of Partnership and Types of Partnership
A partnership under Regulation 31 is defined as cooperation in a business relationship either directly or indirectly, on the basis of mutual needs, trust, reinforcement, and benefits, involving SMEs up to large-scale businesses (the “Partnership”).
In line with PR 10/2021, Regulation 31 provides that the Partnership shall be conducted for several business activities under the marine and fisheries sectors, namely the business of fish hatchery, fish rearing, salt production/extraction, fish canning, processing of fisheries products, as well as marketing, distribution, wholesale, and export of fisheries products (all of these business activities are collectively the “Business Activities”).
In this regard, the Partnership shall be conducted by and between:
- a large scale business with the micro, small, and/or medium business;
- a medium scale business with the micro and/or small scale business;
- a large scale business with a cooperative; or
- a medium scale business with a cooperative.
For this purpose, the definition of large, medium, small and micro businesses as well as cooperatives shall be the businesses with the criteria as set out under the prevailing laws and regulations on SMEs and cooperatives respectively.
Regulation 31 provides that the Partnership may be conducted within the stage of (i) pre-production, (ii) production, (iii) post-production, (iv) processing, and/or (v) marketing.
Further to the above, Regulation 31 provides that the Partnership is conducted through a transfer of skill within the field of production and processing, marketing, capitalization, human resources, and technology based on the respective Partnership schemes that we will discuss later in this Newsflash.
The transfer of skill as intended in Regulation 31 explained above may be conducted through several means, such as training, skill development, internship, and supervision.
♦ Partnership Schemes
The Partnership schemes under Regulation 31 are as follows:
- core-plasma;
- subcontract;
- franchise;
- trade;
- distribution;
- supply chain; and
- other types of partnership.
Other types of partnership as stipulated in letter g above may be in the form of profit sharing, operational cooperation, joint venture, and outsourcing.[5]
Further, certain Partnerships may only be conducted for some of the Business Activities as provided under Regulation 31. For instance, the Partnership through the Subcontract scheme may only be for the Business Activity of salt production/extraction, processing of fisheries products specifically for fish fermentation and other cooked products as well as crushed meat and surimi industries, and fish canning.
♦ Requirements of Partnerships
In order to be able to conduct and partake in the Partnership, the large scale business, SMEs, and cooperatives must fulfill several requirement as set out under Regulation 31, as follows:[6]
- a large scale business (i.e., domestic and foreign investment companies) and medium scale business:
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- partnership commitment as evidenced with a letter of commitment;
- technology and management with national and/or international standards as evidenced by certifications;
- a partnership plan;
- business licenses; and
- statement letters of not under court supervision and/or under any legal dispute.
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- Cooperatives and/or SMEs:
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- a partnership commitment as evidenced with a letter of commitment;
- business licenses;
- financial reports;
- a statement letter of having basic equipment for business;
- a valid place of business;
- a fegal entity for cooperatives; and
- a statement letter of not under court supervision and/or under any legal dispute.
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♦ Procedures of Partnerships
The Partnership shall be conducted through 3 (three) procedures, namely (i) identification, (ii) verification, and (iii) facilitation.
Identification
Identification shall be conducted through 2 (two) means, namely (i) mapping, and (ii) application.
Mapping is conducted by the MOMF or relevant Maritime and Fisheries Department Office (the “Department”) through data collection of cooperatives, SMEs, and/or large scale businesses that have the potential to be given the Partnership facilitation. From such mapping of the potential businesses, the MOMF will grant the businesses with the Partnership facility.
Verification
Other than the above, the facilitation of the Partnership may be given through an application by the businesses in the event such businesses are not included within the mapping by the MOMF and the Department as explained above.
The applications submitted by the businesses shall be verified by the MOMF or the Department by examining the completion of requirements as explained in the prior paragraph. If the requirements have been met, the MOMF or the Department may conduct a site visit within 7 (seven) days since the MOMF or the Department deemed the required documents have completed.
Once the documentation and site visit verification have been completed, the MOMF shall grant the businesses with the Partnership facilitation.
Facilitation
Facilitation shall be in the form of business meetings and assistance.
Business meetings shall be conducted by meeting the large scale business with a cooperative and SMEs, or Medium businesses with cooperatives and SMEs. While assistance shall be in the form of at least, financing access, technical assistance for business, business management, institutional enforcement, basic feasibility of processing, enforcement of market access, and/or drafting of a Partnership agreement.
♦ Partnership Agreements
Cooperatives, SMEs, and/or large scale businesses that have been given the Partnership facility shall draft a Partnership Agreement to be able to conduct such Partnership. This Partnership Agreement shall be made in Indonesian or in dual language if the large scale business within the Partnership is a foreign investment company.
The Partnership Agreement shall include at least the following: (i) identities of the parties, (ii) business activities, (iii) right and obligations of the parties, (iv) types of enforcement, (v) period of the Partnership, (vi) the period and mechanism of payment, and (vii) the dispute settlement.
This Partnership Agreement shall be used as the tool by the MOMF and the Department to supervise the implementation of the Partnership.
***
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rizky Rakhmadita (rrakhmadita@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
New Regulation On Partnerships Within Marine And Fisheries Sector
Health Omnibus Law Series – Patients' Consents For Medical Actions
This Newsflash is part of our Health Omnibus Law Newsflash series with respect to the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). As noted in our previous Newsflashes, the Health Law is issued using an omnibus method, revoking several laws and regulations in the health sector (including, among others (i) Law Number 29 of 2004 on Medical Practices (“Law 29/2004”) and (ii) Law Number 36 of 2014 on Health Workers (“Law 36/2014”).
In brief, the Health Law is issued with the intention to enhance public health development for the achievement of national objectives in safeguarding the entire Indonesian citizen to advance the general welfare.
One of the key provisions under the Health Law is the provision on the approvals of medical or dental practice and healthcare workers actions. The several changes from the previous provisions stipulated in Law 29/2004 and Law 36/2014 are as follows:
Consolidation of Provisions Regarding Approval of Action by Medical or Dentistry Practice and Approval of Action by Health Worker
Previously, the approval of action by Medical or Dentistry Practice was stipulated under Law 29/2004, while the approval of action by Health Workers stipulated in a separate regulation i.e., the Law 36/2014. Currently, the Health Law consolidated these two provisions under Paragraph 5 of the Health Law regarding the Approval of Action by Healthcare Services.
The Health Law also governs the new term i.e., "Medical Action" to describe and cover the actions that undertaken by both Physicians or Dentists
Additional Prior Explanation for Obtaining Consent from Patients
Article 45(3) of Law 29/2004 and Article 68(3) of Law 36/2014 govern a similar specific explanations that must be provided before the patients were requested to grant a consent for the action of the health service, which are as follows:
[Article 45, paragraph (3) of Law 29/2004]
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- diagnosis and medical procedure methods;
- purpose of the medical procedure;
- alternative procedures and the risks;
- possible risks and complications; and
- prognosis of the procedure.
[Article 68, paragraph (3) of Law 36/2014]
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- procedures for healthcare services;
- purpose of the healthcare service procedure;
- alternative procedures;
- potential risks and complications; and
- prognosis of the procedure.
Similar to the above, the Health Law also govern the same provisions with the above with the additional explanation on the (i) indications and (ii) risks if the action was not performed. We set out below the provision on the explanation obligation under Article 293 paragraph (3) of the Health Law:
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- diagnosis;
- indications;
- performed Healthcare Service Actions and their purposes;
- potential risks and complications;
- alternative procedures and their risks;
- risks if the action was not performed; and
- prognosis after undergoing the action.
♦ Requirement of the Written Consent
Previously, Law 29/2004 and Law 36/2014 only govern that written consent must be signed by the patient or their representative. Currently, Article 293 paragraph (8) of the Health Law specifically govern that the signing of written consent must be witnessed by a Medical Professional or Healthcare Worker.
Emergency Action Consent
Please note that Law 29/2004, Law 36/2014, and Health Law govern the exemption of obtaining consent for emergency actions in order to protect the patient's best health needs, e.g., in the condition to preserve life and/or prevent disability for the patients. In this regard, Article 293, paragraph (9) of Health Law further stipulates that the consent is not required, if in such emergency situation, the patient was not eligible to provide consent and there was also no other person eligible for providing such consent for the patient.
♦ Requirement of Explanation on Health Service Cost
Article 294 of the Health Law stipulates that patients are entitled to receive explanations from Healthcare Facilities with respect to the costs of the Healthcare Services they received. This provision in the Health Law complements the provision under Law 36/2014, which does not cover the explanation of cost calculation for the performed procedures, and Article 45, paragraph (3) of Law 29/2004, which only broadly mentions that patients should be provided with explanations regarding the incurred cost. The explanation of the cost as stipulated on Health Law is to give the patient the hospital price transparency and to prevent the medical bill surprise.
♦ Requirement on the Health Service Programs from the Government
Article 295 of Health Law stipulates that the Health Services Program from the government does not need a consent from patients. However, the healthcare services must still be communicated to the recipients of those health services. This provision aligns with the provision in Article 69 of Law 36/2014 and Article 15 of Ministerial Regulation 290/2008 concerning Approval of Medical Actions, which is a derivative regulation of Law 29/2004.
October 30, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Raymont Travis (rtravis@aksetlaw.com), or Azzahra Saffanisa Sudiardiputri (asudiardiputri@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Patients' Consents For Medical Actions
Newly Enacted E-Commerce Regulation
In order to protect the interests of micro, small and medium enterprises (SMEs) in Indonesia, on September 25, 2023, the Minister of Trade (“MOT”) issued Regulation No. 31 of 2023 on Business Licensing, Advertising, Guidance and Supervision of Business Actors in Trade via Electronic Systems (“Regulation 31/2023”). Regulation 31/2023 repeals and replaces the MOT Regulation No. 50 of 2020 dated November 19, 2020 (“Regulation 50/2020”).
In Regulation 31/2023 the MOT aims at addressing the concerns of offline shops that claim to be adversely impacted by e-commerce or online shops. Several provisions, particularly the requirements of business registrations under Regulation 50/2020, are retained in Regulation 31/2023. however, new provisions that elaborate further on definitions, business models, and restrictions are introduced in the newly enacted regulation.
We highlight the key changes under Regulation 31/2023 as follows.
♦ Classifications of E-commerce Business Models
Previously, under Regulation 50/2020, merchants or sellers that engaged in trading activities via electronic systems (the “Merchants”) were allowed to advertise their goods or services on social media platforms, including providing direct payment features in such platforms for online trading transactions.
Regulation 31/2023 now specifies the business models of e-commerce into the following: (i) Online Retail; (ii) Marketplace; (iii) Online Classified Advertisements; (iv) Price Comparison Platforms; (v) Daily Deals; and (vi) Social Commerce. With Regulation 31/2023, there is a distinction between a marketplace and a social commerce platform. A marketplace is defined as a provider of facilities in which a part or the entire transaction process is in an Electronic System in the form of a commercial website or an application for Merchants to be able to place offers for goods and/or services (the “Marketplace”). Meanwhile, a social commerce platform is defined as a social media provider that provides certain features and/or facilities that enable Merchants to place offers for goods and/or services (the “Social Commerce”). Further, Regulation 31/2023 prohibits the Marketplace and the Social Commerce from acting as manufacturers.
Both the Marketplace and the Social Commerce are business models that are acknowledged under the non-exhaustive list of business models under Regulation 31/2023. However, considering the above definitions, unlike the Marketplace which may accommodate the transaction process in the platform, the Social Commerce is only allowed to facilitate promotion by way of advertising the goods and/or services and is prohibited from facilitating payment transactions in the platform.
In accordance with the above, social media platforms that fall within the definition of the Social Commerce are now prohibited from facilitating payment transactions. Regulation 31/2023 provides clear guidance that in the event that any social media platform wishes to carry out business by providing facilities, including payment transactions within its platform, such platform must first obtain the required business license as an e-commerce organizer.
♦ Requirements for Foreign E-commerce Merchants
Regulation 31/2023 further sets out additional requirements for foreign e-commerce Merchants such as the provision of evidence for compliance with standards or technical requirements and bank account numbers in addition to the identity of the foreign Merchant and proof of business license(s).
Previously, under Regulation 50/2020, foreign e-commerce was required to establish a representative office in the form of a Foreign Trade Company Representative Office (Kantor Perwakilan Perusahaan Perdagangan Asing or a “KP3A”) if it meets any of the following criteria: (i) it conducted transactions with a minimum of 1,000 consumers within one year; and/or (ii) it delivered at least 1,000 packages to consumers within one year.
Now, Regulation 31/2023 sets out another criterion in relation to such requirement, namely it has had traffic or access from at least 1% of internet users within Indonesia within a one-year period. Further, such KP3A must also obtain a business license as a foreign trade company representative (Surat Izin Usaha Perwakilan Perusahaan Perdagangan Asing) in the field of e-commerce which will be issued by the Online Single Submission (OSS) Agency. A foreign e-commerce’s KP3A may not also represent more than one foreign e-commerce.
♦ Other Restrictions
Regulation 31/2023 further regulates matters related to fair competition among Merchants engaging in trading via electronic systems. Under Regulation 31/2023, e-commerce organizers are required to actively participate in preventing price manipulation practices by ensuring: (i) there is no connection or interconnection between the electronic systems used for e-commerce purposes and other electronic systems that are operated outside the e-commerce facility; and (ii) there is no misuse of user data within their electronic systems or by affiliated companies.
Furthermore, Regulation 31/2023 requires e-commerce organizers that engage in cross-border trading activities to apply a minimum Freight on Board USD100 per unit for Merchants selling imported finished goods to Indonesia. Regulation 31/2023 states that the MOT shall determine a Positive List which list will specify the imported goods allowed to be directly sold from abroad to Indonesia through e-commerce organizers.
♦ Effects on Merchants
Based on the above, we note that the key provisions introduced in Regulation 31/2023 create more rigid provisions and restrictions on the activities of the overall online platforms specifically for e-commerce organizers within social media platforms. Additionally, Regulation 31/2023 raises the minimum barrier for foreign merchants in setting prices to increase the opportunity for domestic goods, as well as to protect local merchants that are small-scale businesses, in order to compete with foreign goods and Merchants.
October 25, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Clara Anastasia So (canastasia@aksetlaw.com), or Rae Chalista (rchalista@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Newly Enacted E-Commerce Regulation
Land Allocation for Investment Arrangement
On October 16, 2023, the President of Republic of Indonesia issued Presidential Regulation No. 70 of 2023 on Land Allocation for Investment Arrangement (“PR 70/2023”). As a background, PR 70/2023 was issued based on the awareness of the Government to increase the effectiveness and efficiency in the utilization of resources for equal investment and public welfare. Further, the Government intends to realize the land allocation distribution in the mining, plantation, and forest sectors for village-owned enterprises, region-owned enterprises, business entities owned by social organizations, cooperatives, and small and medium-size enterprises.
We set out below the key provisions of PR 70/2023.
♦ Key Definitions
It is important to note several definitions provided under the PR 70/2023, as follows:
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- The Task Force for Land Use Arrangement and Investment Arrangement is defined as a task force established by the President of Republic Indonesia in order to arrange the fair land use, arrangement of business licensing for mining, plantation, and forest sector, as well as to increase the effectiveness and efficiency to optimize the utilization of natural resources (the “Task Force”).
- Land is defined as land area designated for mining activities and concession of the utilization of forest or plantation areas.
- The Sector Supervisor (Pembina Sektor) is defined as the Ministers who organize the government affairs in the (i) energy and mineral resources, (ii) environmental and forestry, (iii) plantation, and/or (iv) agrarian/land and spatial planning.
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♦ Duties of Task Force
Article 2(1) of PR 70/2023 stipulates that the duties of the Task Force are, among others:
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- Mapping the use of the land for mining, plantation, and forest utilization activities as a result of the change/revocation of business licensing and concession permits in the forest area;
- Provide the recommendation to the minister/head of agency that administers the Government affairs in the field of investment/coordination on capital investment (Kepala Badan Koordinasi Penanaman Modal or the “Head of BKPM”) to carry out the revocation of business licensing for the mining, plantation as well as concession permits in the forest area; and
- Carry out Land classifications and determine fair allocations of Land in an effort to provide benefits for public welfare.
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♦ Evaluation of Implementation of Business Activities by Sector Supervisor
Article 3(1) of PR 70/2023 provides that the Sector Supervisor shall carry out an evaluation of the business actors on their business licenses in mining, concession permits in the forest area, or plantation sector in accordance with their relevant business licenses. The Sector Supervisor carries out the evaluation of the implementation of business activities on the following factors, among others:
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- Realization of the implementation of business activities in accordance with the purpose of business licenses;
- Completeness of the basic requirements and other relevant licenses and/or concession permits; and/or
- Suitability of the implementation of business activities with the Land designation.
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Based on the above evaluation, pursuant to Article 3(3) of PR 70/2023, the Sector Supervisor shall convey the evaluation report to the Task Force to make changes to the business licenses relating to the reduction of Land area, revocation of business licenses, and/or revocation of concession permits in the forest area.
According to Article 3(4) of PR 70/2023, thereafter, the Task Force shall convey its recommendation to the Head of BKPM to (i) make changes to the business licenses relating to the reduction of Land area; (ii) revoke the business licenses; and/or (iii) revoke the concession permits in the forest area. As for the use of the Land, the Task Force shall convey the recommendation on the deletion of the rights of the land to the minister that administers government affairs in the agrarian/land and spatial planning sector (the “Minister of Agrarian Affairs”).
In light of the above, in accordance with Articles 3(6) and (7) of PR 70/2023, based on the recommendations from the Task Force, the Head of BKPM shall issue the decree letter(s) on the change of business licenses relating to the reduction of the Land, revocation of the business licenses, and/or the revocation of concession permits in the forest area. As for the Minister of Agrarian Affairs, after receiving the recommendations from the Task Force, the Minister of Agrarian Affairs shall delete the rights of the land in accordance with the prevailing laws and regulations.
♦ Classifications of Utilization and Allocation of Land
After the evaluation as elaborated above, in accordance with Article 4(1) of PR 70/2023, the Task Force shall conduct the classifications of the utilization and allocation of the Land. Article 4(4) of PR 70/2023 stipulates that the Land classifications includes (i) the economical potentials, or the natural wealth contained therein; (ii) suitability of the spatial planning with the business activities; (iii) land capacity and environmental protection. Further, based on Article 4(5) of PR 70/2023, the re-allocation of the Land shall be given to the following business actors:
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- village-owned enterprises;
- region-owned enterprises;
- business entities owned by social organizations;
- cooperatives;
- small and medium-size enterprises; or
- large enterprises.
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♦ Allocation of Land for Mining Activities
Based on Article 5(1) of PR 70/2023, based on the classifications of the utilization and allocation of Land, the Sector Supervisor (i.e., the Minister of Energy and Mineral Resources) delegates its authority to determine, offer, and grant Mining Business Permit Areas (Wilayah Izin Usaha Pertambangan or “WIUP”) to the Head of BKPM. Please note that according to Article 5(2) of PR 70/2023, the authority to determine, offer, and grant the WIUP by the Head of BKPM is for the Land derived from the revocation of business licenses before PR 70/2023 is issued. Based on such WIUP, the Head of BKPM conducts an offer and grants the WIUP to the business actor(s). Thereafter, in accordance with Article 5(4) of PR 70/2023, after receiving the WIUP, the business actor shall apply for Mining Business Permit (Izin Usaha Pertambangan or an “IUP”) through the OSS system.
♦ Allocation of Land for Concession Permits in Forest Areas
Based on Article 7(1) of PR 70/2023, the concession permits in the forest areas include (i) the approval of the forest utilization (persetujuan penggunaan kawasan hutan); (ii) the approval of the forest area relinquishment (persetujuan pelepasan kawasan hutan); (iii) the business license of forest utilization; and/or (iv) the business license for the provision of natural tourism facilities (izin usaha penyediaan sarana wisata alam). Article 7(2) of PR 70/2023 further stipulates that the Sector Supervisor (i.e., the Minister of Environment and Forestry) delegates its authority to issue the determination of forest area direction map (peta arahan kawasan hutan or the “Forest Area Map”) and investment arrangement on the Land that has been reduced or revocation of concession permits in forest area to the Head of BKPM.
In accordance with Article 7(3) of PR 70/2023, based on the Forest Area Map and the investment arrangement, the Task Force shall offer the available Land in the forestry sector to business actors. Pursuant to Article 7(4) of PR 70/2023, for a business actor who is interested in the offer of available Land in the forestry sector, the Task Force shall evaluate such business actor based on certain aspects, namely, (i) the potential land area; (ii) completeness of administrative/management requirements; (iii) technical aspect and environmental management; and (iv) financial support. Further, if the business actor fulfils the requirements, the business actor shall apply for the concession permits through the OSS system.
♦ Allocation of Land for Plantation Activities
According to Article 8(1) of PR 70/2023, the Head of BKPM shall determine the availability of the Land in the plantation area that may be allocated to business actors. Thereafter, the Task Force shall offer based on such available Land to business actors. Under Article 8(3) of PR 70/2023, for a business actor who is interested in the offer, the Task Force shall evaluate such business actor based on the same aspects as the concession permits in forest areas (please see the aspects in the allocation of land for concession permits in forest areas’ section above). If the business actor fulfils the requirements, the business actor shall apply for conformity of space utilization activities (Kesesuaian Kegiatan Pemanfaatan Ruang or an “KKPR”) through the OSS system, and the Minister of Agrarian Affairs shall issue the KKPR through the OSS system. Thereafter, the business actor shall apply for the application of the rights of the land to the Minister of Agrarian Affairs.
October 20, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com) and M. Raehan A. Fadila (mfadila@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Land Allocation for Investment Arrangement
Health Omnibus Law Series – Health Law Replaces Law No. 44 of 2009 on Hospitals
This Newsflash is a part of our Health Omnibus Law Newsflash Series on the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including provisions on hospital matters. The Health Law repeals and replaces several laws including Law No. 44 of 2009 dated October 28, 2009 on Hospitals (the “Hospital Law”).
This Newsflash discusses the pertinent changes on hospitals. Please see below the notable provisions related to Hospitals under the Health Law.
♦ General Overview on Hospitals
Previously, the Hospital Law defined a hospital as a health service institution that organizes a complete individual health services that provides inpatient, outpatient and emergency services. As for patients, under the Hospital Law a patient was defined as any person who consults about his or her health problems to obtain the necessary health services, either directly or indirectly at a Hospital.
Now, the Health Law introduces more thoroughs definitions of a hospital and a patient. Under the Health Law, a hospital is defined as a health service facility that organizes a complete individual health services through promotive, preventive, curative, rehabilitative and/or palliative health services by providing inpatient, outpatient and Emergency Care services. A patient is defined as any person who obtains the health services from medical personnel and/or healthcare personnel.
♦ Notable Changes in Health Law
In the Hospital Law, a hospital could be designated as a teaching hospital after the requirements and standards were met. It was also stated that the title of teaching hospitals would be determined by the Minister of Education and Culture of the Republic of Indonesia.
The Health Law now regulates certain new provisions about teaching hospitals, including the new definition of a teaching hospital which is defined as a hospital that has a function as a place of education, research and healthcare services in an integrated manner in the education for medical personnel and healthcare personnel sector as well as multi-professional continuing education.
Under the Health Law, a teaching hospital shall cooperate with a higher education institution to organize an academic education program, a vocational program, and a professional program, including a specialist, or a subspecialist program. In organizing the education, a teaching hospital must meet the requirements, standards and accreditation.
After such fulfilment of the requirements as stated above, the Minister of Education and Culture, along with the relevant accreditation bodies, will grant a permission to a teaching hospital.
♦ Obligations and Rights of Hospitals and Patients
Obligations of Hospitals
Pursuant to the Health Law, a Hospital is required to perform the following obligations:
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- to provide correct information about Hospital services to the public;
- to provide the health services that is safe, quality, anti-discriminatory with prioritizing patients’ interests in accordance with hospital service standards;
- to provide emergency services to patients according to their service capabilities;
- to play an active role in providing health services in the event of disasters according to its services ability;
- to provide facilities and services for underprivileged community or people;
- to carry out social functions, among others, by providing service facilities for underprivileged patients, emergency services without down payment, free ambulance, service for victims of disasters and extraordinary events, or social services for humanitarian missions;
- to create, implement, and maintain the quality standards of health services in hospitals as a reference in serving patients;
- to organize medical records;
- to provide proper public facilities and infrastructures, including places of worship, parking lots, waiting rooms, facilities for persons with disabilities, breastfeeding women, children and the elderly;
- to implement a referral system;
- to reject the patient's wishes that are contrary to professional and ethical standards and applicable regulations;
- to provide correct, clear and honest information regarding the rights and obligations of a patient;
- to respect and protect the rights of a patient;
- to implement the hospital ethics;
- to have an accident prevention and disaster management system;
- to implement the government programs in the health sector, both regionally and nationally;
- to make a list of medical personnel who practice medicine or dentistry and other healthcare personnel;
- to formulate and implement internal regulations of the Hospital;
- to protect and provide legal assistance to all of the staff members of the hospital in carrying out their tasks; and
- to enforce the entire hospital environment as a smoke-free area.
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The Health Law does not introduce any changes with respect to the obligations of hospitals as listed above. However, the Health Law introduces a set of obligations for Health Services Facilities which include hospitals. Therefore, a hospital will be subject to the following obligations set out for the Health Services Facilities:
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- to provide broad access to the needs of services, education, research and service development in the health sector;
- to organize quality health services and prioritizing a patient’s safety;
- to organize medical records;
- to report on the results of services, education, research and development to the Central Government with a copy to the relevant Regional Government through the Health Information System;
- to make efforts to utilize the results of services, education, research and development in a system as an effort to overcome health problems in the regions; and
- to establish the standard operating procedures with reference to health services standards.
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Rights of Hospitals
The Health Law stipulates that a hospital has the following rights:
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- to determine the number, types, and qualifications of human resources according to the hospital’s classification;
- to receive compensation for services and determine remuneration, incentives, and awards according to the provisions of laws and regulations;
- to cooperate with other parties in developing services;
- to receive assistance from other parties in accordance with the provisions of laws and regulations;
- to claim any party that causes losses to the hospital;
- to obtain legal protection in implementing health services; and
- to promote health services in hospitals in accordance with prevailing laws and regulations.
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Obligations of Patients
In relation to the obligations and rights of patients, the Health Law determines the following obligations of patients:
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- to provide complete and honest information about their health problem;
- to comply with the advice and instructions of Medical Personnel and Healthcare Personnel;
- to comply with the provisions that apply to Health Service Facilities; and
- to pay compensation for services received.
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Rights of Patients
Patients have the following rights:
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- to obtain information about their own health;
- to obtain adequate explanation regarding the Health Services they receive;
- to obtain the Health Services in accordance with medical needs, professional standards, and services quality;
- to refuse or agree to any medical action, except for a medical action required for prevention of infectious diseases and management of outbreaks or extraordinary events;
- to have an access to the information contained in the medical records;
- to ask for the opinion of Medical Personnel or Healthcare Personnel; and
- to obtain other rights in accordance with applicable laws and regulations.
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We note that the Health Law does not introduce any major change with respect to the obligations and rights of Hospitals and Patients as set out under the previous Hospital Law.
♦ Hospital Legal Protection and Legal Responsibility
The Health Law provides that a hospital is not legally responsible if a patient and/or his or her family refuses or discontinues a treatment which may result in the death of the patient after a comprehensive medical explanation.
A hospital may not be prosecuted for carrying out its duties in saving human lives.
As to the legal responsibility, the Health Law provides that a hospital may be held legally responsible for all losses incurred due to negligence carried out by the health personnel of the hospital.
Please note that the implementing regulations of the Hospital Law continue to be valid as long as the regulations are not contrary to the Health Law.
September 19, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas P. Wijaya (twijaya@aksetlaw.com), or Rae Chalista (rchalista@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Dispute Settlements between Health Personnel and Patients
This Newsflash is part of our Health Omnibus Law Newsflash series with respect to the issuance of Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). As noted in our previous Newsflash, the Health Law is issued using an omnibus method. The Health Law revokes several laws in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”).
The Health Law governs a wide range of topics in the health sector, including the procedures of settling disputes arising between health personnels and patients.
We highlight the key dispute settlement related provisions under the Health Law, as follows.
♦ Obligation for Health Personnel to Form a Panel of Council in order to Uphold Professional Discipline
The Health Law acknowledges the importance of the enforcement of the Professional Discipline to all health personnel. The Health Law requires the Minister of Health of the Republic of Indonesia (the “Minister”) to form a panel of council to uphold and carry out the duties with respect to the Professional Discipline. The panel of councils may be formed permanently or on an ad hoc basis, at the Minister’s discretion.
The patients or their families whose interests are violated by an action of health personnel may submit a complaint to the panel of council. The complaint shall include at least the following information: (i) the identity of the complainant, (ii) the name and address of the place where the health personnel carry out his/her practice, and (iii) the reason for the complaint. Subsequently, the panel of council will determine whether or not there is a violation of Professional Discipline by the relevant health personnel in providing the health services.
The Health Law governs that any violation of Professional Discipline will be followed up with various forms of sanctions, including (i) a written warning, (ii) an obligation to attend certain education or training session(s) at education providers in the health sector or the nearest teaching hospital which has the competency to conduct the said training, (iii) suspension of the health personnel’s registration certificate (Surat Tanda Registrasi), and/or (iv) a recommendation of practice license (Surat Ijin Praktek) revocation.
Following the decision of the panel of council, under the Health Law it is possible for a patient and/or the relevant health personnel to file a petition for reconsideration (Peninjauan Kembali), as long as any of the following conditions is met: (i) new evidence is discovered, (ii) misapplication of disciplinary violations, or (iii) there was an alleged conflict of interest between the examiner and the examinee.
♦ Obligation for Panel of Council to Issue Recommendation Letters to Examine Health Personnel Suspected of Criminal Actions
Health personnel who are suspected of committing criminal actions may be subject to criminal sanctions. In this regard, the Health Law requires a Civil Servant Investigator Officer or the Indonesian National Police Officer to submit a written request to the panel of council to conduct an investigation on certain suspected health personnel. The panel of council is obliged to issue a recommendation letter within 14 (fourteen) days following the receipt of such written request. The Health Law specifically provides that the recommendation letter issued by the panel of council must contain a written statement to state whether or not the investigation may be carried out, along with the consideration and the basis of the recommendation.
We also note that a recommendation letter issued by the panel of council is not only obligatory for commencing investigation towards any health personnel who are suspected for conducting criminal acts, but also for health personnel who are suspected of conducting civil violations (e.g., causing damages or other material losses to the patients).
♦ Obligation for Health Personnel and Patients to Settle Amicably
In general, the Health Law recommends health personnel and patients to first attempt to settle any dispute amicably outside a court of law.
If the health personnel are suspected of carrying their profession in a manner that causes losses and damages to a patient, any dispute arising of that default shall first be settled through an alternative dispute resolution process outside a court of law.
We note that there are several distinctions in the provisions regarding dispute settlement between the Previous Health Law and the Health Law. The main differences of these two laws in this regard are: (i) the stipulations on the panel of council, (ii) the recommendation letters issued by the panel of council, and (iii) procedures of investigation which. These were not governed in the Previous Health Law.
We also note that the Health Law expressly stipulates that the provisions relating to dispute settlement between health personnel and patients as well as the panel of council, are to be further governed by a Government Regulation.
Accordingly, the implementation of the above provisions remains to be seen. We also anticipate that, considering the objections from the medical society with respect to certain provisions of the Health Law, it is possible the Health Law to be challenged by the medical society or other parties of interest to the Constitutional Court. We will monitor the development and will issue further updates as relevant.
September 18, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Raymont Travis (rtravis@aksetlaw.com), or Esther Christie E. Marpaung (emarpaung@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Utilization of Indonesian and Foreign Medical and Health Personnels
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including utilization of local and foreign health personnel.
As previously noted, the Health Law is issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including (i) Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”), and (ii) Law No. 36 of 2014 dated October 17, 2014 on Health Personnel (the “Health Personnel Law”).
We highlight the main changes pertaining to the utilization of Indonesian and Foreign Medical Personnel and Health Personnel as follows.
♦ Rights and Obligations of Medical and Health Personnel
Prior to the Health Law, provisions relating to the rights and obligations of Medical Personnel and Health Personnel were insufficient and governed under certain implementing regulations of the Previous Health Law. Under the Health Law, the rights of Medical Personnel and Health Personnel are as follows: (i) to receive legal protection as long as they carry out the duties in accordance with professional standards, service standards, standard operating procedures, and professional ethics, as well as needs of a patient’s health, (ii) to receive complete and correct information from the patient or his/her family, (iii) to receive adequate salary/wages, compensation for services, and performance allowances in accordance with applicable laws and regulations, (iv) to receive protection for safety, occupational health, and security, (v) to receive health insurance and employment insurance in accordance with the applicable laws and regulations, (vi) to receive protection from treatment that is contrary to human dignity, morals, decency, and socio-cultural values (including acts of violence, harassment, and bullying), (vii) to receive an award in accordance with the applicable laws and regulations, (viii) to receive opportunity to develop themselves through competency development, knowledge, and career in his/her profession, (ix) to reject the wishes of the patient or other parties that are contrary to professional standards, service standards, standard operating procedures, the code of ethics, or applicable laws and regulations, and (x) to have other rights in accordance with the applicable laws and regulations.
On the other hand, in practicing medicine, the Medical Personnel and Health Personnel shall carry out the following obligations: (i) to provide health services in accordance with professional standards, service standards, standard operational procedures, and professional ethics as well as patient’s health needs; (ii) to obtain an approval from a patient or his/her family for any action to be administered, (iii) too keep a patient’s health confidential, (iv) to prepare and maintain records and/or documents regarding examinations, care, and actions taken, and (v) to refer patients to the Medical Personnel or Health Personnel who have the competence and appropriate authority.
We note that the Health Law expressly stipulates that provisions on the majority of matters governed under the Health Law are to be further governed in Presidential Regulations, Government Regulations, and Minister of Health Regulations. Having said this, the implementation of the Health Law, particularly on the eligibility of foreign medical professionals to practice in Indonesia, remains to be seen. We also anticipate that, considering the objections from certain medical society, there is a possibility for the Health Law to be challenged by the medical society or other parties of interest through the Constitutional Court or Mahkamah Konstitusi.
♦ Eligibility for Indonesian and Foreign Overseas Graduate Medical Personnel and Health Personnel to Practice in Indonesia
The Health Law introduces the eligibility for Indonesian and foreign overseas graduate Medical Personnel or Tenaga Medis (e.g., doctors and dentists) and Health Personnel or Tenaga Kesehatan (e.g., nurses) to practice in Indonesia by fulfilling certain requirements and obtaining certain licenses.
The Health Law stipulates that in order to practice in Indonesia, Indonesian overseas graduate Medical Personnel and Health Personnel are subject to a competency evaluation (i.e., administrative completeness and practice capability assessments) by the Ministry of Health (the “MOH”). Such Medical Personnel and Health Personnel shall then participate in an adaptation program at a Health Service Facility or Fasilitas Pelayanan Kesehatan by firstly obtaining a Registration Certificate (Surat Tanda Registrasi or an “STR”) and a Practice License (Surat Izin Praktik or an “SIP”).
Similarly, foreign overseas graduate Medical Personnel and Health Personnel who intend to practice in Indonesia are subject to a competency evaluation. However, this only applies to specialist and sub-specialist Medical Personnel and Health Personnel with a certain competency level. Such Medical Personnel and Health Personnel shall also participate in an adaptation program by firstly obtaining an STR and an SIP.
One important note is that the Health Law exempts the above requirements to which the overseas graduate Medical Personnel and Health Personnel shall be allowed to practice in Indonesia provided that they (i) graduate from a recognized medical school and have a minimum of 2 (two) years of practice experience abroad (applicable for Indonesian overseas graduates) or 5 (five) years of specialized or sub-specialized or Health Personnel with a certain competency level practice experience abroad, evidenced by a document issued by an authorized institution in the relevant country (applicable for foreign overseas graduate), or (ii) are experts in a certain specific advanced field in medical services, evidenced by a competency certificate, and specifically for foreign overseas graduates, have practiced at least 5 (five) years abroad.
Further, foreign overseas graduate Medical Personnel (specialists and sub-specialists) and Health Personnel (with certain competency level) may practice in Indonesia for so long that the following requirements are fulfilled (i) there is a request from a Health Service Facility based on its needs, (ii) for the purpose of transfer of technology and knowledge, and (iii) for a maximum period of 2 (two) years and may be extended once for the next 2 (two) years.
We understand that with the above provisions the Government intends to address Indonesia’s shortage of doctors and improve the quality of health services, despite concerns from the medical society that the above provisions may impact the availability of job vacancies for Indonesian Medical Personnel and Health Personnel.
Eligibility for Foreign Domestic Graduate Medical Personnel and Health Personnel to Practice in Indonesia The Health Law provides that foreign Medical Personnel and Health Personnel that are domestic graduates may also practice in Indonesia by firstly obtaining an STR and an SIP in accordance with applicable laws and regulations. However, such Medical Personnel and Health Personnel may only practice in Indonesia based on the request of a Health Service Facility for a certain period of time.
September 11, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Thomas Peter Wijaya (twijaya@aksetlaw.com), Datanya N. Kalula (dkalula@aksetlaw.com), or M. Fatih Satria Kasmaliputra (mkasmaliputra@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.
Health Omnibus Law Series – Stipulation on Telemedicine Services
This Newsflash is a part of our Health Omnibus Law Newsflash series, i.e., Law No. 17 of 2023 dated August 8, 2023 on Health (the “Health Law”). The Health Law governs a wide range of topics in the health sector, including Telemedicine services as part of the services of a Health Service Facility.
As previously noted, the Health Law is issued using the omnibus method. The Health Law revokes several laws and regulations in the health sector, including Law No. 36 of 2009 dated October 13, 2009 on Health (the “Previous Health Law”).
Under the Previous Health Law, there were no provisions relating to Telemedicine services. Before the Health Law, Telemedicine services were regulated by the Minister of Health (the “MOH”) Regulation No. 20 of 2019 on the Organization of Telemedicine Services between Health Service Facilities (“Regulation 20/2019”).
With the issuance of the Health Law, Telemedicine services are now governed in a law rather than only in a Ministerial regulation.
Below, we set out the salient provisions of Telemedicine services under the Health Law.
♦ Recognition of Telemedicine
The implementation of health efforts in the form of health services may use information and communication technology through Telehealth and Telemedicine which are integrated with the National Health Information System.
The Telehealth service consists of providing clinical and non-clinical services, in which the clinical services are provided through Telemedicine.
♦ Provider of Telemedicine Services
Telemedicine services may be provided by all Health Service Facilities, as follows:
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- First-level Health Service Facilities, consisting of Public Health Centers (Pusat Kesehatan Masyarakat or Puskesmas), Primary Clinics (Klinik Pratama), and Private Practice of Medical (Praktik Mandiri Tenaga Medis) or Health Care Personnel (Tenaga Kesehatan);
- Advanced Health Service Facilities, consisting of Hospitals, Principal Clinics (Klinik Utama), Health Centers (Balai Kesehatan), and Private Practice of Medical (Praktik Mandiri Tenaga Medis) or Health Care Personnel (Tenaga Kesehatan); and
- Supporting Health Service Facilities.
In providing Telemedicine services, Health Service Facilities may independently provide such Telemedicine services or cooperate with a registered electronic system provider in accordance with the applicable laws and regulations.
Telemedicine services consist of Telemedicine services (i) between Health Service Facilities and (ii) between Health Service Facilities and public. The Telemedicine services provided by the Health Service Facilities shall be conducted by medical or health care personnel who have the relevant practice licenses. Please see our Newsflash on Licensing of Medical and Health Care Personnel: Health Omnibus Law Series – Simplification of Registration and Practice License for Medical and Health Care Personnels.
Further provisions in relation to the implementation of Telemedicine services will be further governed in a Government Regulation (Peraturan Pemerintah). We note from the Health Law that all implementing regulations (including the ones relating to Telemedicine services) shall be issued at least 1 (one) year from the enactment of the Health Law.
As of now, the Government Regulation which will stipulate further Telemedicine services, has yet to be issued. We will issue a continuation of this Newsflash once the Government Regulation relating to Telemedicine services has been issued.
August 31, 2023
AKSET
Please contact Johannes C. Sahetapy-Engel (jsahetapyengel@aksetlaw.com), Radiansyah S. Yamin (ryamin@aksetlaw.com), and Ammarsyarif G. Goenawan (agoenawan@aksetlaw.com) for further information.
Disclaimer:
The foregoing material is the property of AKSET and may not be used by any other party without prior written consent. The information herein is of general nature and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. Specific legal advice should be sought by interested parties to address their particular circumstances.
Any links contained in this document are for informational purposes and are available and relevant at time this publication is made. We provide no liability whatsoever in respect of any information or content in such links.