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Eduvest �
Journal of Universal Studies Volume 4 Number 09, September, 2024 p- ISSN 2775-3735- e-ISSN 2775-3727 |
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JURIDICAL ANALYSIS OF THE MANDATORY VACCINATION PROGRAM IN
COMBATING THE COVID-19 VIRUS |
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Andhi Rahmaan Indra Rukaman1,
Tomy Michael2� 1,2, Universitas
17 Agustus 1945 Surabaya, Indonesia |
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ABSTRACT |
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Vaccination implementation became mandatory after the issuance of
Presidential Regulation no. 14 of 2021 concerning amendments to Presidential
Regulation no. 99 of 2020 concerning Procurement of Vaccines and
Implementation of Vaccinations in the Context of Combating the 2019 Coroiva
Virus Dtsease (Covid-19) Pandemic. 14 of 2021 concerning amendments to
Presidential Regulation no. 99 of 2020 concerning Procurement of Vaccines and
Implementation of Vaccinations in the Context of Overcoming the Covid-19
Pandemic. this is contrary to Law No. 33 of 2014 concerning Halal Produce in
Article 4. The results of the research show that the Implementation of
Vaccinations is mandatory. Conflict of regulations regarding Vaccine
obligations based on Presidential Regulation. In this case the Regulations
President No. 14 of 2021 concerning amendments to Presidential Regulation no.
99 of 2020 concerning Procurement of Vaccines and Implementation of
Vaccinations in the Context of Handling the 2019 Coroiva Virus Disease
(Covid-19) Pandemic, it is the opposite, however, due to the massive spread
of the Covid 19 virus plus the declaration of a health emergency, it is based
on the principle of Salus populi suprema est where the safety of the people
is more important. What is meant in this case is that under the threat of
situations and emergencies, the safety of the people must be the most
important goal, including if the rule of law must be set aside. |
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KEYWORDS |
Mandatory Vaccine, Control, Covid
19 Virus |
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This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International |
����������������������������������������������� INTRODUCTION
At the beginning of 2020, Indonesia faced a
challenging period. On March 2, 2020, two Indonesian citizens tested positive
for the COVID-19 virus, believed to have originated from Wuhan, China.
According to data from the World Health Organization (WHO), by March 1, 2020,
the virus had spread to approximately 65 countries worldwide.
Since this infection might be a new type of modern
virus, data related to it was limited, and research was ongoing. There was no
certainty about how effective treatments could halt the spread of COVID-19. One
of the treatments said to be effective in dealing with COVID-19 was
vaccination. However, the problem was the lack of a safe and effective vaccine
against this virus. This was often the case due to the limited data on the
infection's characteristics, which were still in the early stages of study.
From March 2, 2020, to March 31, 2020, there were
1,528 positive COVID-19 cases, with 136 deaths reported in Indonesia. The
country experienced a higher mortality rate compared to the People's Republic
of China (8.9% vs. 4%). Medical facilities in Indonesia were not prepared to
face COVID-19 at that time. Significant adjustments were necessary at the onset
of the outbreak in Indonesia. Therefore, it was important to remind everyone
that, as early as January 2020, this situation could become a global upheaval.
Plans for preparedness were implemented to ensure the availability of personal
protective equipment (PPE) and the necessary human resources.
In Indonesia, the rapid spread of the virus led
President Joko Widodo to declare a health emergency by issuing Presidential
Decree No. 11 of 2020 on the Declaration of a Public Health Emergency of Corona
Virus Disease 2019 (COVID-19). The government's declaration of an emergency had
at least two reasons: an extraordinary danger and an immediate threat to the
nation's survival caused not only by natural disasters but also by human
actions, such as terrorism threats or attacks. The implementation of an emergency
was due to an urgent and compelling process.
In response to the health emergency, besides
issuing Presidential Decree No. 11 of 2020, the government also issued Law No.
2 of 2020 on the Stipulation of Government Regulation in Lieu of Law No. 1 of
2020 on State Financial Policy and Financial System Stability for Handling the
COVID-19 Pandemic and/or in Facing Threats that Endanger the National Economy
and/or Financial System Stability.
The issuance of Law No. 2 of 2020 as an urgent
consideration was based on the objective conditions in Indonesia, as mentioned
in the preamble, aiming to improve the mechanism for creating, stipulating, and
revoking Government Regulations in Lieu of Laws (PERPPU).
During the vaccine shortage, the government
encouraged the public to practice social distancing, frequently wash hands with
soap and water, eat well, and get enough rest to maintain immunity. Social
distancing and other measures, such as Large-Scale Social Restrictions (PSBB)
and Micro-Based Community Activity Restrictions (PPKM), were implemented to
curb the spread of COVID-19. Despite these efforts, they did not fully contain
the spread of the infection.
The government's other effort to combat the virus
was to provide open immunization vaccines. This vaccination effort was to
ensure the health of all citizens amidst the expanding pandemic. The COVID-19
inoculation program had begun in several countries. However, it would take a
long time to achieve herd immunity, requiring about 70% of Indonesia's
population to be immunized, approximately 181 million people. Accessibility to
antibodies was essential, needing around 400 million doses of antibodies, with the
vaccination program expected to be completed within 15 months (by 2022).
The government showed seriousness in handling
COVID-19 by enhancing control over the vaccination program. The government
issued Presidential Regulation No. 14 of 2021, a revision of Presidential
Regulation No. 99 of 2020, regarding the procurement of vaccines and the
implementation of vaccinations. This regulation demonstrated the commitment to
carrying out the COVID-19 immunization program and imposed sanctions and fines
on those refusing vaccination.
The imposition of sanctions and fines for refusing
vaccination by the government was based on the principle that health is one of
the most critical human needs and part of human rights (HAM). As part of human
rights, realizing the right to well-being required facilities and a framework,
such as adequate health facilities (faskes) or health
services. Human Rights (HAM) are vital in human life, and everyone is born with
them. Other individuals should not interfere with everyone's human rights, and
all should uphold human rights. Society should understand and recognize human
rights as a prerequisite for being good citizens.
The implementation of vaccination in Indonesia
sparked both support and opposition. Those who supported vaccination believed
that antibodies could strengthen the immune system, thus protecting themselves,
their families, and others. They believed that if infected with COVID-19, the
impact would be less severe. Vaccination was seen as increasing the body's
vulnerability to the virus, making it less likely for vaccinated individuals to
contract the virus.
The most significant opposition to vaccination came
not only from the spread of hoaxes about vaccine side effects but also concerns
about the vaccines' halal status. The first vaccine to arrive in Indonesia was
Sinovac, with 1.2 million doses, followed by another 1.8 million doses on
December 31, 2020, totaling 3 million doses from
China.
The next vaccine was AstraZeneca, produced in the
UK. Both vaccines received emergency use authorization from BPOM (the Food and
Drug Monitoring Agency). However, there were differences in their halal status.
The Sinovac vaccine was deemed halal based on the Indonesian Ulema Council
(MUI) Fatwa No. 02 of 2021, while the AstraZeneca vaccine was considered haram
but allowed under emergency conditions according to MUI Fatwa No. 14 of 2021.
The halal status of these vaccines led to
significant opposition to vaccination, especially when the government mandated
vaccination based on Presidential Regulation No. 14 of 2021, which amended
Presidential Regulation No. 99 of 2020 on Vaccine Procurement and Vaccination
Implementation. The regulation stipulated sanctions and fines for those
refusing vaccination.
Presidential Regulation No. 14 of 2021 conflicted
with Law No. 33 of 2014 on Halal Products, which states in Article 4 that
"Products entering, circulating, and traded in Indonesia must be halal
certified."
The mandatory vaccination requirement based on
Presidential Regulation No. 14 of 2021, where most vaccines were declared
haram, seemed to contradict Law No. 33 of 2014, Article 4. This conflict
between the two regulations posed challenges in implementing the vaccination
program on the ground. This prompted the author to conduct a study titled
"Juridical Analysis of the Mandatory Vaccination Program in Combating the
COVID-19 Virus."
RESEARCH
METHOD
In
terms of research type, this study is a socio-legal research,
utilizing a statutory approach, a socio-legal approach, and a conceptual
approach. The statutory approach involves an in-depth examination aimed at
understanding the implementation and legal basis of mandatory vaccination and
analyzing it within the framework of statutory regulations.
Implementation of Mandatory Vaccination
The widespread spread of the
Covid-19 virus, causing many people to be infected and even die, forced the
Government to take various measures to control the epidemic, certainly by
preparing healthcare facilities. Before the existence of vaccines, the
government urged the public to follow Health Protocols such as wearing masks
over the nose, washing hands, and maintaining physical distancing. In addition
to that, the Indonesian Government prohibited its citizens from traveling
abroad by closing different routes, discussing and restricting transportation
to those places, by implementing the PSBB (Large-Scale Social Restrictions)
Program for citizens who want to leave or enter the city, it is mandatory to
include a health certificate free from exposure to Covid-19 infection.
As a Constitutional State as
stated in the 1945 Constitution of the Republic of Indonesia Article 1
paragraph 3 that Indonesia is a Constitutional State. The mention of the term
"Constitutional State" in general description asserts that the Constitutional
state is a motivation that does indeed have an impact on the establishment of
the Indonesian state. individuals and their authors who essentially do not
equate the meaning of the state with the law of the Indonesian state, because
both are found between two philosophical foundations and social rationalities
of a very diverse society.
Referring to Indonesia as a
Constitutional State and not a Power State certainly has an impact on every
step taken by the leader or President must comply with the applicable Law or
there must be a Legal basis, so whatever efforts the government makes to prevent
the Covid 19 Virus must have a Legal basis, therefore President Joko Widodo
established a health emergency situation by issuing Presidential Decree Number
11 of 2020 concerning the determination of a public health emergency situation
for Corona Virus Disease 2019 (Covid-19).
The determination of this
emergency situation is due to the period from March 2, 2020, to March 31, 2020,
there were 1,528 positive cases of Covid-19 and 136 people died related to
Indonesia and the disease. this country experienced a much higher level of
casualties compared to the People's Republic of China (8.9% vs. 4%). So the determination of a health emergency status is
considered appropriate to take steps to stop the spread of the virus.
One of the steps taken by
the Government in tackling the Covid Virus outbreak is by promoting the
Vaccination program. In July 2021, the government accelerated the Vaccination
Program by holding mass vaccinations aimed at reaching the target of 75% of the
Indonesian population vaccinated, so that the community is safe from Covid-19
infection (crowd insusceptibility). to secure themselves and others.
The implementation of
Vaccination becomes mandatory vaccination after the issuance of Presidential
Regulation No. 14 of 2021 concerning amendments to Presidential Regulation No.
99 of 2020 concerning the Procurement of Vaccines and the Implementation of Vaccinations
in the Context of Handling the Pandemic Coroiva Virus
Disease 2019 (Covid-19), in this regulation not only related to the technical
implementation of Vaccination but there are also sanctions or fines for people
who do not even refuse Vaccination.
Based on Presidential
Regulation No. 14 of 2021 concerning amendments to Presidential Regulation No.
99 of 2020 concerning the Procurement of Vaccines and the Implementation of
Vaccinations in the Context of Handling the Pandemic Coroiva
Virus Disease 2019 (Covid-19), not only contains the procedures for
implementing Vaccination but there are also Sanctions for those who have
entered the data and are considered eligible to receive the vaccine but do not
follow Vaccination, there are 2 Sanctions:
a. Administrative Sanctions
These administrative
sanctions are given to Communities who do not follow the Vaccination Program,
these administrative sanctions are in the form of:
1)
Postponement or cessation of social security or social security
2)
Postponement or cessation of government administrative services
3)
Fines
The implementation of
Administrative Sanctions is carried out by the Ministry, Institution, Regional
Government, or agency in accordance with their authority.
b. Criminal Sanctions
The classification of
criminal sanctions is different from administrative sanctions, which are
directed at individuals who not only do not follow the vaccination program but
also interfere with the prevention of the spread of Covid. There are two
classifications in imposing Criminal Sanctions, namely
1)
Criminal penalties of 1 Year and or / fines of Rp. 1,000,000 for the
public who intentionally obstruct the handling of the epidemic.
2)
Criminal penalties of 6 Months and or / fines of Rp. 500,000 for the
public who are negligent / Forget causing obstruction to epidemic control.
Legal Analysis of
Mandatory Vaccination
The word "Law," in
the Indonesian language often used as a substitute for the Dutch word
"Recht," comes from the distant dialect "Rectum," which
means "straight." trainer or pioneer. In Latin, the word ius is part of
the word iustitia which means justice and law. In
this way, the Law is related to justice. From the description above, it can be
said that etymologically, law can be interpreted as a performance that includes
the right to mention, separate, or change conditions or events to obtain
justice.
Meanwhile, according to the
Utrecht Concept of Law is a set of rules (Recommendations and Prohibitions)
that direct the regulation of certain zones. Society must adapt. Therefore,
misuse of the Law can result in legitimate actions by the government/authorities.
Law is made for society. Law must be based on the improvement of society. They
have a fundamental nature of authority, social commitment to follow and comply
with regulations/laws.
Indonesia is a
Constitutional State as evidenced by Article 1 paragraph 3 of the Republic of
Indonesia Law stating that Indonesia is a Constitutional State, the legal
system of the Indonesian Constitutional State with a hierarchical legislative
system or commonly called the Hierarchy of Legislation, based on Law No. 12 of
2011 concerning the formation of legislation, the sequence of the Indonesian
Legislative Hierarchy:
a. Constitution of the
Republic of Indonesia 1945
b. MPR Decree
c. Law or Government
Regulation in Lieu of Law (Perpu)
d. Government Regulation
e. Presidential Regulation
f. Provincial Regional
Regulations
g. District/City Regional
Regulations
As a constitutional state as
intended in Article 1 paragraph (1) of the 1945 Constitution of the Republic of
Indonesia (State of the Republic of Indonesia 1945), everything must refer to
the law. But does this notification nature direct the state to act beyond the
law? From the perspective of a modern constitutional state that separates
Private affairs from the State. Because of its limitations, Private cannot be
claimed as part of the state.
Referring to the legal basis
for the Implementation of Mandatory Vaccination, namely Presidential Regulation
No. 14 of 2021 concerning amendments to Presidential Regulation No. 99 of 2020
concerning the Procurement of Vaccines and the Implementation of Vaccinations
in the Context of Handling the Pandemic Corona Virus Disease 2019 (Covid-19)
where the regulation follows up on the declaration of a health emergency in
Presidential Decree Number 11 of 2020 concerning the determination of a public
health emergency situation for Corona Virus Disease 2019 (Covid-19).
The statement of the
Vaccination obligation is based on the rules in Presidential Regulation No. 14
of 2021 concerning amendments to Presidential Regulation No. 99 of 2020
concerning the Procurement of Vaccines and the Implementation of Vaccinations
in the Context of Handling the Pandemic Corona Virus Disease 2019 (Covid-19),
there are sanctions or fines for those who refuse, so this phrase is considered
the implementation of mandatory Vaccination, of course, there are exceptions if
there are situations that are not possible.
The fundamental problem is
that the Vaccination obligation imposed by the Government cannot be accompanied
by sufficient Halal Vaccines provided by the government in the vaccination
program. Of course, this is contrary to Article 4 of Law Number 33 of 2014
concerning Halal Product Assurance.
Referring to the principle
of Law lex specialis derogat
legi generali where Special
Law overrides General Law and also Lex Superior Derogat
Legi Inferiori the lower law cannot contradict its
higher law.
Lex Superior Derogat Legi Inferiori
The legal basis for
Mandatory vaccination uses Presidential Regulations where, in terms of the
Hierarchy of Regulations, Presidential Regulations are still below the Law, in
this case Law Number 33 of 2014 concerning Halal Product Assurance.
Lex Specialist Derogat Legi Generali
That Presidential Regulation
in this case Presidential Regulation No. 14 of 2021 concerning amendments to
Presidential Regulation No. 99 of 2020 concerning the Procurement of Vaccines
and the Implementation of Vaccinations in the Context of Handling the Pandemic
Corona Virus Disease 2019 (Covid-19) where it talks not only about sanctions
and fines but also about the implementation of Vaccination itself, but Law
Number 33 of 2014 concerning Halal Product Assurance talks about products used
or marketed in Indonesia must be certified halal, so if referring to Vaccines
then Law Number 33 of 2014 is more specific in discussing halal labels.
Looking at the above
discussion, it is clear that Presidential Regulation No. 14 of 2021 concerning
amendments to Presidential Regulation No. 99 of 2020 concerning the Procurement
of Vaccines and the Implementation of Vaccinations in the Context of Handling
the Pandemic Corona Virus Disease 2019 (Covid-19) if collided with Law Number
33 of 2014 then it does not have legal certainty.
However, if we look more
closely, the implementation of mandatory vaccination based on Presidential
Regulation No. 14 of 2021 concerning amendments to Presidential Regulation No.
99 of 2020 concerning the Procurement of Vaccines and the Implementation of
Vaccinations in the Context of Handling the Pandemic Corona Virus Disease 2019
(Covid-19) is not immediately implemented by the government.
Covid-19 vaccines that have
been authorized by BPOM have gone through a long process to ensure their safety
and effectiveness by conducting various research and trials. The effectiveness
of each Covid-19 vaccine product varies depending on the variant of the
Covid-19 virus it faces. Various variants of Covid-19 that enter Indonesia
include: Alpha, Beta, and Delta. Therefore, from the explanation above,
vaccination efforts in dealing with the Covid-19 virus are very important and
can be justified by various effectiveness.
Seeing the increasing number
of people affected by the Covid Virus, of course, conflicting legal rules can
be set aside because saving more lives becomes a state obligation, moreover,
the Right to Health, including Human Rights, according to Pancasila, in
Pancasila itself that Human Rights is the basis for other rights and
obligations.
Referring to the principle
of Salus populi suprema est where there is a
collision of Law related to the Vaccination obligation between Presidential
Regulation No. 14 of 2021 concerning amendments to Presidential Regulation No.
99 of 2020 concerning the Procurement of Vaccines and the Implementation of
Vaccinations in the Context of Handling the Pandemic Corona Virus Disease 2019
(Covid-19) with Law Number 33 of 2014, it can be set aside.
In addition to collaborating
with BPOM, the government also collaborates with the MUI institution as an
institution that provides fatwas on prohibition, permissibility, permission,
and prohibition in Vaccines, so the government's efforts in this regard can be
justified.
CONCLUSION
From the above discussion,
the following conclusions can be drawn: Vaccination became mandatory after the
issuance of Presidential Regulation No. 14 of 2021 amending Presidential
Regulation No. 99 of 2020 concerning the Procurement of Vaccines and the
Implementation of Vaccinations in the Context of Handling the Pandemic Corona
Virus Disease 2019 (Covid-19). This regulation not only pertains to the
technical implementation of vaccination but also includes sanctions for those
who refuse or reject vaccination. The sanctions are in the form of
administrative and criminal penalties.
In the clash of rules
related to the vaccination obligation based on the Presidential Regulation,
specifically Presidential Regulation No. 14 of 2021 amending Presidential
Regulation No. 99 of 2020 concerning the Procurement of Vaccines and the
Implementation of Vaccinations in the Context of Handling the Pandemic Corona
Virus Disease 2019 (Covid-19), with Law Number 33 of 2014 concerning Halal
Products, then based on the principle of Legal Basis or Hierarchy of
Legislation, the Presidential Regulation in this case, Presidential Regulation
No. 14 of 2021 amending Presidential Regulation No. 99 of 2020 concerning the
Procurement of Vaccines And the Implementation of Vaccinations in the Context
of Handling the Pandemic Corona Virus Disease 2019 (Covid-19) would contradict.
However, due to the massive spread of the Covid-19 virus and the declaration of
a health emergency, based on the principle of Salus populi suprema est, where the welfare of the people is paramount, in this
case meaning that under the threat of emergency situations, the safety of the
people must be the foremost objective, including if it requires setting aside
legal regulations.
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