Do Indonesian Laws and Policies on Covid-19 Countermeasures Action Reflect Legality?

Every citizen has the right to access the resources and health facilities, social security, health services, as well as attaining the highest degree of health. At the present, Covid-19 has become a global pandemic and has been declared a non-natural disaster, which could potentially be related to the citizen’s right to health as regulated with statutory law. This article analyses the dynamics that reflect the legality of national statutory law in the response Covid-19 in Indonesia. This article is based on normative legal research using a statutory approach and conceptual approach. The study found that the right to health has properly been regulated in the Constitution as well as human rights and health-related legislations, reflecting the presence of the state to interfere with the health problems of its citizens. Besides, this study suggests that legal culture, as a component of legal system theory, remains an issue in the efforts of handling the pandemic. There is still a part of the society that is not able to readily and consciously participate and involve in the response to Covid-19 in Indonesia.


Introduction
In terms of conceptual and ideology, Indonesia is classified as a State that tends to follow an open welfare state. 1 The realization of the welfare state is marked by the active role of government and their presence to guarantee, protect, to respect, and to fulfill the citizen's constitutional rights. 2 The right to health is one type of human rights or constitutional rights in the second generation of human rights. Furthermore, the right to health Do Indonesian Laws and Policies on Covid-19 Countermeasures Action Reflect Legality?.

I Made Arya Utama
in specific physical and spiritual prosperity as one type of basic human rights or constitutional rights requires an active role of government to guarantee, protect, respect and fulfill it. 3 In the Indonesian Constitution, the right to health is specifically regulated in Article 28 H (1), that stated: "Every person is entitled … to acquire a good and healthy living environment as well as be entitled to obtain health care". 4 It means that the right to health is considered as one of the constitutional rights that need an active role of government to implement the right to health. 5 The continuing spread of Corona Virus Disease-19 (hereinafter referred to as  in Indonesia forces the government to issue a series of policies in handling infectious diseases. In principle, the government is responsible for the implementation of health services as part of the implementation of good governance and the mandate of the constitution to ensure a decent life in a healthy environment and obtain health services as a consequence of achieving progress and social welfare. 6 From an academic point of view, there is a concern about how the government ensures the implementation of the right to health, through strategic and tactical steps during this pandemic situation. Almost all national agencies and sectoral ministries in Indonesia play a role in addressing pandemic-related problems. The first and most important one is the Ministry of Health. When the pandemic is declared potential to be spread internationally, the Ministry of Health in January 2020 adopted several preventing policies in the form of circulars to ensure the readiness of regional health departments, port health offices, Center for Environmental Health and Disease Control Engineering, and referral hospitals to anticipate the pandemic. 7 The Ministry of Health has continuously issued a series of 3  regulations, circulars, guidelines, decrees, and regular public announcements. 8 This includes the issuing of Guidelines for Prevention and Control of Covid-19, delivering the Self-isolation Protocol, 9 organizing the means of public communication to informing the development of the pandemic, 10 and appointed referral hospital in all provinces. 11 Besides, the Minister of Health holds a strategic authority to approve a large scale social restriction to be established by regional governments in certain areas. 12 The Ministry of Religious Affairs also plays a role in ensuring religious activities are not becoming the media of spreading the Covid-19. The Minister issued circular to manage activities in house of worship, that usually attended by many involve many peoples, are according to health protocol. 13 The Ministry of Law and Human Rights also issued policies in the context of immigration that restricted the coming of international travelers from various suspected countries and areas. 14 Since March 2020, medias mostly reported the role of the National Agency for Disaster Countermeasure (Badan Nasional Penanggulangan Bencana/BNPB) after the President of Indonesia appointed the Head of BNPB as the Chief of Task Force for the Acceleration of Covid-19 handling as well as determined the task force secretariat is at BNPB. 15 In July 2020, the President conducted a restucturization. The taskforce was incorporated into a newly established Committee for the Handling of Covid-19 and National Economic Recovery in order to accelerate the handling of Corona Virus Disease 2019 (Covid-19) as well as recovery and national economic transformation. 16 The creation of such committee was motivated by the fact, that the pandemic has had an impact on people's lives in social aspects, This article is written to explore the meaning of the right to health as contained in, primarily, national legal instruments. It aims to assess the right to health in legal dogmatics and to analyze the legality of countermeasures action in Indonesia and the reflection of the right to health.
This article is qualified into normative legal research 18 that views law as a prescriptive discipline 19 and specifically focuses on the substance of the norms and system hierarchies of laws. The legal sources of this article were collected through the library research method while the normative analysis uses some approaches. The statue approach is used to examine both national and international legal instruments. The conceptual approach is related to the principle of constitutionalism in the context of the rule of law, the right to health, legality, and the politics of national law. The analysis is presented qualitatively by using prescriptive and argumentative techniques.

Right to Health in Legal Dogmatics
At the international level, the "right to health" is widely acknowledged as part of the second generation of human rights along with "economic social," "cultural rights," "labor rights," "right (to) health," "rights (to) education," and "socioeconomic rights," 20 as generally adopted in the International Covenant on Economic, Social and Cultural Rights (ICCPR). This second-generation human rights require institutional support from the state to be exercised independently and singular. 21 The Limburg Principle on the Implementation of ICCPR developed a set of principles on obligations in relation to economic, social, and cultural rights. On the other hand, a comprehensive framework for understanding the legal nature of the norms was found in the ICCPR. 22 It outlines that States parties must at all times act in good faith to fulfill the obligations they have accepted under the ICCPR and have an obligation, regardless of the level of economic development, to ensure respect for minimum subsistence rights for all". 23 At the national level, the right to health aspects can be assessed through some existing laws, regulations, and policies in Indonesia. In specific, the following analysis will assess the national policy direction, whether or not it conforms with international legal instruments or whether or not it can become a guideline for national health policy.
The right to health is currently a legitimate constitutional right. Historically, the general idea of human rights, including the right to health, was not included in the 1945 Constitution of the Republic of Indonesia, following the results of debates between Indonesia's founding fathers during the creating process. 24 After the political reforms at the beginning of the millennium era, human rights were officially included as constitutional rights, as stipulated in Chapter XA. The right to health is explicitly mentioned in Article 28H paragraph (1), as follows, "every person shall have the right to live in physical and mental prosperity, to have a home and to enjoy a good and healthy environment, and shall have the right to obtain medical care." The content of the right to health is also implied in some constitutional provisions related to the Right to life, 25 children's rights to live, to grow and to develop, 26 and the right to access information, especially relating to health information. 27 Article 28I (4) of the Indonesian Constitution makes clear that the protection, advancement, upholding, and fulfillment of human rights are the responsibility of the state, especially the government. The State obligation with regards to the fulfillment of the right to health is becoming part of the constitutional framework of social welfare. The Constitution stipulates that the state shall develop a system of social security for all people. 28 Moreover, the State is responsible to provide sufficient medical and public service 23  facilities. 29 This indicates that Indonesia can be regarded as a civilized country that adopted internationally recognized human rights standards. 30 Law No. 39 of 1999 concerning Human Rights (hereinafter, Human Rights Law) regulates several issues of the right to health. The basic provision places it as part of the right to life, determining that everyone has the right to life and to sustain life as well as to an adequate and healthy environment. 31 Some other provisions are also implicitly related to the recognition of the right to health. This includes the right to grow and develop, 32 the right to obtain communication and information (needed in relation to health); 33 a series of women and children health rights 34 Law No. 6 of 2018 concerning Health Quarantine 35 was created by among others considers that Indonesia, as part of the world community, is committed to making efforts to prevent public health emergencies that troubling the world as mandated in international health regulation by fully respecting dignity, human rights, basics freedom, and its universal application. 36 The law also covers the issue of the right to health. It guarantees the right for everyone to receive the same treatment in administering health quarantine and the right to obtain basic health services according to medical needs, food needs, and other daily life needs during the quarantine. 37 Law 36 of 2009 concerning Health (hereinafter, Health Law) Article 1 No. 1 defines health as a healthy condition comprising all of physically, mentally, spiritually as well as social aspects that enable an individual to live productively both socially and economically. 38 The Health Law explicitly recognizes that every person has the right to health, in the meaning a right to obtain health service from health service facilities in order to realize the highest degree of health. 39 It acknowledges that every person has the same right to obtaining health resources access, the right to obtain safe, quality, affordable health services and the right to independently and responsibly 29 Ibid., Article 34 (3) 30 Insan Firdaus,"Pemenuhan Hak atas Kesehatan melalui Badan Penyelenggaran Jaminan Sosial Kesehatan di Indonesia", Jurnal HAM 5, no. 2 (2014): 122. 31 Article 9 (1) and (3)  determine the health services needed for themselves. 40 Further, it recognizes that every person has the right to obtain a healthy environment to achieve the health standard. 41 Moreover, every person has the right to gain balanced and responsible information and education regarding health. 42 Lastly, every person has the right to gain information about their medical data including action and treatment that he/she has or will receive from the medical personnel. 43 In realizing the right to health, the efforts taken are health efforts as an integrated activity/series of activities with continuous manner maintaining and improving public health degree with disease prevention, improvement of health quality, disease treatment, and recovery of citizen health lead by the government and community, 44 whether in the form of promotion, preventive, curative, rehabilitative and traditional health services.
As a reciprocal to the enjoyment of the right to health, the Health Law also imposes some obligations to every person, among others, to respect the right to health of other peoples, behave in a healthy life, and participate in social health insurance programs. 45 Besides, the Health Law determines some government responsibilities for the availability of the environment, settings, health facilities, and resources, as well as access to information, education, and health service facilities. 46

The Legality of Covid-19 Countermeasures Action in Indonesia and the Reflection of the Right to Health
The government had taken anticipatory steps for the transmission of the coronavirus by increasing alertness and preparedness at national entrances (airports, ports, and land crossing borders), especially those who have direct access to Wuhan or Peoples' Republic of China (PRC). In practice, officials at those entrances operate thermal scanner as early detection of symptoms of fever in incoming travelers. 47 If anyone is indicated to be a potential suspect further examination is carried out and if necessary referred to a hospital. On 5 February 2020, Indonesia has imposed travel 40  The meaning of the right to health as previously described in Section 2.1. does not only to achieving the highest degree of health, but also to include physically, socially, mentally, and spiritually aspects. In an extraordinary situation like a global pandemics demands the presence of the state to take action in addressing the health problems of its citizens by adopting policies.
In order to measure the legality of Covid-19 action policies and countermeasures in Indonesia, Lawrence M. Friedman's legal system theory 49 may be used. The theory suggests three important components in an operating legal system, namely: 50 1. Legal structure, It is parts that move in a mechanism. The structural component is associated with the Indonesian criminal justice system, thus including the structure of law enforcement institutions such as the police, prosecutors, courts, and correctional institutions. 2. Legal substance. It is the products of the legal system in the form of legal rules both written and unwritten. 51 3. Legal culture is a human attitude towards law and the legal system of beliefs, values, thoughts, and expectations. In other words, legal culture is a state of social mind and social forces that determine how the law is used, avoided, or misused. 52 The next analysis will describe how Friedman theory on the relevance in measuring the legality of the Covid-19 countermeasures policy adopted by the National Government

In terms of the Legal Structure
Some national legislation requires the readiness, awareness, and cooperation between the national government, regional governments, and society. Introduction part of the article has previously described some national agencies and sectoral ministries, in terms of executive powers, that play a pivotal role in dealing with the issues of Covid-19.
The Committee for the Handling of Covid-19 and National Economic Recovery in July 2020 was then established in order to accelerate the handling of Covid-19 as well as recovery and national economic transformation. 53 The committee consists of Policy Committee, Covid-19 Handling Task Force; and National Economic Recovery and Transformation Task Force. 54 In carrying out its duties, the committee may involve the ministry, institutions, agencies, local governments, business entities, experts, academics, and other parties as needed. 55 The creation of this committee seems related to the ideal of the national government that repeatedly mentions the term 'new normal era' to indicate the needs of all citizens to apply a new lifestyle that compatible with proper health protocol, and at the same time, begin to work step by step to regenerate the economics.
Law enforcement agencies have also involved in supporting the efforts to overcome legal and societal problems arises from the pandemic. The Chief of Indonesian Police has issued an edict to ensure the society's compliance with government policies with regards to the pandemic countermeasures, including the prohibition to organize community activities which cause a large mass gathering. 56 In terms of law enforcement, all police personnel is required to take necessary policy actions in accordance with the provisions of the applicable laws and regulations if find actions that are contrary to this edict. 57 Those who do not obey the police's call to disperse themselves from the crowd will be charged with multiple provisions, namely Article 212, Article 216, and Article 218 of the Indonesian Criminal Code. 58 The office of the Prosecutor also takes action by Applying a short prosecutor examination for crimes as stipulated in the above Indonesian Criminal Core provisions, 59 but not limited to, the crime of deliberate swarming (intentional crowd). 60 Besides, the Attorney General instructed his subordinates to make efforts, work, activities, and actions for early detection and early warning in the framework of prevention, deterrence, and mitigation of any nature of threats that may arise and threaten national interests and security in order to accelerate the handling of Covid-19, among others, by implementing the investigation/security/raising functions in accordance with the duties and functions of law enforcement intelligence. 61 In the context of the legal proceedings, the Supreme Court issued a circular that guidelines the use of e-court application in the administration of trials and the application of e-litigation in the conduct of trials. 62

In terms of the substance of the law
As previously described, several national legal instruments have been sought at the level of the Constitution, laws, and implementing regulations and technical regulations related to a reflection of the right to health. Specifically, concerning the action of handling Covid-19 at least it can refer to a number of the following arrangements: For decades, Indonesian legislations on health were created incompatible to international health standards. As an example, Law No. 6 of 1962 concerning Plague (hereinafter, Law on Plague) adopted the meaning of plague as stipulated in the 1961 International Sanitary Regulation concerning epidemic. 63 In 1968, Law on Plague was later ammended by Law No. 7 of 1968, classified the Para-cholera El Tor into quarantine diseases by considering the World Health Assembly's Decision in the XV Session regarding cholera (WHO XV Resolution 1962 No. 38 was created to revoke and replace Law on Plague and its amendment. The Elucidation of this Law reflects the idea behind as well as the direction to be achieved by the Law. It, among others, explains that the rapid development of technology and science will affect the environment, way of life, and the development of patterns of disease including diseases that can cause epidemics; thus a type of disease that was not originally a problem can be a problem or vice versa. Disease patterns can be influenced by developments in international traffic and environmental changes. 65 Law on Infectious Diseases authorizes the Minister of Health to determine certain types of diseases that can cause epidemics and to determine certain areas within the territory of Indonesia that have been affected by the plague as the area of the plague. 66 The Law also determines that epidemic countermeasures include epidemiological investigations; examination, treatment, care, and isolation of patients, including quarantine measures; prevention and immunization; annihilation of the cause of the disease; handling of corpses due to outbreaks; public education; and other forms of countermeasures. 67 The above countermeasures shall be implemented by taking into account environmental sustainability and involve community participation actively. 68 Health Law determines that national and regional governments ensure and provide facilities for preventing diseases to avoid or reduce the risks, problems, and adverse effects of the disease. 69 Specifically, this law also covers the issue of infectious diseases. It outlines the responsibility of the national government, regional government, and the community for the prevention, control, and eradication of infectious diseases as well as their consequences. 70 The national government and regional governments periodically determine and the types and spread of potentially infectious and/or infectious diseases in a short period, and mentions areas that can be a source of transmission, may conduct surveillance of infectious diseases and determine the types of diseases that require quarantine, quarantine place, and quarantine duration. 71 The Government, in carrying out efforts to prevent, control and eradicate infectious diseases, may declare an area is in an epidemic or extraordinary occurrence by taking into account a reliable  74 This law determines that The government and regional government are responsible for the implementation of disaster management that consists of 3 stages, namely pre-disaster; emergency response period; and post-disaster. 75 The Law of Health Quarantine was then used as a legal basis by the President to issue a decree that stipulating the pandemic Covid-19 as a public health emergency. 76 The national government also created regulation to provide a legal basis for establishing a large-scale social restriction. 77 Some technical regulations include the substance of infectious disease handling. As an example, the Regulation of Minister of Health No. 82 of 2014 concerning the Management of Infectious Diseases determines that Infectious Disease Management is carried out through public health efforts and individual health efforts. 78 The regulation also distinguishes the target of infectious disease management programs based on the prevalence/incidence of illness and infectious disease characteristics, including reduction, elimination, and/or eradication. 79

In terms of legal culture
Some laws and regulations put community involvement as an important aspect to address the plague. The Health Law acknowledges the community participation, both individually and organized, in all forms and stages of health development to accelerate the achievement of the highest degree of public health, which includes active and creative participation. 80 Basically, everyone can participate in the prevention of epidemics in the form of providing power, expertise, fund other types of assistance that are carried out by informing the presence of patients or suspects of plague sufferers, helping the smooth the implementation of pandemic 72 Ibid., Article 156 (1) 81 Facts in society indicate that there have been many violations of the rules that are applied for the pandemic situation. Despite the massive daily based-public information regarding the catastrophic resulted from the spread of Covid-19, not all peoples are comply to laws and regulations in handling the pandemic. The government decided not to apply a lock-down policy as practiced in various countries opens the opportunity for some peoples to do daily activities. Therefore, preventive-curative measures are needed.
The creation of technical policies, decrees, and regulations that refer to health surveillance may consider social, economic, and cultural situations of the community. 82 This will ensure that those law products reflect the real life of the society. Related to the regulation of large-scale social restrictions, the expected direction of the construction of legal culture is the existence of community compliance as a legal objective. 83 Experts also argue that a weak culture of obeying laws/rules in the community can extend the handling period of the Covid-19. The legal culture is related to public observance and firmness of the authorities. 84 There is also an expert who considers that the legal awareness of the public to comply with social restrictions on a large scale becomes important because these restrictions do not have criminal implications or sanctions that are coercive. The concept of legal awareness, which is related to the theory of legal culture, conceives the awareness to act in accordance with the provisions of the law, so it is a bridge that connects regulations with the legal behavior of community members. Thus, no matter how good the rules that are made if it is not supported by the legal awareness of the community it will be not very useful. 85 Theoretically, the legal culture of a community depends on the legal culture of its members which is influenced by their educational background, environment, culture, position, and even interests. 86 Legal culture contains components of values and attitudes that put it within the cultural framework of society so that it is crucial for the operation of law in society. 87 Therefore, the theory of legal culture can explain why a series of rules issued to handling the pandemic is not fully obeyed by the peoples in Indonesia.

Conclusion
Based on the results and discussions above, there are several conclusions as follows: 1. The right to health meaning is holistic, not only includes the achievement of the highest degree of health but also how health is measured both physically, socially, mentally, and spiritually. The right to health has been classified as a constitutional right, following its stipulation in the 1945 Constitution of the Republic of Indonesia. It is also enshrined in some legislations, among others Law No. 39 of 1999 concerning Human Rights, Law No. 6 of 2018 concerning Health Quarantine, and Law 36 of 2009 concerning Health. This reflects the presence of the state to interfere with the health problems of its citizens. 2. The three theoretical components in the operating legal system, namely legal structure, legal substance, and legal culture are used to assess the legality of Covid-19 countermeasures action in Indonesia. In terms of the substance of the law, a set of statutory laws applied for the pandemic countermeasures has been in line with the meaning and reflection of the right to health. This article found a synergy between relevant agencies authorities when conducting efforts to counter measuring Covid-19, reflecting a workable legal structure. The component of legal culture seems to need to be addressed, following the disobeying of a part of society, that indicates their unreadily and unconsciously to participate and to involve in the response to Covid-19. Therefore, it is necessary to pursue their participatory, preventive, and high awareness measures.