Deconstructing Fiscal Commitment Post-Law No. 17 of 2023: An Analysis of the Non-Regression Principle and the Impact of Decentralized Discretion on Maternal and Child Health Equity in Indonesia

Abstract

The enactment of Law Number 17 of 2023 concerning Health marks a radical paradigm shift in the legal politics of health financing in Indonesia. This policy abolished the mandatory health spending scheme, which was previously locked at a minimum of 5% of the State Revenue and Expenditure Budget (APBN) and at least 10% of the Regional Revenue and Expenditure Budget (APBD), excluding employee salaries. The government posits that this abolition aims to enhance the efficiency and flexibility of regional budgets through a performance-based budgeting approach. However, removing the floor limit of the national health budget risks triggering a retrogression in regional fiscal commitments (fiscal regression), particularly regarding gender- and child-responsive long-term preventive and promotive programs, such as malnutrition management, stunting prevention, and safe delivery guarantees. Under regional autonomy, these long-term social programs are vulnerable to being sacrificed for physical infrastructure development allocations, which possess instant electoral appeal. This study aims to deconstruct the juridical-philosophical implications of this financing scheme transition on equity in maternal and child health (MCH) services. Specifically, it examines whether the abolition of guaranteed mandatory health spending violates the Principle of Non-Regression in international human rights law and analyzes how regional autonomy affects the stability of health budgeting for vulnerable groups. This socio-legal research employs an interdisciplinary approach that combines normativedogmatic analysis, philosophical reconstruction, and a rights-based policy critique. A systematic qualitative analysis was conducted on regulatory documents, landmark Constitutional Court decisions, regional budget realization data, and budget governance monitoring reports from national supervisory institutions. The study finds that the abolition of mandatory health spending de jure satisfies the criteria for Deconstructing Fiscal Commitment Post... (Yudhi Hertanto Akahira) The copyright of this document is owned by Faculty of Law UNISSULA and is protected by the law ║ 1338 FACULTY OF LAW PROCEEDING OF INTERNATIONAL CONFERENCE ON THE LAW DEVELOPMENT FOR PUBLIC WELFARE ISSN: 2798-9313 LICS 2026 Topic: Strengthening Legal Frameworks for Combating Human Trafficking and Enhancing Protection of Women and Children retrogressive measures or normative retrogression, which contradicts the progressive realization obligation under the International Covenant on Economic, Social and Cultural Rights (ICESCR). Furthermore, disparities in regional fiscal capacity give rise to a "geographical lottery" phenomenon, wherein child survival and the protection of women's reproductive health heavily depend on local local-source revenue capacities. Additionally, the operation of the Political Budget Cycle ahead of Regional Head Elections (Pilkada) systematically drives the diversion of basic health budgets toward short-term populist programs to benefit incumbent electorates. To mitigate the risk of empirical retrogression, this study recommends regulatory reconstruction by establishing a protected, ring-fenced Vulnerable Groups Health Fund within the APBD with a rigid fiscal floor linked strictly to the fulfillment of subnational minimum health service standards (SPM) and backed by central fiscal transfer deduction sanctions.