The judicial review hearing of Article 433 of the Civil Code chaired by Constitutional Justice Suhartoyo, Monday (9/26/2022) virtually. Photo by MKRI/Bayu.
Monday, September 26, 2022 | 18:03 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) held a preliminary hearing for the material judicial review of Article 433 of the Civil Code on Monday, September 26, 2022. The petition No. 93/PUU-XX/2022 was filed by the Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi. They challenge Article 433 of the Civil Code: “An adult, who is in a continuous state of simple-mindedness, insanity or rage, shall be placed under conservatorship, notwithstanding that he might have mental capacity from time to time.”
Before Constitutional Justices Suhartoyo (panel chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh, legal counsel Anang Zubaidy virtually that Article 433 of the Civil Code contradicts Article 28B paragraph (1) of the 1945 Constitution relating to recognition and equality before the law and the principle of fair legal certainty.
“The a quo article treats mental capacity and legal capacity as mutually exclusive, where every adult who is in a continuous state of simple-mindedness, insanity or rage, shall be placed under conservatorship. Even when they might have mental capacity from time to time, they are deemed incapable of making decisions and must be placed under conservatorship,” he said.
Such a disability, he added, was used as an excuse to deny the legal capacity of anyone with mental disability, thus depriving them of the right to be recognized and treated equally before the law. The use of the phrase ‘simple-mindedness, insanity, or rage’ is outdated, demeaning, and not in accordance with health science, especially relating to mental health, and attaches a negative stigma to people with mental disabilities.
In addition, Anang said, Article 433 of the Civil Code has acknowledged that mental disorders can be episodic, by including the phrase ‘notwithstanding that he might have mental capacity from time to time.’ However, it generalizes between episodic conditions and a constant simple-mindedness, insanity, rage, or improvidence when, in fact, not all people with mental disabilities have permanent psychological disorders, for example schizophrenia, which is a non-permanent episodic mental problem. People with such mental disabilities are not always unable to think or act rationally.
Such episodic nature of mental disability nor the healthy condition or clear-headedness of a person with mental disability is often not taken into consideration by the judge when ordering conservatorship. However, such a condition is recognized by the Constitutional Court in Decision No. 135/PUU-XIII/2015, where people with mental disabilities were declared to have the right to vote.
The Petitioners also highlighted that treatment using psychiatric drugs, which is fundamental to the recovery of people with mental disorders, was not discovered when the Civil Code was drafted in 1830. They argued that it is irrelevant to compare mental disabilities in the 21st century to those in the 19th century.
Therefore, in the petitum, the Petitioners requested that the Court declare Article 433 of the Civil Code not legally binding as long as the phrase ‘simple-mindedness, insanity, rage, and/or improvidence’ is not interpreted as persons with mental disability.
Justices’ Advice
Constitutional Justice Manahan M. P. Sitompul recommended that the Petitioners to include the Constitutional Court Regulation (PMK) No. 2 of 2021. “The guidelines for a formal or material judicial review petition is PMK No. 2 of 2021. So please add the Court’s authorities for the completion of this petition,” he said.
He added that in the elaboration of legal standing, it was said that Petitioners II and III were under conservatorship. “It should be emphasized that these two are not under conservatorship,” he asserted.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh highlighted the legal standing of the legal entity. He suggested it be determined who has the right to represent the association in accordance with its statute/bylaw.
“For example, the chairperson and treasurer are mentioned here. Does the statute regulate that? Usually, it is the chair and secretary. It depends on the statute; if it stipulates that, I don’t think it’s a problem. Make sure it is the one who has the authority to represent the private legal entity, especially in court proceedings, especially in the Constitutional Court,” he emphasized.
Before concluding the hearing, Constitutional Justice Suhartoyo said that the Petitioners were given 14 workdays to revise their petition and submit it by Monday, October 10, 2022, no later than 14:00 WIB. “Hopefully the revision can be submitted before that date. Please coordinate with the Registrar’s Office so the next hearing will be scheduled after the agenda of the petition revision is received. A few hours earlier, the softcopy or hardcopy [of the petition] must have been submitted,” he explained.
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Muhammad Halim
Translation uploaded on 10/14/2022 09:49 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
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