Petitioners Revise Petition Challenging Stigmatization of Disability

The material judicial review hearing of Article 433 of the Civil Code, Wednesday (10/12/2022). Photo by MKRI/Bayu.

Wednesday, October 12, 2022 | 16:58 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held another material judicial review hearing of Article 433 of the Civil Code on Wednesday, October 12, 2022 to hear the revisions to petition No. 93/PUU-XX/2022 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.”

Virtually before Constitutional Justices Suhartoyo (panel chair), Manahan M. P. Sitompul, and Daniel Yusmic P. Foekh, legal counsel Anang Zubaidy said that the petition had been revised by adding the Constitutional Court Regulation (PMK) No. 2 of 2021. “We revised it on pages 2, 3, and 5,” he said.

The Petitioners, he said, had also reviewed the Court’s decisions on the Civil Code, such as No. 4/PUU-IX/2011, 100/PUU-XIV/2016, 65/PUU-XVII/2019, 77/PUU-XVIII/2020, and 1/PUU-XIX/2021. “The revisions or additions are in point 9 on page 6,” he added.

The legal standing of Petitioner I was also revised by adding its deed.

Also read: Petitioners to Eliminate Stigma of Mental Disability in Civil Code 

At the preliminary hearing, legal counsel Anang Zubaidy argued 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 article used disability—simple-mindedness, insanity, or rage—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.

He added that Article 433 of the Civil Code acknowledges 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.

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 if the phrase ‘simple-mindedness, insanity, rage, and/or improvidence’ is not interpreted as persons with mental disability.

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Muhammad Halim

Translation uploaded on 10/17/2022 21:55 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.

Wednesday, October 12, 2022 | 16:58 WIB 111