House Talks Definition of Conservatorship in Civil Code

House Commission III member Supriansa delivering a statement at the material judicial review hearing of the Civil Code, Wednesday (10/23/2022). Photo by MKRI/Panji.

Wednesday, November 23, 2022 | 15:11 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Article 433 of the Civil Code on Wednesday, November 23, 2022 to hear the House of Representatives (DPR). The petition No. 93/PUU-XX/2022 was filed by the Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi.

House Commission III member Supriansa said virtually that conservatorship is when a person is called a curandus because they are deemed incompetent or in all respects incapable of acting independently legally. They are thus, by a court decision, be declared mentally incapacitated.

“The person is appointed a representative according to law, called a conservator. According to P. N. H. Simanjuntak, conservatorship is a legal effort to regard an adult equal to a minor. Every 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,” Supriansa said at the hearing presided over by Chief Justice Anwar Usman and the other eight constitutional justices.

“In Articles 433 to 462 of the Civil Code (Burgerlijk Wetboek), the reasons that would compel that someone be put under a conservatorship due to their simple-mindedness, insanity or rage and because they are wasteful,” said Supriansa on behalf of the House.

Supriansa asserted that release from conservatorship will not be granted other than with due observance of the procedures determined by law. Persons with disabilities, he added, cannot carry out legal actions independently but are referred to as legal subjects. Therefore, the a quo provision does not eliminate the legal rights of persons with disabilities. It only requires persons with disabilities to exercise their rights and authorities through conservatorship.

Supriansa explained that the provisions on persons with disabilities explains that persons with disabilities are declared not disabled through a district court ruling based on clear reasons and required to present or submit evidence from a doctor and/or psychiatrist. In addition to determining disability, a district court can also annul a declaration of disability.

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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. 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.

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

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti

Translation uploaded on 10/24/2022 20:25 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, November 23, 2022 | 15:11 WIB 423