Conservatorship Depends on Court Judge

Law and Human Rights Ministry expert staff Lucky Agung Binarto giving a statement at the judicial review hearing of Article 433 of the Civil Code, Monday (12/5/2022). Photo by MKRI/Ifa.

Monday, December 5, 2022 | 15:00 WIB

JAKARTA (MKRI) — Judges and courts has a role and function in placing a person under conservatorship in concrete legal circumstances or events as stipulated in Article 433 of the Civil Code (KUHPerdata). In issuing a decision, of course, judges have reasons or considerations that can be accounted for, said Law and Human Rights Ministry expert staff Lucky Agung Binarto at material judicial review hearing of Article 433 of the Civil Code on Monday, December 5, 2022 to hear experts testify for the Petitioners. The petition No. 93/PUU-XX/2022 was filed by the Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi.

Lucky said conservatorship should not be seen as reducing the right to be recognized as an individual before the law but instead must be seen as an action aimed at protecting someone who does not have the capacity to carry out any legal action which, without representation, could actually harm themselves or others.

“Referring to Article 1 point 3 of Law No. 39 of 1999 on Human Rights or the Human Rights Law, which states that discrimination is any restriction, harassment, or exclusion that is directly or indirectly based on differences in religion, ethnicity, race, ethnicity, group, class, social status, economic status, sex, political beliefs that results in degradation, deviation, or elimination of recognition of the implementation of human rights and basic freedoms in life both individually and collectively in the political, economic, legal, social, cultural, and other aspects of life,” Lucky said before Chief Justice Anwar Usman and five other constitutional justices.

He added that by that definition, anyone with simple-mindedness, insanity, or rage who is under conservatorship should not be seen as receiving discrimination because the restrictions and differences in treatment they receive are not based on injustice but for are their own protection.

Lucky asserted that, under the a quo article, in principle everyone has the right to equal treatment and protection before the law and fair assistance and protection from an objective and impartial court. However, the Civil Code emphasizes that vulnerable groups are entitled to more treatment and protection.

“Goven that people who have simple-mindedness, insanity, or rage are vulnerable to various possible risks that could harm themselves and others. Thus, Article 433 of the Civil Code is necessary to protect their rights. Thus, the assistance regulated in Article 433 of the Civil Code is to provide legal protection for both persons with disabilities and for other parties and is not a discriminatory act,” he said.

He further explained that if all humans could support all rights and obligations or legal subjects, it does not mean that all legal subjects could independently exercise their rights through legal actions. For this reason, there must be the ability to act, the authority to take legal action. In general, there are two legal subjects: those legally incapable of taking legal action and those who have limited authority in the sense that they must be accompanied or approved by another person.

Against Convention

The Petitioners also presented Risnawati Utami, a member of the UN committee on persons with disabilities, as an expert. She revealed that Indonesia is a law-based state based on Pancasila that will continue to respect and uphold human dignity as the protection and promotion of human rights for vulnerable groups, especially those with disabilities. She said the Indonesian Government has established various laws and regulations on the protection of people with disabilities. “It is clear that in the context of legislation, our country really supports efforts to continuously promote human rights,” she said.

“However, after some analysis, there is contradiction with the Convention on the Rights of Persons with Disabilities, especially Article 4 on the general obligation or state obligation where once the state has ratified the convention fully domestically, the rights stipulated in the convention [must be protected] without discrimination based on any kind of disability [and] explicitly detailed as a series of obligations,” she added.

Also read:

Petitioners to Eliminate Stigma of Mental Disability in Civil Code 

Petitioners Revise Petition Challenging Stigmatization of Disability

House Talks Definition of Conservatorship 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. 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 12/6/2022 09:34 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.

Monday, December 05, 2022 | 15:00 WIB 307