Expert: Conservatorship Not a Form of Protection
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Fajri Nursyamsi testifying as an expert for the Petitioners at the judicial review hearing of Article 433 of the Civil Code, Tuesday (12/13/2022). Photo by MKRI/Ifa.


Tuesday, December 13, 2022 | 16:35 WIB

JAKARTA (MKRI) — In the development of protection of human rights, conservatorship is not considered a form of protection because protection means that everyone’s rights are not violated or deprived. Meanwhile, the provisions on conservatorship in the Civil Code actually emphasizes transfer of rights. This statement was made by Fajri Nursyamsi, an instructor at the Jentera School of Law, as an expert at the judicial review hearing of Article 433 of the Civil Code on Tuesday, December 13, 2022.

He explained further that in Article 452 of the Civil Code, which is under the scope of Article 433, reads, “An individual placed in conservatorship shall be deemed to be of equal status to a minor.” This article, he asserted, emphasizes that there is an assumption that an adult becomes equal to a minor, someone who has rights becomes without rights.

“Conservatorship is not protection. If it is implemented on someone, the person is considered not having the capacity to take civil actions. Some people who are able [are then considered] incapacitated,” Fajri explained before Chief Justice Anwar Usman and the other eight constitutional justices.

He said the capacity of anyone under conservatorship to take civil legal actions is transferred to the guardian. “This is a context that emphasizes that there is a transfer of responsibility and there are rights transferred alongside them. Therefore, it is not wrong to say that conservatorship equals taking control over a person by another person and it is a form of discrimination,” he explained.

Fajri also emphasized that when human rights were seen as an aspect that generalized everyone, but in the 90s certain groups had been highlighted due to differences among staff members or groups.

“Article 1 point 3 of the Human Rights Law only mentions certain groups because the reference has not used a developing reference and it seems as if it nullified the development of the concept of human rights itself and vulnerable groups in Indonesia. This has actually been corrected by Article 28I paragraph (2) of the 1945 Constitution, which states that discriminatory acts are based on any basis because of its ever-evolving nature. Discrimination can occur due to any conditions, conditions that may be developing,” he explained.

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Discriminatory Conservatorship

Fajri also explained that Article 433 of the Civil Code deems a person not having the capacity to take civil law actions on the basis of their physical and mental conditions. In fact, based on Article 28I of the 1945 Constitution, discrimination cannot be based on anything related to restrictions, exclusion, etc. That is also the principle in Article 2 paragraph (3) of the Convention on the Rights of Persons with Disabilities (CRPD). “Mental and physical conditions cannot be used to discriminate or to limit and exclude someone,” he said.

Apart from that, he added, Article 433 of the Civil Code also uses the word “must,” which means the transfer of a person’s right to civil legal actions to another person involuntarily. The norm and the state, he said, should protect everyone.

“It must be understood that […] the word ‘must’ becomes discriminatory in Article 433 and the transfer of ownership [of the right] becomes a necessity based on the norm,” he said.

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At the preliminary hearing, the Petitioners had argued 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 uses 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.

In addition, 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 (NL)

Translation uploaded on 12/16/2022 06:02 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.


Tuesday, December 13, 2022 | 16:35 WIB 255