Experts: Conservatorship a Gross Violation of Constitution

Executive director of Transforming Communities for Inclusion Global Bhargavi Venkatasubmaniam Davar and executive director of Validity Foundation Steven Allen giving their expert testimonies at the material judicial review hearing of Article 433 of the Civil Code, Wednesday (1/18/2022). Photo by MKRI/Ifa.

Wednesday, January 18, 2023 | 16:20 WIB

JAKARTA (MKRI) — Two experts from India and Hungary—executive director of Transforming Communities for Inclusion Global Bhargavi Venkatasubmaniam Davar and executive director of Validity Foundation Steven Allen—were presented by the Petitioners of the material judicial review hearing of Article 433 of the Civil Code on Wednesday, January 18, 2023 virtually. The petition No. 93/PUU-XX/2022 was filed by the Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi.

At the hearing chaired by Chief Justice Anwar Usman, Steven Allen explained that all conservatorship systems involve limiting or abolishing the legal rights of persons with disabilities, thus reducing their humanity. Conservatorship, he argued, takes away their decision-making rights and gives them to substitute decision makers, usually family members.

Conservatorship is not actually meant to cause harm but to protect one’s best interests. “However, as the saying goes, the road to hell is paved with good intentions and conservatorship usually results in abuse and exploitation in all areas of life because the right to legal capacity is a gateway to other human rights,” said Allen, who gave the testimony in English with interpreting by Yuliana Tansil.

Legal restrictions impede access to justice and to lawsuits to fight for human rights. “Law is universal and cannot be restricted on the ground of disability. Rights of [people with] disabilities stipulate that the state is obligated to nullify such the principle [of conservatorship] and replace it with a system that supports people to use their legal rights,” he said.

Conservatorship, he believes, strips any person of their civil and political rights and the right to participate in free elections. This has been seen and heard in supreme courts and constitutional courts around the world. “Conservatorship as a whole is a very serious violation of the Constitution,” he stressed. 

Conservatory Discriminatory

Meanwhile, Davar, the executive director of a global organization of persons with psychosocial disabilities, said his area of expertise concerns the compensation for the rights of persons with disabilities. “We carry out intensive communication between members and always try to keep abreast of the latest developments and knowledge and are inspired by conventions and the right to live in society,” she said in English.

She further explained that many important United Nations (UN) documents have been published since the convention that urged governments and policymakers to amend laws on guidelines to overcome obstacles in society. “We represent the voice of persons with psychosocial disabilities globally. We also carry the main message that, first and foremost, we are humans and our nature as humans must be recognized in all laws, policies, programs, and practices,” she explained.

She said courts around the world are debating on the jurisprudence on the human nature of non-human life forms. She believes it to be a moral obligation that is emphasized repeatedly in the convention that persons with disabilities are first and foremost human beings.

She emphasized that social disabilities are very broad, including autism and learning difficulties. People with such disabilities have been shamed and historically been neglected and discriminated against and constantly face threats to their freedom and life and are often denied of their rights.

Davar also said these people are especially women, the elderly, people who are deemed mentally incapacitated, and so on. “Conservatorship is discriminatory and does not protect anyone and is used to circumvent resources to the point of causing them civil death. Legally shackling them is akin to physically shackling them,” she said.

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 

Conservatorship Depends on Court Judge

Expert: Conservatorship Not a Form of Protection

The Petitioners 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.”

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        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 1/19/2023 11:22 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, January 18, 2023 | 16:20 WIB 621