Expert Talks Civil Death of Persons with Disabilities
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Suparman Marzuki, law lecturer of the Islamic University of Indonesia, taking oath before testifying for the Petitioners at the material judicial review hearing of the Civil Code, Wednesday (2/1/2023). Photo by MKRI/Ifa.


Wednesday, February 1, 2023 | 16:03 WIB

JAKARTA (MKRI) — The material judicial review hearing of Article 433 of the Civil Code continued on Wednesday, February 1, 2023 from the plenary courtroom of the Constitutional Court (MK). The petition No. 93/PUU-XX/2022 was filed by the Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi. The hearing presented two experts for the Petitioners: Gerard Quinn, a UN special rapporteur on the rights of persons with disabilities, and law lecturer of the Islamic University of Indonesia Suparman Marzuki.

Before Chief Justice Anwar Usman (panel chair) and the other eight constitutional justices, Suparman said legal persons have an important positions as legal concepts becomes beneficial and meaningful through them. “Legal persons include physical and mental aspects, dignity, freedom, rights, obligations, and interests,” he said.

He asserted that the human element in law is irreplaceable because the upstream and downstream of law are for the benefit of humanity. Therefore, modern concepts respect humans and increasingly humanize humans. Legal persons are referred to as legal subjects, while according to [legal scholar Christopher] Stone, one of the aspects of granting rights is legal rational. A person’s rights as a legal subject can only be fulfilled if he can carry out legal actions.

He also said Article 433 of the Civil Code was created off a stigma perspective that does not respect humans. The terms “simple-minded,” “insane,” etc. created a negative stigma. “From [that] stigma, the a quo article has revoked, transferred, or at least forcibly excluded a person [whose] rights cannot be excluded under any circumstances,” he said.

He emphasized that the state should change such a negative perspective by constructing legal norms based on the 1945 Constitution where everyone has the right to receive special facilities and treatment to obtain equal opportunities and benefits in order to achieve equality and justice instead of having their rights transferred/revoked/removed.

Convention on Rights of Persons with Disabilities

In his written testimony, Suparman also said that the Convention on the Rights of Persons with Disabilities (CRPD) was stipulated by the General Assembly Resolution or G.A. Res. A/RES/61/106 on December 13, 2006 and its signing began on March 30, 2007. The Government of Indonesia ratified this convention through Law No. 19 of 2011 on the Ratification of the Convention on the Rights of Persons with Disabilities on November 10, 2011.

In its consideration, the convention emphasizes the importance of universality, indivisibility, interdependence, and interrelatedness of all human rights and fundamental freedoms and the need for persons with disabilities to be guaranteed their full enjoyment without discrimination. Disability is also seen as an evolving concept and the result of interactions between people with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.

The provisions in the convention and national instruments on persons with disabilities formed the basis that the Indonesian Government has an obligation to ensure that the rights of persons with disabilities are protected, fulfilled, and respected. Persons with disabilities are full legal subjects, equal in dignity and rights, and must be treated with full respect.

The convention provides two important principles on access to justice: State parties shall (1) ensure effective access to justice for persons with disabilities including through the provision of age-appropriate accommodations in order to facilitate their effective role as witnesses in all legal proceedings, including at investigative and other preliminary stages; (2) promote appropriate training for those working in the field of administration of justice, including judges, prosecutors, police, and prison staff. 

Recognition as Humans

Meanwhile, Quinn said legal competence is an important issue globally. When CRPD was formulated, the issue was not expected to become as significant. However, many state governments and NGOs insisted that persons with disabilities faced great inequality because they were invisible and lacked recognition as humans.

“So, Article 12 of the Convention on the Rights of Persons with Disabilities is a very important instrument. It is also referred to as the intent and main objective of the CRPD. The issue discussed today is also faced by many governments and has also resulted in many legal reforms,” he explained in English, interpreted by Annisa Cinantya Putri. 

Two Waves of Human Rights Response

According to Gerard, these legal reforms were driven, among other things, by constitutional decisions that became a stimulus for the government to want to think differently about this issue. He asserted that this issue is very important and fundamentally related to matters such as ethics, philosophy, and the application and practice of law.

“This issue is actually not new about what is considered human in our society. Unfortunately, as we know, in the history of law, many people were not considered legal subjects or human beings in policy. Looking back at history, even in the past 200 or 300 years, there have been ongoing legal reforms so that more and more people can be recognized as persons but there are exceptions among persons with disabilities,” he said.

Thus, he added, this is the last limit of invisibility in the world today. He also talked about civil death. The idea of not recognizing a person as a human being has enormous implications for the exercise of rights, such as the right to marry, to own property, to do business, and to consult medical personnel.

“I also observed the phenomenon of civil death related to persons with disabilities as one of the constitutional rights that we need to address,” he stressed.

Legal capacity, Quinn added, is also very closely related to issues such as moral agency and recognition of a person before the law, especially constitutional law. Eliminating these rights was first recognized as a problem in the 1990s and this sparked the first wave of responses from a human rights perspective. It can be said that the completion and ratification of the CRPD became a milestone of the second wave of responses. The first response, he added, was pushed back in the 1990s by human rights courts in Europe. They focused on two things: first, to narrow and reduce the scope of legal incompetence applied to persons with disabilities. This reform was considered quite successful.

Second, legal process or due process. Everyone should not be deprived of their recognition as humans without being directly and meaningfully involved. At the end of this process, there are still problems in terms of legal skills and other categories related to persons with disabilities. Although now the scope is smaller and the legal process is more emphasized, there are still issues to be resolved. The second wave of reforms was triggered by Article 12 of the CRPD.

He also talked about three things on the right to equality and equal treatment. The drafters of the CRPD and monitoring bodies that interpret this convention applied the theory of universal legal capacity, in which every person and especially every person with a disability, regardless of their differences, still has the legal right to make decisions. This is the legal right to legal capacity. It is one of the most interesting steps at the international level because it anticipates or is in line with current scientific findings.

In addition, he said, the most important thing that the Constitutional Court has done is encouraging the executive branch to think differently and take a more innovative approach. “In my opinion, this is a very good use of judicial authority,” he 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

Experts: Conservatorship a Gross Violation of Constitution

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 2/6/2023 20:38 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, February 01, 2023 | 16:03 WIB 133