Salwa Paramitha and Rhino Ariefiansyah testifying as witnesses for the Petitioners at the judicial review hearing of the Civil Code, Thursday (3/2/2023). Photo by MKRI/Panji.
Thursday, March 2, 2023 | 14:38 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Article 433 of the Civil Code continued on Thursday, March 2, 2023 in the plenary courtroom. The petition No. 93/PUU-XX/2022 was filed by the Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi. The hearing, which took place on site, was presided over by Chief Justice Anwar Usman and six other constitutional justices. In the session, the justices heard statements by the Petitioners’ witnesses, Salwa Paramitha and Rhino Ariefiansyah.
Salwa revealed that in 2017, she was diagnosed with bipolar mental disorder. “I decided to see a psychologist at a hospital in Yogyakarta, the UGM Academic Hospital. By the psychologist, I was referred to an internal psychiatrist for suspicion of mental disability. The psychiatrist diagnosed me with bipolar disorder. Since 2017, I’ve been taking medication regularly. However, this condition did not restrict my spirit. I was studying at the Law Faculty of Gadjah Mada University at the time. In 2020, I completed my studies. Despite my mental disability, I completed my studies in 3.5 years with A-grade thesis,” she said.
She explained that in 2020, she had been hospitalized for about two weeks and she had also been taken to the ICU several times. After graduating from university, she decided to take the advocate training at Universitas Indonesia (UI). Then, she interned at a legal aid institute in Yogyakarta. In 2021, she applied for the law master’s degree in UGM and in November 2021 she received the Beasiswa Unggulan scholarship from the Ministry of Education, Culture, Research, and Technology.
“In the Beasiswa Unggulan program, I was allowed a companion. I appointed my father as my companion who helped me since the registration until I signed the contract and started my studies. During registration, my father explained to me the requirements that I must meet and the consequences of receiving the scholarship. He signed a contract and received compensation from the Ministry amounting to 1.7 million rupiah per month, which was outside of what I receive from the scholarship,” she explained.
Next, Rhino revealed that in 2006 he suffered from schizophrenic psychoses, which included impermanent hallucinations and delusions, especially during fatigue. He got treatment at Marzoeki Mahdi Hospital in Bogor, West Java with medication for five years, followed by one year of treatment with the latest technology medication, which helped him control his symptoms.
“Until today, I’ve been consuming low-dosage anti-psychosis medication regularly. Referring to the Disability Law, I am under the Mental Disability category. And referring to Article 433 of the Civil Code, I can be categorized as an object of conservatorship since [my] condition is often referred to in layman’s terms as insanity,” he said.
Despite his mental disability, he finished his graduate degree and since 2016 has been working as an educator and anthropology researcher at Universitas Indonesia. He understands that he needs positive support in the workplace.
“My wife and family also have supported me in fulfilling my duties and making decision. Some of the support I’ve received is the absence of discrimination and stereotyping in my workplace or by my coworkers because of my mental disability. I have sufficient support such as ample time to do my work,” he explained. He said he had also been given ample time for decision-making or for psychiatric consultations.
Conservatorship Tragedy
Legal counsel Viktorianus Gulo represented a Relevant Party named Ripin, a tradesperson, to testify at the hearing. After both of his parents passed away, Ripin received inheritance in the form of money and gold. The gold was then sold and the money deposited in the state-own bank Bank Rakyat Indonesia (BRI). One day, three strangers came to Ripin’s house, handcuffed him, and took him into a car. His sibling and brother/sister-in-law then brought him to a psychiatric hospital (RSJ) without any examination.
Ripin was deemed legally incapable and asked to appoint a guardian, despite not having any mental disorder. This loss of legal recognition is against the constitutional guarantee of recognition as an individual before the law, which cannot be reduced under any circumstances based on Article 28I paragraph (1) of the 1945 Constitution. Ripin was forced to enter a psychiatric hospital, which was then used as a basis for conservatorship by the court.
“[Ripin] was deemed having a mental disorder, thus deemed incapable of performing any civil act, including giving power to advocates to fight for his rights,” said Gulo, who attended the hearing virtually.
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
Expert Talks Civil Death of Persons with Disabilities
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.
Author : Utami Argawati
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 3/6/2023 11:43 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.
Thursday, March 02, 2023 | 14:38 WIB 235