The material judicial review hearing of Article 433 of the Civil Code to hear the Relevant Party, Monday (3/13/2023). Photo by MKRI/Ifa.
Monday, March 13, 2023 | 17:29 WIB
JAKARTA (MKRI) — Every state commits to fulfilling human rights through certain instruments by including human rights in the constitution. This has been regulated comprehensively in the 1945 Constitution, whose several articles expressly regulate human rights, including of persons with disabilities, such as Article 28H paragraph (2) and Article 28I paragraph (2).
This statement was made by Alboin on behalf of the National Commission for Disability (KND) as a Relevant Party in the material judicial review hearing of Article 433 of the Civil Code on Monday, March 13, 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.
Before Chief Justice Anwar Usman and five other constitutional justices, Alboin explained three aspects in realizing rights of persons with disabilities. First, the philosophical aspect, which refers to the view that persons with disabilities are human beings, or what John Locke referred to as nature. Therefore, persons with disabilities should have the same opportunity to obtain their rights and be able to act as legal subjects.
Second, the juridical aspect. The main framework of our Constitution is respect for human rights, so every piece of legislation should prioritize the embodiment of human rights, including those relating to persons with disabilities. There are still discriminatory regulations that do not recognize persons with disabilities as they should, such as Article 433 of the Civil Code.
Third, the sociological aspect. The fulfillment and protection of persons with disabilities are in line with the fifth precept of Pancasila, social justice for all Indonesian people. So far, efforts to fight for justice for persons with disabilities still need facilities and infrastructure that provide them with opportunities to improve their quality of life for social welfare.
State’s Obligation
Alboin explained that the state is obligated to provide protection and fulfill the rights of persons with disabilities. “The obligation here is not only focused on protection from violations committed by the state, but also against violations or actions by other entities or parties (non-state) that will interfere with the protection of the rights of persons with disabilities,” he said.
The state through its institutions is obligated to implement statutory provisions based on the principle of legality. The state is also obligated to pay attention to existing general principles for the sake of moral and legal accountability.
“By complying with existing regulations and general principles, the guarantee of protection for citizens will be well guaranteed, for including persons with disabilities,” he added.
Human Rights of Persons with Disabilities
Alboin further explained that persons with disabilities have an equal position without exception in civil relations in the Civil Code. However, several articles in the Civil Code explain that not everyone is considered legally capable.
“According to Article 1330 of the Civil Code, those who have been declared incapable of performing legal acts by law are minors (minderjarigen) and persons placed under conservatorship (die onder curatele gesteld zijin).
Alboin also revealed that Article 433 of the Civil Code has inconsistencies. It reads “an adult, who is in a continuous state of simple-mindedness, insanity or rage,” which implies that a person who can be subjected to conservatorship must be in a constant state of mental incapacity.
However, the phrase “notwithstanding that he might have mental capacity from time to time” implies the opposite, i.e. that a person who is incapable of thinking only at certain times can still be subject to conservatorship. This inconsistency muddies the criteria for subjects of conservatorship and can potentially lead to persons with disabilities being taken advantage of.
In addition, he explained that the Civil Code does not specify these three circumstances as requirements for conservatorship. However, in practice, these criteria often target persons with psychosocial and intellectual disabilities and those with cognitive impairments (such as those with brain injuries or Alzheimer’s disease). People with mental disabilities are targeted for conservatorship because they are considered mentally incapacitated. Meanwhile, people with intellectual disabilities are considered to be in a state of ‘simple-mindedness.’
With the ratification of the Convention on the Rights of Persons with Disabilities into Indonesian legislation, substitute decision-making in Article 433 of the Civil Code is no longer relevant. In addition to contradicting the purpose of this convention, this article also poses a real threat to persons with disabilities, especially in the efforts to realize human rights in the field of law. It is time for this concept to be replaced with support decision-making.
CRPD Recommendation
The Committee on the Rights of the Persons with Disabilities (CRPD) is concerned that under national law, people can be considered less competent, especially those with psychosocial and intellectual disabilities, and placed under supervision.
Therefore, the CRPD recommended that Indonesia review Article 433 of the Civil Code to seek harmony with the convention to guarantee the right of all persons with disabilities to equal recognition before the law and to establish supported decision-making mechanisms in all aspects of life.
Rights of Persons with Disabilities
At the hearing, the Commissioner for Complaints of the National Commission on Human Rights (Komnas HAM) Hari Kurniawan explained that Article 433 of the Civil Code is contrary to the human rights norms in the CRPD. The terms in the article (simple-mindedness, insanity, and rage) is contrary to Article 8 of the convention, which requires state parties to adopt immediate, effective, and appropriate policies to fight prejudicial stereotypes and practices that harm persons with disabilities.
Article 433 of the Civil Code stipulates that any adult in a continuous state of simple-mindedness, insanity or rage be placed under conservatorship even if they are occasionally capable of using their mind. The fact that adults can be placed under conservatorship due to improvidence. is contrary to Article 12 of the CRPD that affirms that persons with disabilities have the right to be recognized as individuals before the law.
Hari said the article reflects discrimination against persons with mental disabilities, who have multiple vulnerabilities in conservatorship because every action must be carried out by a guardian.
Also read:
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Persons with Mental Disabilities Need Support
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 3/14/2023 10:26 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, March 13, 2023 | 17:29 WIB 285