Constitutional Justice Manahan M. P. Sitompul during the oath-taking of experts it presented at the material judicial review hearing of Article 433 of the Civil Code, Wednesday (5/3/2023). Photo by MKRI/Ifa
JAKARTA (MKRI) — The Constitutional Court (MK) held another material judicial review hearing of Article 433 of the Civil Code (KUHPerdata) on Wednesday, May 3, 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 was carried out both on site and online with Chief Justice Anwar Usman and the other eight constitutional justices presiding.
The Court heard experts that it presented for the case: Elizabeth Kristi Poerwandari (professor of psychology of Universitas Indonesia/UI), Akhmad Budi Cahyono (civil law lecturer and researcher of UI), and Ronny Tri Wirasto (Department of Psychiatry; Faculty of Medicine, Public Health, and Nursing/FK-KMK of Gadjah Mada University).
Elizabeth Kristi Poerwandari, who attended the hearing on site, said there was still a lot of stigma attached to persons with mental disabilities in many places in many forms. “It shows in behavior and attitude that sometimes are very detrimental, violating human rights and [threatening] the dignity of persons with mental disabilities. It is also still prevalent in Indonesia,” she said.
She said the fifth edition of Diagnostic and Statistical Manual of Mental Disorders (DSM-5) published in 2013 is a relatively comprehensive reference in the education and case management of mental disorders. Based on DSM-5, mental disabilities are a broad spectrum, ranging from those that allow the sufferers to carry out daily activities relatively normally to those that pose challenges to the sufferers’ lives. These challenges also widely vary, and could appear only sparsely.
She believes Law No. 18 of 2014 on Mental Health, especially Article 1 paragraphs (2) and (3), define persons with psychiatric problems, or ODMK, as those who have physical, mental, social, growth, and developmental issues and/or problems with quality of life where they have a risk of mental disorders. In paragraph 3, people with mental disorders, or ODGJ, are defined as those who experience disturbances in thoughts, behavior, and feelings, which are manifested in a set of symptoms and/or meaningful changes in behavior and can cause suffering and obstacles in carrying out their functions as humans.
The description stipulated by Law No. 18 of 2014 also implies the very wide variations of mental health issues.
Elizabeth added that a lot of mental health problems or disabilities are temporary, such as depression, thus can be recovered with counseling, medication, and even with self-reflection if the person is accustomed and able to do so.
“Individuals like this can live out the majority of their lifetime well without disability. What is understood as recovery in severe mental health issues such as schizophrenia is similar to that in persons with physical health issues that require regular medication, for example heart issues, high blood pressure. So, it is necessary [for those individuals] to take medicine. When their condition is stable, the dosage can be reduced. The psychiatrist can explain this comprehensively,” Elizabeth explained.
Perspective on Mental Disabilities
Elizabeth said further to understand current perspective on mental disabilities and their position in the law, one needs to refer to the UN Convention on the Rights of Persons with Disabilities or CPRD, effective in 2008. It emphasizes the importance of respecting the human rights of persons with disabilities.
The CPRD emphasizes that the stigmatization and mistreatment of persons with disabilities needs to be changed and corrected. According to it, conservatorship/guardianship or surrogacy needs to be changed to supported decision-making where decision-making is done by individuals with mental disabilities. Indonesia has ratified the CPRD long ago through Law No. 19 of 2011 on the Ratification of the CPRD.
Stigmatization of persons with mental disabilities is still prevalent in Indonesia and Article 433 of the Civil Code actually reflects this in (a) the terms used (simple-mindedness, insanity, or rage); and (b) in the conclusion that persons with disabilities “shall be placed under conservatorship, notwithstanding that he might have mental capacity from time to time.”
Improvements need to be made by not re-enacting the above article, especially with Indonesia having ratified the CPRD. Supported decision-making needs to be studied in depth in order to prepare a policy and its implementation. Various challenges in implementing the CPRD cannot be an excuse not to start.
Conservatorship and Human Rights
Akhmad Budi Cahyono in his statement said that conservatorship is the guardianship of adults who, due to certain circumstances, are declared legally incapable. The definition of capacity to act (handelingbekwaamheid) is the authority to act in general. This is distinguished from the authority to act (handelingsbevoegdheid), which is a specific authority of certain persons to act through certain legal actions. The authority to act can be distinguished from legal authority (rechbevoegdheid) or the authority to support rights and obligations in law. Thus, an incapacitated person still has rights and obligations as a legal subject, but cannot exercise their own rights and obligations or carry out legal actions except through a representative, such as a guardian (curator).
Minors are also declared incapable or do not have the authority to perform legal acts. The measure to adulthood and whether one who performs a legal action can be considered fully aware of the consequences of their action, is age. A minor is represented by a parent or guardian.
Budi added that, based on the above explanation, those considered incapable and unable to fully realize their legal actions need to be protected from actions that can harm themselves or others. They are considered incapable of taking care of their own interests and property, thus, it is necessary to appoint a party who can manage and represent them in carrying out legal actions.
Any person placed under conservatorship/guardianship, Budi added, is no longer capable of performing legal actions, or actions that have legal consequences. The problem is that the existing provisions on conservatorship/guardianship in Indonesia based on the Civil Code do not take into account the will or choice of the person placed under it. They, instead, are considered unable to make good and rational decisions for themselves and their property or to perform legal actions. This is also applied to persons with mental disabilities. Conservatorship/guardianship is status-based approach, which transfers the authority to make decisions to a guardian (substitute decision-making).
There is a new model of guardianship that accommodates human rights, known as the human rights-based model or paradigm. It does not negate any person’s ability to act despite having difficulty in making decisions. On the contrary, it provides support for them in order to be able to carry out legal actions. This model allows any person with mental disorders to perform legal actions with the help or support of others. It uses a supported decision-making-based-approach that replaced the previous approach.
Last Resort
Budi explained that the new approach in accordance with the respect, protection, and fulfillment of human rights cannot be fully applied to provide protection to those with mental disorders. There might be situations where they cannot communicate at all with others, so decisions cannot be made even with the help or support of others. In these circumstances, it is necessary to have a person who can objectively interpret the will of the party placed under conservatorship in order to protect their interests. As such, conservatorship as regulated in the Civil Code is still possible as a last resort.
Before making a decision to place a person under conservatorship, a judge must consider the possibility of the person making good and rational decisions with the support and assistance of others. This can harmonize the provisions of the Civil Code on conservatorship with Law No. 8 of 2016 on Persons with Disabilities. Thus, the possibility of a person with a disability or mental disorder being placed under conservatorship as referred to in Article 32 of Law No. 8 of 2016 shall be a last resort if support and assistance for the person to make their own decisions is not possible.
Also read:
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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)
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, May 03, 2023 | 15:26 WIB 566