Chief Justice Anwar Usman reading out the verdict of the material judicial review of Article 433 of the Civil Code, Monday (7/31/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) decided to grant part of the material judicial review petition of Article 433 of the Civil Code (KUHPerdata) on Monday, July 31, 2023 in the plenary courtroom. The ruling hearing for Decision No. 93/PUU-XX/2022 was presided over by Chief Justice Anwar Usman and seven constitutional justices.
“[The Court] grants the Petitioners’ petition in part,” the chief justice said reading out the verdict.
The Court held that the phrase ‘simple-mindedness, insanity, or rage’ and the word ‘shall’ in Article 433 of the Civil Code is unconstitutional and not legally binding if not interpreted as “shall be a person with mental and/or intellectual disabilities” and if the word ‘shall’ not be interpreted as “may.” As such, the article now reads, “An adult, who is in a continuous state of simple-mindedness, insanity or rage, shall be a person with mental and/or intellectual disabilities, may be placed under conservatorship, notwithstanding that he might have mental capacity from time to time. An adult may also be placed under conservatorship as a result of improvidence.”
In its legal opinion, delivered by Constitutional Justice Suhartoyo, the Court held that Article 433 of the Civil Code should be reinterpreted to harmonize with the spirit of Law No. 8 of 2016, especially Article 32. Such a reinterpretation aims to ensure that the impact of legal protection efforts for persons with mental and/or intellectual disabilities can be realized while maintaining conservatorship referred to in Article 433 of the Civil Code.
Because the Court concluded that there was an issue of constitutionality in parts of Article 433 of the Civil Code, the Court declare the entire article conditionally unconstitutional. It held that the Petitioners’ petition was legally warranted in part although it did not interpret the article following the their petitum.
Caution in Ruling over Conservatorship
In another consideration, the Court held that the abolition of conservatorship from Article 433 of the Civil Code would instead reduce legal protection for persons or legal subjects who are in a state of simple-mindedness, insanity, or rage, which is part of mental and/or intellectual disabilities.
“Although the Civil Code is a legacy of the colonial era, whose image is closely connected to colonization and suppression of human rights, the Court does not deny that conservatorship promoted by the Civil Code in certain circumstances is still relevant to be implemented to protect civil rights,” Justice Suhartoyo said.
Therefore, he added, the Court emphasized that the application of conservatorship would be evaluated continually and, as such, the Court cautioned that without clear guidelines, it could potentially burden persons with mental and/or intellectual disabilities even further. In light of this, the district court, as the institution authorized to issue conservatorship orders, must be very careful and cautious in issuing such decisions.
Such decisions on conservatorship must truly be based on legal facts found in trial, especially results of examination by authorized experts and testimonies and/or evidence from doctors, psychologists, and/or psychiatrists, as stipulated in Article 33 of Law No. 8 of 2016 jo. Articles 436-446 of the Civil Code.
“In truth, a person with a non-permanent mental and/or intellectual disability who is in a state of capacity still has the freedom to choose whether to apply conservatorship, assistance, or other known schemes practiced outside the civil law. This is because the decision on the self or personal will of a legal subject in the civil law depends on the personal interests of the person concerned,” Justice Suhartoyo added.
Meanwhile, for a person with a permanent mental and/or intellectual disability, upon rigorous verification, the court is still bound to determine is placed under conservatorship and, upon rigorous verification, should determine or appoint a curator who is truly capable and responsible for taking care of the needs of the person with disability (curandus), which must not be detrimental to the curandus.
Potential Abuse of Conservatorship
In its opinion, the Court also asserted its understanding of the concern over potential abuse of conservatorship that could harm the curandus while benefitting the conservator and/or other parties. Such abuse could occur, the Court asserted, but it did not negate the need for conservatorship. In addition, to prevent such abuse, the procedure of conservatorship as set forth in the Civil Code and Law No. 8 of 2016 must be strictly examined by the judicial body handling the request for it.
As such, it is mandatory to involve experts in mental and/or intellectual disabilities in cases of conservatorship to ensure (establish a diagnosis) that the person with disability for whom conservatorship is sought is truly incapable of reasonable thinking and conduct, so that the court has a strong basis for determining whether they are legally incapable.
In addition, the reinterpretation of Article 433 of the Civil Code means that in adjudicating requests for conservatorship, the district court has more options while facing legal facts of mental and/or intellectual disabilities. It no longer has to determine that the person in question must be placed under conservatorship. Instead, it could determine other mechanism to help a person with mental and/or intellectual disabilities, especially non-permanent ones, such as ordering assistance.
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
Persons with Mental Disabilities Need Support
Persons with Disabilities Entitled to Recognition as Individuals Before Law
Stigmatization of and Discrimination against Persons with Disabilities
The Indonesian Mental Health Association (IMHA), Syaiful Anam, and Nurhayati Ratna Saridewi challenged Article 433 of the Civil Code, which read, “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 on Monday, September 26, 2022, 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 asserted.
He added that Article 433 of the Civil Code acknowledged that mental disorders could be episodic, by including the phrase ‘notwithstanding that he might have mental capacity from time to time.’ However, it generalized 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 was 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’ was 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.
Monday, July 31, 2023 | 16:46 WIB 188