CRPD
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(Art. 12) Equal recognition before the law
(Art. 12) Equal recognition before the law
List of Issue
Please provide information on:
The steps taken to revise and repeal laws, including the Civil Code and the Law on Mental Health, with the reference to persons “lacking legal qualification”, and the Criminal Code and regimes that limit or remove the legal capacity of persons with disabilities, particularly persons with intellectual or psychosocial disabilities. Please indicate the measures taken to establish supported decision-making mechanisms that respect the will and preferences of the person with disability concerned, at both the national and regional levels;
The number of persons with disabilities under guardianship, particularly persons with intellectual or psychosocial disabilities;
The policies adopted and practical measures taken to ensure that persons with disabilities can enter into financial transactions with institutions such as banks and insurance companies, whether State-owned or private, and to ensure their right to inheritance.
Alternative Reports
DPOs Coalition Report (OHANA)
Article 27 of the 1945 Constitution firmly guarantees equality before the law. This is reinforced in Law No. 8/2016 Article 28. Some notes related to the regulation of equality before the law are:
Articles 433 – 462 and Article 1320 paragraph (2) of the Civil Code which regulate guardianship/curatel, including for persons with psychosocial disabilities who are considered legally incompetent, without any court process. The Mental Health Law affirms this designation of “incompetent” by a psychiatrist, not a court. This status of legal incompetence often leads to coercion in the health service choices for persons with psychosocial and intellectual disabilities, as the services are given by the family or guardian, and not by the person with a disability themselves.
Article 53 in conjunction with Article 178 of the Criminal Procedure Code (KUHAP) requires the presence of an interpreter appointed by the presiding judge. In practice, disability cases often fail at the initial stage in the police station, because this interpreter assistance is limited only to the court.
Responding to Paragraph 58 of the Indonesian Government's Report regarding the access of persons with disabilities to banking services, this is still being done at the institutional level but has not been massively implemented in the SOPs of every bank, both central and regional. In several cases, DPOs still have difficulty accessing financial services at banks or other institutions. The last case that occurred was the refusal of a blind person to access a bank in Makassar, although the Bank eventually responded quickly to resolve this case due to pressure from a number of disabled persons' organizations.
To date, persons with intellectual disabilities still face many obstacles in performing civil legal acts. In a civil case, a legal subject with an intellectual disability could not become a founder or administrator of a legal entity organization, because the legal subject was declared under curatorship (according to 433 Civil Code), thus the legal subject (person with intellectual disability) is considered legally incompetent (according to 1330 Civil Code). Meanwhile, the process of proving this can only be done by the Court with an expert witness appointed by the Court itself.
This loss of legal recognition also has many implications in cases of: Loss of the right to control property. Assets and inheritance are controlled by the curator, Loss of the right to raise children, Loss of the right to choose or refuse medical treatment, Their testimony is not considered valid, Reports made by persons with psychosocial disabilities are not taken seriously, including reports of violence experienced, Loss of the right to vote, to be elected, Not considered a legal subject that must be protected, and Loss of the right to opinion and expression.
Similarly, persons with intellectual disabilities do not have access as bank customers. When they are children, they can be given an additional savings account from their parents, but when they become adults, this is no longer possible, while an account in their own name is not allowed. Only a few private banks have made breakthroughs by allowing the parents of children with intellectual disabilities to use the parents' savings account and the child can have an ATM in their own name (Bank Mega Syariah).
There is no harmony between the Police and the Ministry of Health (doctors who issue health certificates) to create a policy for the issuance of Driving License D (SIM D) for persons with hearing disabilities. The police intend to issue SIM D for the Deaf but are hampered by the health certificate from the Doctor. The Doctor can only state honestly that the Deaf person is truly Deaf but cannot recommend that the Deaf person be granted SIM D. There is Chief of Police Regulation (PERKA POLRI) No. 10 of 2009 which prohibits those with hearing and visual impairments from operating motorized vehicles.
List of Issue
How to ensure the procedure for persons with disabilities to obtain the right to access financial services at banks for all types of disabilities, including ATMs? Has an SOP been created?
How does the government ensure that the trial process for persons with disabilities, whether as perpetrators, victims, or witnesses, is recognized as legitimate legal subjects in the eyes of the justice system?
Are there efforts to revise Article 433 of the Civil Code concerning the grounds for curatorship? Is there already a guideline for law enforcement officials regarding the right to equality before the law for persons with disabilities?
Response List of Issue (Coalition/OHANA)
LBH Masyarakat (Community Legal Aid) conducted monitoring in 2019 regarding legal curatorship (pengampuan) for persons with psychosocial/mental disabilities. The research summarized 49 court cases from 2015 – 2018. The main finding from monitoring these court decisions is that Indonesian civil law considers that having a mental disorder or psychosocial disability automatically negates a person's legal capacity.
Curatorship law in Indonesia is discriminatory against people with intellectual, psychosocial, and cognitive disabilities because curatorship is given to those who are in a state of 'imbecility, brain sickness, or blind rage' (keadaan dungu, sakit otak atau mata gelap). These terms are not only outdated and degrading, they are also highly discriminatory because they restrict the legal capacity of a group of people on the basis of their disability. This version of curatorship is often categorized as status-based law because a person's disability status is considered (incorrectly) sufficient to be the basis for removing their legal capacity.
From the compiled cases, LBH Masyarakat found that applications for curatorship are often filed for financial reasons, such as selling assets, gaining access to inheritance, and collecting salary. Furthermore, it is also known that the standard of proof is very low in curatorship cases. Applications are generally accepted even when using outdated and deficient evidence. Most curatorship applications rely on mental health examination letters produced by experts. However, this letter does not detail how the applicant's mental disorder affects their ability to make decisions, thereby causing them to need curatorship; some were even made long before the curatorship case examination in court. There are also several cases where the petitioner presented written evidence that could not comprehensively explain the mental health status of the subject. Examples include patient cards, prescriptions, and referral letters.
The report also shows that most witnesses present in curatorship court cases do not have expertise in the field of mental health. Witnesses are either family members of the petitioner/subject or neighbors (24%). Even without expertise, the majority of them (97.7%) claim that the subject has a mental health problem, based on daily observations, hearsay, or other reasons.
Another aspect that remains a practice of this curatorship law is that persons with disabilities who are the subjects of curatorship in Indonesia have little or no way to reject or oppose the curatorship designation. The role of the judge in the existing legal system is limited to only accepting the evidence presented by the petitioner. This passive role of the judge poses a threat to the person whose legal capacity is being questioned, considering the unequal power relationship between the disputing parties in court. The already stigmatized subject facing the curatorship case has limited room to oppose the curatorship application or obtain assistance to exercise their legal capacity.
In the majority of cases (28 out of 46 accepted applications), judges handed down a plenary curatorship decision which completely removed the legal capacity of the subject. In other words, the subject's freedom to make decisions over all aspects of their life is legally transferred to another person, namely their family. As such, the curator can make decisions for the person under curatorship without considering their preferences and wishes. This includes decisions to sign contracts, open/close bank accounts, and manage all legal documents.
Response List of Issue (HWDI)
The Indonesian Government is currently drafting the Government Regulation Draft (RPP) on Reasonable Accommodation in the Judiciary for persons with disabilities. Although Law 8/2016 mandated its issuance 2 years after the Law was enacted, as of 2020 this Government Regulation has not been issued. On the other hand, there is no independent and effective mechanism that can serve as an alternative for women with disabilities to report their cases and demand justice, including recovery for the losses incurred.
To encourage the commitment of law enforcement officials in handling cases of violence against women with disabilities, Disabled Persons' Organizations (DPOs) have entered into several MoUs with State institutions. In October 2019, HWDI established an MoU with the Chief of the Indonesian National Police regarding services and protection of the rights of women with disabilities. However, the challenge is that the implementation of the MoU down to the regional level has not been effective, due to the severely limited understanding and awareness of law enforcement officials regarding the protection of women with disabilities.
The Indonesian National Police already has a Women and Children Protection Unit, regulated by the Chief of the Indonesian National Police Regulation No. 10 of 2007 concerning the Organization and Work Procedure of the PPA Unit within the Indonesian National Police. Police personnel have been trained and staff these units specifically to handle cases of violence against women and children. This Unit has been deployed across 34 provinces in Indonesia. The problem, however, is that the case handling scheme at the police office has not met the standard for reasonable accommodation for children or women with disabilities facing the law, including physical and non-physical facilities and infrastructure, such as officers who understand sign language, accessible communication tools, and information media in simple language.
Research of the Association of Women with Disabilities Indonesia (HWDI) in four regencies in Indonesia (2015) stated that the sexual violence against women with disabilities continue to occur, at least it caused by: (a) Infirmity of the protection system and law upholders' awareness. (b) Perpetrator is part of the family, which has power to not proceed the case. There is one case where the victim was already gave birth for three times by the same perpetrator but there are no legal proceedings (c) Legal terms currently used are not in accordance with the needs of women with disabilities and children of the victim of violence (d) Lack of infrastructure, support system and facilities for the disabilities, including sign language interpreter, assistances on easy to understand documents and various forms to be filled, since the beginning of investigation until the trial (e) Due to having difficulties in communications, the law upholders neglecting the cases. (f) Indonesian law does not recognize testimonies of persons with intellectual and psychosocial disabilities.
The results of monitoring conducted by HWDI in 2019 across 10 regions in Indonesia showed that out of 35 cases of sexual violence against women with disabilities (from 2016 – 2019), only 4 cases had been decided by the court and the perpetrators were sentenced. There were 4 cases where the resolution process was slow, caused by the doubts and disbelief of law enforcement over the testimony of persons with disabilities, namely in East Java and Aceh. Meanwhile, there were 7 cases with no clarity on whether they were handled or not, despite being reported. It was also recorded that 6 cases were processed by law enforcement but eventually resolved through peaceful means (usually by marriage) or were then covered up. The remaining 14 cases were still in process at the police or the court when this report was compiled.
The slow process of law enforcement for women with disabilities who are victims of violence is caused by stigma and the doubts of officials and family members towards the victim, who is considered legally incompetent or unable to testify, while professional assistance, such as psychologists or psychiatrists, is also not always available.
Some cases that can be disclosed in this report are:
The case in Pasuruan, East Java, occurred in September 2018, where a 20-year-old woman with an intellectual disability was repeatedly raped by 3 of her neighbors until she became pregnant. Initially, the family chose an amicable solution by marrying the victim and the perpetrator, but then the perpetrator fled. After being reported to the police, the police were constrained by communication and the victim's testimony, thus requiring a longer time. A similar case occurred in Jember, East Java; a complaint was filed in May 2019 with the police, but it was delayed for up to 6 months because the case review was still ongoing.
In Central Java, a woman with a hearing and speech disability in Surakarta experienced rape and robbery by 6 men. During the investigation process, the police called a sign language interpreter. However, unfortunately, the sign language used by the victim was different from the sign language used by the interpreter, and the victim was not allowed to be accompanied by others. As a result, there was a misinterpretation, and the police concluded that it was not a case of rape but mutual consent. Finally, the perpetrator was only charged with theft with a lighter sentence than should have been imposed.
Another similar case occurred in Bireuen, Aceh, which is currently being handled by law enforcement in Aceh. The case occurred in May 2019, when the victim was playing and studying with the perpetrator's child, at the perpetrator's house. The victim wanted to urinate in the bathroom and was immediately pulled by the perpetrator, who removed the victim's clothes, committed sexual harassment, and then raped her. This incident recurred in different locations. The police are processing this case but are hampered because the victim often gives differing testimonies.
The weakness of legal protection for women with disabilities is also reflected in the Legal Aid Law, which does not prioritize women with disabilities. Moreover, this Law does not include women with disabilities as a specific target group entitled to special treatment (affirmative action); the legal aid support intended in the Law is only for Perpetrators, while legal aid for victims is not yet included in the Law. According to sources from LBH Apik, the legal aid most requested by women is legal aid for victims.
In terms of data, although data on legal aid recipients are available disaggregated by male and female, the data at the Ministry of Law and Human Rights are not disaggregated by types of disabilities, including women with disabilities. This impacts the lack of specific assistance for women with disabilities facing the law, such as the provision of interpreters or disability assistants.
On the other hand, the draft regulation currently being formulated in the Parliament (DPR) concerning the Draft Law on the Elimination of Sexual Violence (RUU PKS) has not been passed. Yet, this Draft Law has included the aspect of special protection for women with disabilities who are vulnerable to becoming victims of sexual violence. Article 45 of the RUU PKS provides a legal guarantee that persons with disabilities have the same legal right to give testimony and be a witness in court proceedings.
Proposed List of Issue
There are many cases of sexual violence against persons with disabilities in Indonesia. How is the Indonesian government addressing this? What is the number of reported cases of sexual violence against women with disabilities? What is the number of cases processed, decided with proportional punishment, and perpetrators acquitted? Do victims receive recovery for the losses and suffering experienced?
What are the efforts of the Indonesian Government to ensure access to justice for women with disabilities is fulfilled? What steps have been taken, are currently being taken, and what targets are to be achieved? Does the Indonesian Government have a measurable plan to ensure that all components of law enforcement (police, prosecutors, and judges) have a disability perspective in handling cases?
How to ensure legal aid is accessible to persons with disabilities without discrimination? Within the timeframe of several years after the Legal Aid Law was enacted, please explain the number of women and girls with disabilities who have received legal aid? And, does that legal aid have a positive impact on the fulfillment of their access to justice?
Committee Recommendations
The Committee recommends that in line with its General Comment No. 1 (2014) on equal recognition before the law, the State Party review Law No. 8 of 2014 concerning mental health, Articles 433 and 434 of the Civil Code, the Criminal Code (KUHP), and Article 32 of Law No. 8 of 2016 concerning Persons with Disabilities must be harmonized with the Convention to ensure the right of all persons with disabilities to equal recognition before the law and to establish supported decision-making mechanisms in all areas of life.
ⓘ Indicators
Psychosocial intellectual decision-making mechanism