Written by:Ingrit Dilla Farizna(Student of the Family Law Study Program, UIN Syarif Hidayatullah Jakarta)

Legal Literacy - This article discusses the rights of persons with disabilities, one of which is the right to legal protection. Let's take a look at the explanation below!

It is a reality that some people are created in different conditions, both physical and non-physical, who are subsequently referred to as persons with disabilities. Persons with disabilities, in some terms, are labeled as individuals who have different conditions and abilities from normal individuals, especially in physical abilities.

According to John C. Maxwell, a person with a disability is someone who has an abnormality and/or that can interfere with activities.[1] Meanwhile, Article 1 number 1 of Law (UU) Number 8 of 2016 concerning Persons with Disabilities states that a person with a disability is any person who experiences physical, intellectual, mental, and/or sensory limitations for a long period of time which, in interacting with the environment, may experience obstacles and difficulties in participating fully and effectively with other citizens based on equal rights.

Persons with disabilities in social science studies generally refer to those who have physical and non-physical disabilities. Persons with disabilities are categorized into three types of groups:

  1. Group of physical abnormalities, consisting of the blind, deaf, and deaf-mute;
  2. Group of non-physical abnormalities, consisting of mentally retarded, emotionally disturbed and autistic;
  3. Group of multiple abnormalities, namely those who experience more than one type of abnormality.

As part of the community, persons with disabilities also must receive support and legal protection so that the rights of persons with disabilities as citizens are not lost or ignored. As stated in Chapter XA The 1945 Constitution of the Republic of Indonesia (UUD NRI 1945), which explains that human rights are rights inherent in human dignity from birth, such as the right to life, the right to be treated equally and the right to legal certainty and justice, as well as a number of other human rights.

The Convention on the Rights of Persons with Disabilities in Article 13 explicitly explains access to justice, stating that, first, the state guarantees that persons with disabilities can have the same opportunities and treatment in court. The state guarantees that every judicial rule must be adapted to the circumstances of persons with disabilities so that they can play a full role in all stages of the trial and proceedings, for example as witnesses. Second, the state will provide training to understand persons with disabilities for those who work in judicial institutions such as the police, prison officers, and so on.[2]

What rights can persons with disabilities obtain according to the provisions of the law?

Referring to Articles 28 and 29 of Law No. 8 of 2016, the Government and Regional Governments are obliged to guarantee and protect the rights of persons with disabilities as legal subjects to take legal actions similar to others. Likewise, in the provision of legal aid, the Government and Regional Governments are obliged to provide legal aid to persons with disabilities in every examination at every law enforcement institution in civil and/or criminal matters in accordance with statutory regulations.

From a juridical aspect, in order to guarantee special protection for the rights and position and protection from discrimination for persons with disabilities, a legal instrument is needed that specifically regulates persons with disabilities. Law enforcers are obliged to ask for consideration and facilities for persons with disabilities. The facilities referred to in Article 30 of Law No. 8 of 2016, include:

  1. Doctors or other health workers regarding health conditions
  2. Psychologists or psychiatrists regarding mental conditions
  3. Social workers regarding psychosocial conditions

As stipulated in Article 36 of Law No. 8 of 2016, Law enforcement agencies are obliged to provide reasonable accommodation for Persons with Disabilities in the judicial process. If a person with a disability is involved in the criminal justice process, it must still be carried out in accordance with the provisions of the criminal procedure law.

Furthermore, in Article 37, state detention centers and correctional institutions are obliged to provide disability service units. The service units in question function:

  1. Providing adaptation period services for Persons with Disabilities detainees for 6 (six) months.
  2. Providing special needs, including medicines attached to persons with disabilities during detention and development
  3. Providing rehabilitation services for people with mental disabilities.

How are persons with disabilities assessed as legally incompetent?

Currently, many persons with disabilities are still hampered from accessing legal services. This is because persons with disabilities are considered legally incompetent. This kind of discrimination often befalls persons with disabilities who experience mental and intellectual disorders. The ability of persons with disabilities to manage something, for example assets, finances, is often doubted so that for this reason they experience discrimination in legal services in some parts.

Even though the provisions regarding legal incompetence for persons with disabilities can only be declared based on a determination from the district court. By fulfilling several conditions in accordance with Article 33 of Law No. 8 of 2016, such as:

  1. The district court's determination in question is submitted through an application to the district court in accordance with the provisions of statutory regulations.
  2. The application for determination is based on clear reasons and must present or attach evidence from a doctor, psychologist, and/or psychiatrist.
  3. Families of persons with disabilities have the right to appoint someone to represent their interests when the person with a disability is declared incompetent by the district court.
  4. A person appointed to represent the interests of a person with a disability who takes actions that impact the increase, decrease, or loss of the property rights of the person with a disability must obtain a determination from the district court.

Based on the provisions above, the need for legal protection for persons with disabilities must be fulfilled by all law enforcement agencies. These provisions are one part of fulfilling human rights, so if they are not fulfilled, more persons with disabilities will have their rights derogated, especially the right to equality before the law. This is a brief explanation regarding the right to obtain legal protection for persons with disabilities.

References

  • [1] Arie Purnomosidi, “Konsep Perlindungan Hak Konstitusional Penyandang Disabilitas Di Indonesia,” Refleksi Hukum 1, no. 2 (2017): 163.
  • [2] Anggun Malinda, Ekha Nurfitriana, and M Yasin Al-Arif, “Bantuan Hukum Terhadap Kaum Difabel Korban Tindak Pidana Upaya Mewujudkan Acces to Justice,” Jurnal Hukum IUS QUIA IUSTUM 3, no. 2 (3014): 473.
  • See Law Number 8 of 2016
  • See the 1945 Constitution of the Republic of Indonesia

*This article represents the personal opinion of the author and does not represent the views of the editors Legal Literacy Indonesia.