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Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
145 
ACCESS TO JUSTICE FOR PERSONS WITH INTELLECTUAL DISABILITIES IN INDONESIA: CASE AND PROBLEM IN INDONESIAN CRIMINAL JUSTICE SYSTEM 
Fines Fatimah, SH.MH. 
Faculty of Law 
Brawijaya University, Jalan Mayjen Haryono No. 169 
Malang, East Java, Indonesia – 65145 
Email: fallonesjibril@gmail.com 
ABSTRACT 
Indonesia is one of the countries that has ratified the UNCRPD (United Nations Convention on the Rights of Persons with Disabilities). The ratification of this convention brings consequences on the adjustment of national legislation with the UNCRPD convention, where this ratification at the same time is a measure in the eyes of the international community that a state party could be consistent with the issues and problems of disability. Persons with disabilities often have little access to justice when they are forced to deal with the criminal justice system. Pursuit of justice through litigation are often not in their favor, therefore without any awareness of law enforcement / awareness of disability will further complicate access to justice for persons with disabilities. Under Article 13 of the UNCRPD, it appeared that the convention requires ratifying states to guarantee equal opportunity and treatment in justice for persons with disabilities. States should also ensure that any judicial rules must be adapted to the circumstances of persons with disabilities so that people with disabilities can fully participate in all stages of the trial court and, for example, as a witness. Finally, the state must provide training to understand these persons with disabilities (for those who work in the judiciary institution such as police or prison officials). Further, this paper aims to describe problem faced by persons with intellectual disabilities to access justice in Indonesian Criminal Justice System. This paper tries to find and propose the alternative solutions to promote the quality of law enforcement in Indonesia, especially for persons with intellectual disabilities. 
Keywords: access to justice, Indonesian criminal justice system, intellectual disability 
A. INTRODUCTION 
About 15% of the world's population lives with some form of disability, of whom 2-4% experience significant difficulties in functioning (WHO, World Report and Disability, 2011). While ILO (international Labor Organization) data states around 82 percents of people with disabilities are located in developing countries and often faces access limitation towards health, education, training, and proper job. Therefore people with disabilities are fragile and the biggest minority group.(Data Statistik Indonesia, 2013-2014) 
Indonesia is a country with a quite big population: 244,814,900 in 2014 (Data Statistik Indonesia, 2013-2014). Republic of Indonesia’s Minister of Social, Salim Segaf Al Jufri, said that in 2013 people with disabilities in Indonesia reach 2,8 millions from population in Indonesia (antaranews.com) This number is fewer compared to data from PUSDATIN (Data and Information Center) from Social Ministry, in 2010, that states people with disabilities in Indonesia are 11,580,117 people where 3,474,035 people are those with vision impairment, 3,010,830 people are suffering from physical disability, 2,547,626 have hearing impairment, 1,389,614 people with mental disability and 1,158,012 people experience with chronic disability. While according to data from Minister of Labor and Transmigration, in 2010 the number of people with disabilities is 7,126,409 people (ILO). It is very unfortunate that it is not easy to find valid data on the number of people with disabilities in Indonesia, those numbers above at least can illustrate a big picture of the number of people with disabilities in Indonesia.
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
146 
People with disabilities as mentioned previously are one of fragile and the biggest minority group. Despite the difficulty to access education, economy, information, health, and others, people with disabilities also fragile to be victim of crime or victim of procedure or system of justice process which has no disability awareness. It means it is very possible there is double victim, i.e.: people with disability becomes double victim or multiple victim. First, people with disabilities as victim of crime, and second, people with disability as victim of criminal justice system that is not siding with general interest of people with disabilities because of the lack of disability awareness or even the absence of disability awareness, in this case the unaccommodation of protection and guarantee towards the rights of people with disability in the criminal justice system, whether from the regulation or the legal officer. 
People with disabilities are also fragile to suffer loss because of their disabilities to move as people with physical disability, the disability to hear and speak for people with hearing impairment or deaf and mute, and the disability to think “normally” for people with intellectual disability. All of these things are the factors that triggers the injustice towards people with disability in social-societal life and criminal justice system when they are forced to be involved in it. People with disabilities have 4-10 times higher risk compared to people without disabilities (Leigh Ann Davis, 2005). 
People with intellectual disabilities are fragile of crime such as rape, sexual harassment, and murder (Leigh Ann Davis, 2005). This is clearly different from her/his image as a criminal. A person with mental/intellectual disability is completely can not be presented before the court as a criminal based on Article 44 Criminal Procedure Code (Kitab Undang-undang Hukum Pidana).1 As a picture, deliquency crime that happens to people with disabilities there are at least 15 deliquency crime between July to August 2013 that are handled by SAPDA (Sentra Advokasi Perempuan Difabel dan Anak). 
Based on what the writer has mentioned before in this writing the writer will deliver description on problems faced by people with disabilities in criminal justice system. The writer will also include the case to make it easier to understand problems in criminal justice system in Indonesia related to the involvement of people with disabilities inside it. 
B. DISCUSSION 
1. UNCRPD and The Rights of Peoplw with Disabilities 
UNCRPD is not a convention which is poor in history. There are many international laws that has urged and motivated the founding of UNCRPD, i.e.: Universal Declaration of Human Rights in 1948, Rules on the Equalization of Opportunities for Persons with Disabilities in 1993, UNESCO Convention against Discrimination in Education, UN Convention on the Rights of The Child in 1989, World Declaration on Education for All in 1990, and Towards Full Citizenship – Papers from The 8th International Congress on Including Children with Disabilities in The Community, 2004 Stavanger, Norway. UNCRPD is an international instrument that did not come suddenly out of nowhere because previously in 1971 there was Declaration on The Rights of Mentally Retarded Persons, Declaration on The Rights of Disabled Person in 1975, related to efforts to improve the civil rights and political rights of persons with disabilities, World Program of Action concerning Disabled Persons, Talinn Guidelines for Action on Human Resources Development in the Field of Disability, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, and Standard Rules on the Equalization of Opportunities for Persons with Disabilities. 
Guarantee protection for person with disability in particular is regulated in Article 13 which reads as follows: 
1Article 44 paragraph (1) Criminal Code: Those who commit an act that can not be his/hr responsibility because of his/her mental disability (gebrekkige ontwikkeling) or disturbed because disorder (ziekelijke storing), is can not be convicted.
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
147 
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age- appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. 
This convention demands the ratifying countries to provide equal opportunity and treatment in court for person with disability. The state also must guarantee that each rule of court has to be adjusted with the condition of person with disability in order to enable his/her full role in every stage of the proceedings and court, among many others as a witness. Last, the state must provide training to understand person with disability (for those who works in law institution such as police and prison officials). 
2. General View on Disabilities 
a. Definition and Disabilities in Indonesia 
Definition of disability at least can be differed in two views, i.e.: social model and medical model. In medical model, disabilities is seen as a problem which is different from social model that viewed disabilities as the limitation of opportunity in taking parts in normal societal life on the same equal level with other people due to physical and social obstacles (Rieser, 2006). Other opinion that use social perspective says "disability is the outcome of social arrangements which work to restrict the activities of people with impairments by placing social barriers in their way" (Jaeger and Boumen, 2005). WHO gave definitions on disability as “any restriction or prevention of the performance of an activity, resulting from an impairment, in the manner or within the range considered normal for a human being. This definition by WHO is to an extent rejected by Union of the Physically Impaired Against Segregation (UPIAS) that introduced “social model” of disability. This group defines disability as “the disadvantage or restriction of activity caused by a contemporary social organization which takes no or little account of people who have physical impairments and thus excludes them from the mainstream of society” (Picking, 2000). 
Gregory said that, Definition, though considered as a trivial things but plays a big role to the people’s understanding. Definition has a power to build, maintain, and advance a position in society as it has a power to affect the collective consciousness of a certain society (Fines and Alies, 2013). In Indonesia the definition of “disability” is a new terminology that Indonesian society previously recognized as “Penyandang cacat” or the invalids. “Disabilities” is expected to be a word to replace “Penyandang cacat” that have negative conotation: something broken that made it’s quality and value reduced (Indonesian Grand Dictionary). “Penyandang cacat” is like a law subject that viewed as less empowered. The term “cacat” have negative conotation. The word “penyandang” gave a title to his/her entire personality. The term of “cacat” is a very cruel term and put an end to his/her accessibility in their social environment. Consequently, in various line they are ended up discriminated, can not access the same school with “normal” people, they achieved different education and ended up in job that discredits their ability. 
b. Intellectual disability 
“Mental retardation is a condition of arrested or incomplete development of the mind, which is especially characterized by impairment of skills manifested during the developmental period, which contribute to the overall level of intelligence, i.e. cognitive, language, motor, and social abilities” (WHO, ICD Guide to Mental Retardation, 1996).
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
148 
Mental retardation is a world problem since the cause of it so varied such as genetic factors or chromosomal abnormalities, the misusage of drugs or excessive alcohol intake during pregnancy, birth complication and prematurity, infection and injuries to brain, and some factors which are unknown. Chemical usage, world pollution, war and there are many factors existed in world today as the potential prompts to the cause of mental retardation. That is the main reason why this issue needs to be fully concerned. 
Along with the changing perspective of disabled people through the changing terminology, so it does with the term of mental retardation since Intelligence is not a unitary characteristic but is assessed on the basis of a large number of different, more or less specific skills (WHO, ICD Guide to Mental Retardation, 1996). 
Although people with mental retardation experience the general tendency of having low intellectual skills, those people may show severe impairment in particular area but have a higher skill in other area. The new term is proposed to change the term of Mental Retardation to be Intellectual Disability since Mental retardation does not show dignity or respect. Intellectual Disability is used by professional organizations, journals, agencies and other academic society as mean of the definition formerly known as mental retardation. Classification needs to be made since people with mental retardation usually face multiply problems. Several diagnoses taken from different parts of the classification are due to describe the multiply problem. Based on the classification classified by The ICD-10 Classification of Mental and Behavioral Disorders, WHO, Geneva year 1994, there are: (Virginia Department of Education, 2010) 
1. Mild Mental Retardation, IQ 50-69 
2. Moderate Mental Retardation, IQ 35-49 
3. Severe Mental Retardation, IQ 20-34 
4. Profound Mental Retardation, IQ<20 
The following tables is an elaboration of the level of intellectual disabilities with their features: (Intellectual Disability and Developmental Disorders in Children) 
Describing the Severity of Intellectual Disability: 
Severity Conceptual Domain Social Domain Practical Domain Mild Preschoolers may show no obvious conceptual differences. School- aged children show difficulties in acquiring academic skills (e.g., reading, writing, arithmetic, telling time, using money). Abstract thinking and planning may be impaired; thinking tends to be concrete Communication, conversation, and language are more concrete or immature than the skills of peers. The child may have difficulty accurately understanding the social cues of others. There may be difficulties regulating emotion and behavior compared to peers. The child may function in an age-expected manner with regard to personal care. In adolescence, assistance may be needed to perform more complex daily living tasks like shopping, cooking, and managing money
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
149 
Moderate Preschoolers’ language and pre- academic skills develop slowly. School-age children show slow progress in academic skills. Academic skill development is usually at the elementary school level The child shows marked differences in social and communicative skills compared to peers. Spoken language is simplistic and concrete. Social judgment and decision making are limited. Friendships with peers are often affected by social or communicative deficits The child needs more time and practice learning self-care skills, such as eating, dressing, toileting, and hygiene, than peers. Household skills can be acquired by adolescent with ample practice. Severe The child generally has little understanding of written language or numbers. Caretakers must provide extensive support for problem solving throughout life There are limited spoken language skills with simplistic vocabulary and grammar. Speech may be single words/phrases. The child understands simple speech and gestures. Relationships are with family members and other familiar people The child needs ongoing support for all activities of daily living: eating, dressing, bathing, elimination. Caregivers must supervise at all times. Some youths show challenging behaviors, such as self- injury. Profound Conceptual skills generally involve the physical world rather than symbols (e.g., letters, numbers). Some visual- spatial skills, such as matching and sorting, may be acquired with practice. Co-occurring physical problems may greatly limit functioning. The child has limited understanding of symbolic communication. The child may understand some simple instructions and gestures. Communication is usually through nonverbal, non-symbolic means. Relationships are usually with family members and other familiar people. Co-occurring physical problems may greatly limit functioning The child is dependent on others for all aspects of physical care, health, and safety, although he or she may participate in some aspects of self- care. Some youths show challenging behaviors, such as self- injury. Co-occurring physical problems may greatly limit functioning. 
3. People with Intellectual Disability in Criminal Justice System 
a. Case
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
150 
The case raised by the writer in this writing is the case of deliquency crime (rape) by a man towards woman with mental/intellectual disability. Let just call her name Bunga (not her real name). Bunga suffered from mental disabilities and unable to think “normally” compared to other people with her same age. Her age is over 18 years old, around 22 years old, she is consideed adult based on Criminal Code (KUHAP). 
Justice was really not on her side, because what happened to her was remained no just from criminal law enforcer in Indonesia. The police stated that there was no rape because the sex between Bunga between the man (who is her neighbour) was based on consent, of course prooving the existence of violence or threat of violence from the rapist will be difficult since Bunga herself has difficulty to communicate. 
The following thing is the problem in law enforcement for Bunga who writer found in this case, first, person with disability should be considered having two kind of age, which are calendar age, and mental maturity age. Therefore, Bunga’s age (say 22 years old) but in fact her mental age is less than 18 years old. Person with disabilities will not mentally develop more than 18 years old. The immaturity has to be differed with mental immaturity. 22 years old is not automatically made a person with disability as a mature person. Therefore article on rape can not be implemented but article 287 Criminal Procedure Code: 
“(1) barangsiapa bersetubuh dengan seorang wanita di luar pernikahan, padahal diketahui atau sepatutnya harus diduga, bahwa umurnya belum lima belas tahun, atau kalau umurnya tidak ternyata, bahwa belum mampu dikawin, diancam dengan pidana penjara paling lama sembilan tahun 
(2) Penuntutan hanya dilakukan atas pengaduan, kecuali jika umurnya wanita belum sampai dua belas tahun atau jika ada salah satu hal tersebut Pasal 291 dan Pasal 294”. 
(1) Whoever has sexual intercourse with a woman outside of marriage, but known or reasonably should be expected, that the age has not fifteen years old yet, or even it is actually not that age, that has not been able to be married, punishable by a maximum imprisonment of nine years) 
(2) The prosecution is only done on a complaint, unless the woman has not been until the age of twelve years or if there is one thing that Article 291 and Article 29). 
The consequence of Article 287 Criminal Procedure Code if can be implemented in Bunga’s case is, without complaint from Bunga herself or her custodian, Bunga’s case should be raised by law enforcer as law enforcer’s obligation, because her mental immaturity should be considered as age immaturity as mentioned in Article 287 paragraph (1) Criminal Procedure Code. The alternative Article that can be used to man who raped Bunga is Article 286 of the Criminal Procedure Code that souns as following: “Barangsiapa bersetubuh dengan seorang wanita di luar pernikahan, padahal diketahui bahwa wanita itu dalam keadaan pingsan atau tidak berdaya, diancam dengan pidana penjara paling lama sembilan tahun”(Whoever has sexual intercourse with a woman outside of marriage, but it is known that women in a state of unconscious or helpless, punishable by a maximum imprisonment of nine years). “Helpless” is often interpreted as an “aware” condition but unable to do anything (can not do any resistance) since physically she is tied, or for example abducted. In short, the writer think that the unability to think “normally” as happened in Bunga’s case because of her intellectual disability should be considered “helpless”. 
From this case, the writer draw early conclusion that the problem lies in human resource/law enforcers, who is incapable in making wide interpretation to articles mentioned above, therefore justice for the victim in this case is not implemented. Justice is difficult to access for Bunga, and possibly also for other victims who suffered from similar case like Bunga. 
b. Problem in indonesian criminal justice system 
In this chapter, the writer will describe other problems in Criminal Procedure Code (KUHAP). Criminal Procedure Code is a basic legal proceedings, for police, prosecutor, judge, correctional
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
151 
institution officer, and advocate, and also rules on rights and obligations for people who involved in criminal justice court, including suspects or the defendants. What about the rights of the victim? In the chapters of Criminal Procedure Code we won’t find particular chapter and rules/articles that explcitly talk about or regulates the rights of the victims. Therefore it was then formulated Law Number 13 Year 2006 on Protection of Witness and Victim. 
Generally, the rights of suspect and the defendant are regulated in Chapter VI of Indonesian Criminal Procedure Code, from Article 50 to 68 Indonesian Criminal Procedure Code. There is a need to notice that in this case, in Chapter VI there is already a specific rule for person with disabilities, i.e.: Article 53 paragraph (2) that sounds as follow: “in case of the suspect or the defendant is mute and or deaf there will be application of provisions referred to Article 178”. Meanwhile Article 178 of Indonesian Criminal Procedure Code sounds as follow: “(1) if the suspect or witness is mute and or deaf or unable to write then the presiding judge will raise a person who is good at interacting with the defendant or the witness to be an interpreter in the court. (2) If the defendant or witness is mute and or deaf but able to write, the presiding judge will deliver all questions or warning to him/her in writing and the defendant or witness is instructed to write his/her answer and all the next questions and answers should be read.” 
Based on both articles above, i.e.: Article 53 paragraph (1) and 178 paragraph (1) and (2) Indonesian Criminal Procedure Code, it appears that the regulated needs of person with disabilities are only interpreter aid for person with hearing impairment. While in general there are various disabilities, i.e.: vision impairment (blind), hearing impairment (deaf), speech and language disorders (mute), mental disorder, physical disabilities. The regulation on both articles in Indonesian Criminal Procedure Code above only regulate the rights of people with disability with hearing impairment. It means Indonesian Criminal Procedure Code have not encompassed and being sensitive towards people with other type of disabilities. There is no guarantee given by Criminal Procedure Code as the main rule of criminal procedure in Indonesia in providing accessability for person with disabilities who is involved in criminal proceedings. 
Regulation of Article 2 above implies a rejection towards the need of people with other disabilities, not only people with hearing impairment who need to be provided with interpreter help (sign language for him/her), but also people with mental disabilities as one of types of disabilities that needs a presence of intrepreter for him/her. 
Second problem faced by person with disability is the regulations of articles that regulates the rights of person with disability as mentioned above can contradict with Article 177 paragraph (2) Indonesia Criminal Procedure Code that sounds as follow: “in case someone may not be a witnes in a case he/she can not be spoke person in such case.”2 This will be a dilemma and 
2 Criminal Procedure Code regulates parties that their informations can not be heard and resigned as witness in Article 168, that sounds as follow: 
Unless decided otherwise in this law, the information can not be heard and resign as witness from those who are: 
a. Blood related family or marriage related in a straight line up or down to the third degree of the defendant or those parties who are also defendants; 
b. Brother or sister from the defendants or those who shares status as the defendant, mother’s sister or brother or father’s sister or brother, who have relation due to marriage and children of brother or children of sister of the defendants up to the third degree; 
c. Husband or wife of the defendant even the divorced ones or those who shares status as the defendant. 
It means, a witness who have certain family relation with the suspect can not provide sworn witness, Article 169 paragraph (2) give possibility for those who are allowed to give “unsworn” information, but their information is unworthy as proof, and only serves as information that “could” strengthen the judge’s conviction.
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
152 
potential problem, because the best interpreter is no one but mother, family, or the closest people to person with disability. A person with speaking disability will be able to communicate better with person who is close to him/her and talk intensively with them in daily life. This is not far different with person with mental disability/intellectual disability. 
The third problem for person with disability is there is no guarantee of legal aid for them. Article 56 paragraph (1) Criminal Procedure Code only regulates on imperative obligation from law enforcement, i.e.: police officers, prosecutor, and judge in each level of investigation to present a legal counsel under condition that a suspect or defendant is suspected or charged for committing a crime punishable by death sentence or criminal subject punishable by fifteen years or more for those who are unable shall be sentenced to five years or more for those who don’t have their own legal counsel.3 
Article 56 that regulated the rights to achieve legal aid without cost should be reconstructed and reinterpreted as a free legal aid for the suspect or defendant who can not afford to present legal counsel because they are economically disadvantaged, because subjected to certain criminal charge as regulated in Article 56 paragraph (1) and because one is a person with disability. Therefore automatically a person with disability who involved in criminal proceedings, especially those who are suspects or defendants must not being confused by the judicial proceedings. They are guaranteed to know everthings alleged to him/her, and what are their rights. Whereas people with disabilities are people who are vulnerable to discrimination. The guarantee of legal aid for people with disabilities will help them who involved in criminal justice process since there are enormous number of people with disabilities in Indonesia and only several of them received tertiary education, access to information, therefore they do not comprehend the law. 
The second main problem faced by people with intellectual disability in criminal justice process is the lack of regulation that rules the rights of people with intellectual disability. While the things mentioned above seems that at least for the needs of interpreter for people with intellectual disabilities are remain unfulfilled, and haven’t received attention. With the absence of interpreter for people with intellectual disability ofcourse it is doubtful that justice system from investigation to inkracht decision (final and binding) will be well exercised. 
There are 2 (two) types: (1) Criminal Procedure Code (KUHAP) and (2) human resource, in this case police. Since the handling of Bunga’s case shows that law enforcer (police) is lack of knowledge on disabilities and lack of awareness on disabilities. 
c. Solution 
Remembering the ratification of UNCRPD, especially Article 13 UNCRPD and guarantee access to justice for people with disabilities especially for people with intellectual disabilities, then Indonesia as a ratifying country need to adjust by doing some change even renewal towards it’s Criminal Procedure Code as regulation procedure in criminal justice process. Remembering Article 13 UNCRPD, in order to guarantee access to justice for people with disabilities, Indonesian government must issue a policy that order every law enforcer to join trainings to improve their knowledge on disabilities, and if needed, for some of them to specifically learn disabilities to raise consciousness on the needs of people with disabilities in criminal justice process, in this case especialy for people with mental /intellectual disabilily. 
3 Article 56 paragraph (1) Criminal Procedure Code sounds as follow: 
“In the case of the suspect or defendant that being suspected or charged with death penalty or subjected to punishment of fifteen years imprisonment or more, for those who can not afford, that subjected to punishment of five years imprisonment or more who do not have their own legal counsel, the related officers on every level of investigation in judicial process must appoint legal counsel for them.”
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
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C. CONCLUSION 
At least there are two problems in criminal justice system in Indonesia, first the regulation, which is in Criminal Procedure Code as basic legal proces in Indonesia, and second is the law enforcer who still makes access to justice difficult for people with intellectual disability since the law enforcers have no knowledge and consciousness on disabilities. With those two problems, and remembering the mandate of Article 13 UNCRPD, Indonesian government should revise Criminal Procedure Code and issue policy/regulation that instruct every law enforcer to join training in order to improve their knowledge and consciousness on disabilities. 
REFERENCES 
Literary References: 
Jaeger, P. T. & Boumen, A. C. (2005). Understanding disability (Inclusion, Access, Diversity, and Civil Right) (pp. 15). United States of America, Praeger. 
Picking, C. (2000). Working in Partnership with Disabled People New Perspectives for Professionals Within the Social Model of Disability. In Cooper, J, Law, Rights and Disability (pp. 12-13). London, Jessica Kingsley Publisher. 
Rieser, R. (2006). Disability equality: Confronting the Oppression of the Past. In Cole, M, Education, Equality and Human Rights (Issues of gender, ‘race’, sexuality, disability and social class) (pp. 135-137). New York, Routledge, 
Fines Fatimah & Alies Poetri Lintangsari, 2014, Access to Justice for Person with Disabilities: Solution for the Improvement of Criminal Law Enforcement to Person with Disabilities Throught Disabilities Law Education in Indonesia, proceeding-International Conference: Southeast Asia Legal Education Preparing Lawyers for Tommorow;s Society and Profession, Surabaya. 
Division of Mental Health and Prevention of Substance abuse, 1996, ICD Guide to Mental Retardation (WHO). 
Kitab Undang-Undang Hukum Acara Pidana (Indonesian Criminal Procedure Code), Law Number 8 year 1981.
Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. 
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 
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Cybernetic reference: 
Inklusi Penyandang Disabilitas di Indonesia. Retrieved from http://www.ilo.org/wcmsp5/groups/public/---asia/- --ro-bangkok/---ilo-jakarta/documents/publication/wcms_233426.pdf 
Indonesian Grand Dictionary, (Kamus besar bahasa indonesia). Retrieved from http://kbbi.web.id/cacat. 
Intellectual Disability and Developmental Disorders in Children. Retrieved from http://www.sagepub.com/upm- data/57866_Chapter_4_Weis_Intro_to_Abnormal_Child_and_Adolescent_Psychology_2e.pdf 
Leigh Ann Davis, People with Intellectual Disabilities in the Criminal Justice System: Victim & Suspect. Retrieved from http://www.thearc.org/what-we-do/resources/fact-sheets/criminal-justice 
Penyandang Cacat di Indonesia Mencapai 2,8 Juta. Retireved from http://www.antaranews.com/berita/399334/penyandang-cacat-di-indonesia-mencapai-28-juta 
Perempuan Penyandang Disabilitas Berhadapan Dengan Hukum (Kekerasan Terhadap Perempuan Penyandang Disabilitas). Retrieved from http://www.sapdajogja.org/buletin.html?download=40%3Aperempuan-penyandang-disabilitas-berhadapan- dengan-hukum. 
Proyeksi Penduduk Indonesia menurut kelompok umur dan jenis kelamin tahun 2013-2014. Retrieved from http://www.datastatistik-indonesia.com/proyeksi/index.php?option=com_proyeksi&task=show&Itemid=941 
World Report on Disability. Retrieved from http://www.who.int/disabilities/world_report/2011/report/en/

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Klibel5 law 17

  • 1. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 145 ACCESS TO JUSTICE FOR PERSONS WITH INTELLECTUAL DISABILITIES IN INDONESIA: CASE AND PROBLEM IN INDONESIAN CRIMINAL JUSTICE SYSTEM Fines Fatimah, SH.MH. Faculty of Law Brawijaya University, Jalan Mayjen Haryono No. 169 Malang, East Java, Indonesia – 65145 Email: fallonesjibril@gmail.com ABSTRACT Indonesia is one of the countries that has ratified the UNCRPD (United Nations Convention on the Rights of Persons with Disabilities). The ratification of this convention brings consequences on the adjustment of national legislation with the UNCRPD convention, where this ratification at the same time is a measure in the eyes of the international community that a state party could be consistent with the issues and problems of disability. Persons with disabilities often have little access to justice when they are forced to deal with the criminal justice system. Pursuit of justice through litigation are often not in their favor, therefore without any awareness of law enforcement / awareness of disability will further complicate access to justice for persons with disabilities. Under Article 13 of the UNCRPD, it appeared that the convention requires ratifying states to guarantee equal opportunity and treatment in justice for persons with disabilities. States should also ensure that any judicial rules must be adapted to the circumstances of persons with disabilities so that people with disabilities can fully participate in all stages of the trial court and, for example, as a witness. Finally, the state must provide training to understand these persons with disabilities (for those who work in the judiciary institution such as police or prison officials). Further, this paper aims to describe problem faced by persons with intellectual disabilities to access justice in Indonesian Criminal Justice System. This paper tries to find and propose the alternative solutions to promote the quality of law enforcement in Indonesia, especially for persons with intellectual disabilities. Keywords: access to justice, Indonesian criminal justice system, intellectual disability A. INTRODUCTION About 15% of the world's population lives with some form of disability, of whom 2-4% experience significant difficulties in functioning (WHO, World Report and Disability, 2011). While ILO (international Labor Organization) data states around 82 percents of people with disabilities are located in developing countries and often faces access limitation towards health, education, training, and proper job. Therefore people with disabilities are fragile and the biggest minority group.(Data Statistik Indonesia, 2013-2014) Indonesia is a country with a quite big population: 244,814,900 in 2014 (Data Statistik Indonesia, 2013-2014). Republic of Indonesia’s Minister of Social, Salim Segaf Al Jufri, said that in 2013 people with disabilities in Indonesia reach 2,8 millions from population in Indonesia (antaranews.com) This number is fewer compared to data from PUSDATIN (Data and Information Center) from Social Ministry, in 2010, that states people with disabilities in Indonesia are 11,580,117 people where 3,474,035 people are those with vision impairment, 3,010,830 people are suffering from physical disability, 2,547,626 have hearing impairment, 1,389,614 people with mental disability and 1,158,012 people experience with chronic disability. While according to data from Minister of Labor and Transmigration, in 2010 the number of people with disabilities is 7,126,409 people (ILO). It is very unfortunate that it is not easy to find valid data on the number of people with disabilities in Indonesia, those numbers above at least can illustrate a big picture of the number of people with disabilities in Indonesia.
  • 2. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 146 People with disabilities as mentioned previously are one of fragile and the biggest minority group. Despite the difficulty to access education, economy, information, health, and others, people with disabilities also fragile to be victim of crime or victim of procedure or system of justice process which has no disability awareness. It means it is very possible there is double victim, i.e.: people with disability becomes double victim or multiple victim. First, people with disabilities as victim of crime, and second, people with disability as victim of criminal justice system that is not siding with general interest of people with disabilities because of the lack of disability awareness or even the absence of disability awareness, in this case the unaccommodation of protection and guarantee towards the rights of people with disability in the criminal justice system, whether from the regulation or the legal officer. People with disabilities are also fragile to suffer loss because of their disabilities to move as people with physical disability, the disability to hear and speak for people with hearing impairment or deaf and mute, and the disability to think “normally” for people with intellectual disability. All of these things are the factors that triggers the injustice towards people with disability in social-societal life and criminal justice system when they are forced to be involved in it. People with disabilities have 4-10 times higher risk compared to people without disabilities (Leigh Ann Davis, 2005). People with intellectual disabilities are fragile of crime such as rape, sexual harassment, and murder (Leigh Ann Davis, 2005). This is clearly different from her/his image as a criminal. A person with mental/intellectual disability is completely can not be presented before the court as a criminal based on Article 44 Criminal Procedure Code (Kitab Undang-undang Hukum Pidana).1 As a picture, deliquency crime that happens to people with disabilities there are at least 15 deliquency crime between July to August 2013 that are handled by SAPDA (Sentra Advokasi Perempuan Difabel dan Anak). Based on what the writer has mentioned before in this writing the writer will deliver description on problems faced by people with disabilities in criminal justice system. The writer will also include the case to make it easier to understand problems in criminal justice system in Indonesia related to the involvement of people with disabilities inside it. B. DISCUSSION 1. UNCRPD and The Rights of Peoplw with Disabilities UNCRPD is not a convention which is poor in history. There are many international laws that has urged and motivated the founding of UNCRPD, i.e.: Universal Declaration of Human Rights in 1948, Rules on the Equalization of Opportunities for Persons with Disabilities in 1993, UNESCO Convention against Discrimination in Education, UN Convention on the Rights of The Child in 1989, World Declaration on Education for All in 1990, and Towards Full Citizenship – Papers from The 8th International Congress on Including Children with Disabilities in The Community, 2004 Stavanger, Norway. UNCRPD is an international instrument that did not come suddenly out of nowhere because previously in 1971 there was Declaration on The Rights of Mentally Retarded Persons, Declaration on The Rights of Disabled Person in 1975, related to efforts to improve the civil rights and political rights of persons with disabilities, World Program of Action concerning Disabled Persons, Talinn Guidelines for Action on Human Resources Development in the Field of Disability, Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, and Standard Rules on the Equalization of Opportunities for Persons with Disabilities. Guarantee protection for person with disability in particular is regulated in Article 13 which reads as follows: 1Article 44 paragraph (1) Criminal Code: Those who commit an act that can not be his/hr responsibility because of his/her mental disability (gebrekkige ontwikkeling) or disturbed because disorder (ziekelijke storing), is can not be convicted.
  • 3. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 147 1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age- appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages. 2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. This convention demands the ratifying countries to provide equal opportunity and treatment in court for person with disability. The state also must guarantee that each rule of court has to be adjusted with the condition of person with disability in order to enable his/her full role in every stage of the proceedings and court, among many others as a witness. Last, the state must provide training to understand person with disability (for those who works in law institution such as police and prison officials). 2. General View on Disabilities a. Definition and Disabilities in Indonesia Definition of disability at least can be differed in two views, i.e.: social model and medical model. In medical model, disabilities is seen as a problem which is different from social model that viewed disabilities as the limitation of opportunity in taking parts in normal societal life on the same equal level with other people due to physical and social obstacles (Rieser, 2006). Other opinion that use social perspective says "disability is the outcome of social arrangements which work to restrict the activities of people with impairments by placing social barriers in their way" (Jaeger and Boumen, 2005). WHO gave definitions on disability as “any restriction or prevention of the performance of an activity, resulting from an impairment, in the manner or within the range considered normal for a human being. This definition by WHO is to an extent rejected by Union of the Physically Impaired Against Segregation (UPIAS) that introduced “social model” of disability. This group defines disability as “the disadvantage or restriction of activity caused by a contemporary social organization which takes no or little account of people who have physical impairments and thus excludes them from the mainstream of society” (Picking, 2000). Gregory said that, Definition, though considered as a trivial things but plays a big role to the people’s understanding. Definition has a power to build, maintain, and advance a position in society as it has a power to affect the collective consciousness of a certain society (Fines and Alies, 2013). In Indonesia the definition of “disability” is a new terminology that Indonesian society previously recognized as “Penyandang cacat” or the invalids. “Disabilities” is expected to be a word to replace “Penyandang cacat” that have negative conotation: something broken that made it’s quality and value reduced (Indonesian Grand Dictionary). “Penyandang cacat” is like a law subject that viewed as less empowered. The term “cacat” have negative conotation. The word “penyandang” gave a title to his/her entire personality. The term of “cacat” is a very cruel term and put an end to his/her accessibility in their social environment. Consequently, in various line they are ended up discriminated, can not access the same school with “normal” people, they achieved different education and ended up in job that discredits their ability. b. Intellectual disability “Mental retardation is a condition of arrested or incomplete development of the mind, which is especially characterized by impairment of skills manifested during the developmental period, which contribute to the overall level of intelligence, i.e. cognitive, language, motor, and social abilities” (WHO, ICD Guide to Mental Retardation, 1996).
  • 4. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 148 Mental retardation is a world problem since the cause of it so varied such as genetic factors or chromosomal abnormalities, the misusage of drugs or excessive alcohol intake during pregnancy, birth complication and prematurity, infection and injuries to brain, and some factors which are unknown. Chemical usage, world pollution, war and there are many factors existed in world today as the potential prompts to the cause of mental retardation. That is the main reason why this issue needs to be fully concerned. Along with the changing perspective of disabled people through the changing terminology, so it does with the term of mental retardation since Intelligence is not a unitary characteristic but is assessed on the basis of a large number of different, more or less specific skills (WHO, ICD Guide to Mental Retardation, 1996). Although people with mental retardation experience the general tendency of having low intellectual skills, those people may show severe impairment in particular area but have a higher skill in other area. The new term is proposed to change the term of Mental Retardation to be Intellectual Disability since Mental retardation does not show dignity or respect. Intellectual Disability is used by professional organizations, journals, agencies and other academic society as mean of the definition formerly known as mental retardation. Classification needs to be made since people with mental retardation usually face multiply problems. Several diagnoses taken from different parts of the classification are due to describe the multiply problem. Based on the classification classified by The ICD-10 Classification of Mental and Behavioral Disorders, WHO, Geneva year 1994, there are: (Virginia Department of Education, 2010) 1. Mild Mental Retardation, IQ 50-69 2. Moderate Mental Retardation, IQ 35-49 3. Severe Mental Retardation, IQ 20-34 4. Profound Mental Retardation, IQ<20 The following tables is an elaboration of the level of intellectual disabilities with their features: (Intellectual Disability and Developmental Disorders in Children) Describing the Severity of Intellectual Disability: Severity Conceptual Domain Social Domain Practical Domain Mild Preschoolers may show no obvious conceptual differences. School- aged children show difficulties in acquiring academic skills (e.g., reading, writing, arithmetic, telling time, using money). Abstract thinking and planning may be impaired; thinking tends to be concrete Communication, conversation, and language are more concrete or immature than the skills of peers. The child may have difficulty accurately understanding the social cues of others. There may be difficulties regulating emotion and behavior compared to peers. The child may function in an age-expected manner with regard to personal care. In adolescence, assistance may be needed to perform more complex daily living tasks like shopping, cooking, and managing money
  • 5. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 149 Moderate Preschoolers’ language and pre- academic skills develop slowly. School-age children show slow progress in academic skills. Academic skill development is usually at the elementary school level The child shows marked differences in social and communicative skills compared to peers. Spoken language is simplistic and concrete. Social judgment and decision making are limited. Friendships with peers are often affected by social or communicative deficits The child needs more time and practice learning self-care skills, such as eating, dressing, toileting, and hygiene, than peers. Household skills can be acquired by adolescent with ample practice. Severe The child generally has little understanding of written language or numbers. Caretakers must provide extensive support for problem solving throughout life There are limited spoken language skills with simplistic vocabulary and grammar. Speech may be single words/phrases. The child understands simple speech and gestures. Relationships are with family members and other familiar people The child needs ongoing support for all activities of daily living: eating, dressing, bathing, elimination. Caregivers must supervise at all times. Some youths show challenging behaviors, such as self- injury. Profound Conceptual skills generally involve the physical world rather than symbols (e.g., letters, numbers). Some visual- spatial skills, such as matching and sorting, may be acquired with practice. Co-occurring physical problems may greatly limit functioning. The child has limited understanding of symbolic communication. The child may understand some simple instructions and gestures. Communication is usually through nonverbal, non-symbolic means. Relationships are usually with family members and other familiar people. Co-occurring physical problems may greatly limit functioning The child is dependent on others for all aspects of physical care, health, and safety, although he or she may participate in some aspects of self- care. Some youths show challenging behaviors, such as self- injury. Co-occurring physical problems may greatly limit functioning. 3. People with Intellectual Disability in Criminal Justice System a. Case
  • 6. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 150 The case raised by the writer in this writing is the case of deliquency crime (rape) by a man towards woman with mental/intellectual disability. Let just call her name Bunga (not her real name). Bunga suffered from mental disabilities and unable to think “normally” compared to other people with her same age. Her age is over 18 years old, around 22 years old, she is consideed adult based on Criminal Code (KUHAP). Justice was really not on her side, because what happened to her was remained no just from criminal law enforcer in Indonesia. The police stated that there was no rape because the sex between Bunga between the man (who is her neighbour) was based on consent, of course prooving the existence of violence or threat of violence from the rapist will be difficult since Bunga herself has difficulty to communicate. The following thing is the problem in law enforcement for Bunga who writer found in this case, first, person with disability should be considered having two kind of age, which are calendar age, and mental maturity age. Therefore, Bunga’s age (say 22 years old) but in fact her mental age is less than 18 years old. Person with disabilities will not mentally develop more than 18 years old. The immaturity has to be differed with mental immaturity. 22 years old is not automatically made a person with disability as a mature person. Therefore article on rape can not be implemented but article 287 Criminal Procedure Code: “(1) barangsiapa bersetubuh dengan seorang wanita di luar pernikahan, padahal diketahui atau sepatutnya harus diduga, bahwa umurnya belum lima belas tahun, atau kalau umurnya tidak ternyata, bahwa belum mampu dikawin, diancam dengan pidana penjara paling lama sembilan tahun (2) Penuntutan hanya dilakukan atas pengaduan, kecuali jika umurnya wanita belum sampai dua belas tahun atau jika ada salah satu hal tersebut Pasal 291 dan Pasal 294”. (1) Whoever has sexual intercourse with a woman outside of marriage, but known or reasonably should be expected, that the age has not fifteen years old yet, or even it is actually not that age, that has not been able to be married, punishable by a maximum imprisonment of nine years) (2) The prosecution is only done on a complaint, unless the woman has not been until the age of twelve years or if there is one thing that Article 291 and Article 29). The consequence of Article 287 Criminal Procedure Code if can be implemented in Bunga’s case is, without complaint from Bunga herself or her custodian, Bunga’s case should be raised by law enforcer as law enforcer’s obligation, because her mental immaturity should be considered as age immaturity as mentioned in Article 287 paragraph (1) Criminal Procedure Code. The alternative Article that can be used to man who raped Bunga is Article 286 of the Criminal Procedure Code that souns as following: “Barangsiapa bersetubuh dengan seorang wanita di luar pernikahan, padahal diketahui bahwa wanita itu dalam keadaan pingsan atau tidak berdaya, diancam dengan pidana penjara paling lama sembilan tahun”(Whoever has sexual intercourse with a woman outside of marriage, but it is known that women in a state of unconscious or helpless, punishable by a maximum imprisonment of nine years). “Helpless” is often interpreted as an “aware” condition but unable to do anything (can not do any resistance) since physically she is tied, or for example abducted. In short, the writer think that the unability to think “normally” as happened in Bunga’s case because of her intellectual disability should be considered “helpless”. From this case, the writer draw early conclusion that the problem lies in human resource/law enforcers, who is incapable in making wide interpretation to articles mentioned above, therefore justice for the victim in this case is not implemented. Justice is difficult to access for Bunga, and possibly also for other victims who suffered from similar case like Bunga. b. Problem in indonesian criminal justice system In this chapter, the writer will describe other problems in Criminal Procedure Code (KUHAP). Criminal Procedure Code is a basic legal proceedings, for police, prosecutor, judge, correctional
  • 7. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 151 institution officer, and advocate, and also rules on rights and obligations for people who involved in criminal justice court, including suspects or the defendants. What about the rights of the victim? In the chapters of Criminal Procedure Code we won’t find particular chapter and rules/articles that explcitly talk about or regulates the rights of the victims. Therefore it was then formulated Law Number 13 Year 2006 on Protection of Witness and Victim. Generally, the rights of suspect and the defendant are regulated in Chapter VI of Indonesian Criminal Procedure Code, from Article 50 to 68 Indonesian Criminal Procedure Code. There is a need to notice that in this case, in Chapter VI there is already a specific rule for person with disabilities, i.e.: Article 53 paragraph (2) that sounds as follow: “in case of the suspect or the defendant is mute and or deaf there will be application of provisions referred to Article 178”. Meanwhile Article 178 of Indonesian Criminal Procedure Code sounds as follow: “(1) if the suspect or witness is mute and or deaf or unable to write then the presiding judge will raise a person who is good at interacting with the defendant or the witness to be an interpreter in the court. (2) If the defendant or witness is mute and or deaf but able to write, the presiding judge will deliver all questions or warning to him/her in writing and the defendant or witness is instructed to write his/her answer and all the next questions and answers should be read.” Based on both articles above, i.e.: Article 53 paragraph (1) and 178 paragraph (1) and (2) Indonesian Criminal Procedure Code, it appears that the regulated needs of person with disabilities are only interpreter aid for person with hearing impairment. While in general there are various disabilities, i.e.: vision impairment (blind), hearing impairment (deaf), speech and language disorders (mute), mental disorder, physical disabilities. The regulation on both articles in Indonesian Criminal Procedure Code above only regulate the rights of people with disability with hearing impairment. It means Indonesian Criminal Procedure Code have not encompassed and being sensitive towards people with other type of disabilities. There is no guarantee given by Criminal Procedure Code as the main rule of criminal procedure in Indonesia in providing accessability for person with disabilities who is involved in criminal proceedings. Regulation of Article 2 above implies a rejection towards the need of people with other disabilities, not only people with hearing impairment who need to be provided with interpreter help (sign language for him/her), but also people with mental disabilities as one of types of disabilities that needs a presence of intrepreter for him/her. Second problem faced by person with disability is the regulations of articles that regulates the rights of person with disability as mentioned above can contradict with Article 177 paragraph (2) Indonesia Criminal Procedure Code that sounds as follow: “in case someone may not be a witnes in a case he/she can not be spoke person in such case.”2 This will be a dilemma and 2 Criminal Procedure Code regulates parties that their informations can not be heard and resigned as witness in Article 168, that sounds as follow: Unless decided otherwise in this law, the information can not be heard and resign as witness from those who are: a. Blood related family or marriage related in a straight line up or down to the third degree of the defendant or those parties who are also defendants; b. Brother or sister from the defendants or those who shares status as the defendant, mother’s sister or brother or father’s sister or brother, who have relation due to marriage and children of brother or children of sister of the defendants up to the third degree; c. Husband or wife of the defendant even the divorced ones or those who shares status as the defendant. It means, a witness who have certain family relation with the suspect can not provide sworn witness, Article 169 paragraph (2) give possibility for those who are allowed to give “unsworn” information, but their information is unworthy as proof, and only serves as information that “could” strengthen the judge’s conviction.
  • 8. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 152 potential problem, because the best interpreter is no one but mother, family, or the closest people to person with disability. A person with speaking disability will be able to communicate better with person who is close to him/her and talk intensively with them in daily life. This is not far different with person with mental disability/intellectual disability. The third problem for person with disability is there is no guarantee of legal aid for them. Article 56 paragraph (1) Criminal Procedure Code only regulates on imperative obligation from law enforcement, i.e.: police officers, prosecutor, and judge in each level of investigation to present a legal counsel under condition that a suspect or defendant is suspected or charged for committing a crime punishable by death sentence or criminal subject punishable by fifteen years or more for those who are unable shall be sentenced to five years or more for those who don’t have their own legal counsel.3 Article 56 that regulated the rights to achieve legal aid without cost should be reconstructed and reinterpreted as a free legal aid for the suspect or defendant who can not afford to present legal counsel because they are economically disadvantaged, because subjected to certain criminal charge as regulated in Article 56 paragraph (1) and because one is a person with disability. Therefore automatically a person with disability who involved in criminal proceedings, especially those who are suspects or defendants must not being confused by the judicial proceedings. They are guaranteed to know everthings alleged to him/her, and what are their rights. Whereas people with disabilities are people who are vulnerable to discrimination. The guarantee of legal aid for people with disabilities will help them who involved in criminal justice process since there are enormous number of people with disabilities in Indonesia and only several of them received tertiary education, access to information, therefore they do not comprehend the law. The second main problem faced by people with intellectual disability in criminal justice process is the lack of regulation that rules the rights of people with intellectual disability. While the things mentioned above seems that at least for the needs of interpreter for people with intellectual disabilities are remain unfulfilled, and haven’t received attention. With the absence of interpreter for people with intellectual disability ofcourse it is doubtful that justice system from investigation to inkracht decision (final and binding) will be well exercised. There are 2 (two) types: (1) Criminal Procedure Code (KUHAP) and (2) human resource, in this case police. Since the handling of Bunga’s case shows that law enforcer (police) is lack of knowledge on disabilities and lack of awareness on disabilities. c. Solution Remembering the ratification of UNCRPD, especially Article 13 UNCRPD and guarantee access to justice for people with disabilities especially for people with intellectual disabilities, then Indonesia as a ratifying country need to adjust by doing some change even renewal towards it’s Criminal Procedure Code as regulation procedure in criminal justice process. Remembering Article 13 UNCRPD, in order to guarantee access to justice for people with disabilities, Indonesian government must issue a policy that order every law enforcer to join trainings to improve their knowledge on disabilities, and if needed, for some of them to specifically learn disabilities to raise consciousness on the needs of people with disabilities in criminal justice process, in this case especialy for people with mental /intellectual disabilily. 3 Article 56 paragraph (1) Criminal Procedure Code sounds as follow: “In the case of the suspect or defendant that being suspected or charged with death penalty or subjected to punishment of fifteen years imprisonment or more, for those who can not afford, that subjected to punishment of five years imprisonment or more who do not have their own legal counsel, the related officers on every level of investigation in judicial process must appoint legal counsel for them.”
  • 9. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 153 C. CONCLUSION At least there are two problems in criminal justice system in Indonesia, first the regulation, which is in Criminal Procedure Code as basic legal proces in Indonesia, and second is the law enforcer who still makes access to justice difficult for people with intellectual disability since the law enforcers have no knowledge and consciousness on disabilities. With those two problems, and remembering the mandate of Article 13 UNCRPD, Indonesian government should revise Criminal Procedure Code and issue policy/regulation that instruct every law enforcer to join training in order to improve their knowledge and consciousness on disabilities. REFERENCES Literary References: Jaeger, P. T. & Boumen, A. C. (2005). Understanding disability (Inclusion, Access, Diversity, and Civil Right) (pp. 15). United States of America, Praeger. Picking, C. (2000). Working in Partnership with Disabled People New Perspectives for Professionals Within the Social Model of Disability. In Cooper, J, Law, Rights and Disability (pp. 12-13). London, Jessica Kingsley Publisher. Rieser, R. (2006). Disability equality: Confronting the Oppression of the Past. In Cole, M, Education, Equality and Human Rights (Issues of gender, ‘race’, sexuality, disability and social class) (pp. 135-137). New York, Routledge, Fines Fatimah & Alies Poetri Lintangsari, 2014, Access to Justice for Person with Disabilities: Solution for the Improvement of Criminal Law Enforcement to Person with Disabilities Throught Disabilities Law Education in Indonesia, proceeding-International Conference: Southeast Asia Legal Education Preparing Lawyers for Tommorow;s Society and Profession, Surabaya. Division of Mental Health and Prevention of Substance abuse, 1996, ICD Guide to Mental Retardation (WHO). Kitab Undang-Undang Hukum Acara Pidana (Indonesian Criminal Procedure Code), Law Number 8 year 1981.
  • 10. Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4. November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4 154 Cybernetic reference: Inklusi Penyandang Disabilitas di Indonesia. Retrieved from http://www.ilo.org/wcmsp5/groups/public/---asia/- --ro-bangkok/---ilo-jakarta/documents/publication/wcms_233426.pdf Indonesian Grand Dictionary, (Kamus besar bahasa indonesia). Retrieved from http://kbbi.web.id/cacat. Intellectual Disability and Developmental Disorders in Children. Retrieved from http://www.sagepub.com/upm- data/57866_Chapter_4_Weis_Intro_to_Abnormal_Child_and_Adolescent_Psychology_2e.pdf Leigh Ann Davis, People with Intellectual Disabilities in the Criminal Justice System: Victim & Suspect. Retrieved from http://www.thearc.org/what-we-do/resources/fact-sheets/criminal-justice Penyandang Cacat di Indonesia Mencapai 2,8 Juta. Retireved from http://www.antaranews.com/berita/399334/penyandang-cacat-di-indonesia-mencapai-28-juta Perempuan Penyandang Disabilitas Berhadapan Dengan Hukum (Kekerasan Terhadap Perempuan Penyandang Disabilitas). Retrieved from http://www.sapdajogja.org/buletin.html?download=40%3Aperempuan-penyandang-disabilitas-berhadapan- dengan-hukum. Proyeksi Penduduk Indonesia menurut kelompok umur dan jenis kelamin tahun 2013-2014. Retrieved from http://www.datastatistik-indonesia.com/proyeksi/index.php?option=com_proyeksi&task=show&Itemid=941 World Report on Disability. Retrieved from http://www.who.int/disabilities/world_report/2011/report/en/