128
Journal of Southeast Asian Human Rights, Vol. 1 No.2 December 2017. pp. 128-146
doi: 10.19184/jseahr.v1i2.6135
© University of Jember & Indonesian Consortium for Human Rights Lecturers

The Role of Indonesian CSOs in Increasing the
Understanding of Disabled Issues in the Indonesian
Criminal Justice System
Dio Ashar Wicaksana, Indonesian Judicial Monitoring Society – Faculty of Law
University of Indonesia, Indonesia

Abstract
Indonesia successfully amended Disabled People Law in early 2016. The fundamental
amendment is creating equal rights and opportunity for disabled groups. Disability group in this
context is the people who have physical and mental limitations to communicate and participate
effectively with another people as equals. But, nowadays some people prefer using the term
“disabled” than “disabled”.
Disabled alongside with feminist, LGBT and minority groups commonly known as a part of
discriminated groups in society. Disabled activist believe that disabled is a natural part of
human diversity – something that should be valued and respected, rather than pitied, feared
and discriminated. Disabled people are potentially to be victim 4-10 times more than other
people. Pusham UII (2015) highlighted the existence of many violations in the Indonesian
criminal justice system to disabled people, such as: improper questioning, failure to process
reports from blind people and a general atmosphere of disrespect to the disabled community.
One of the major problems is the Indonesian law officers’ lack of knowledge and understanding
of disabled groups.
In Yogyakarta, Civil Society Organization (CSO) has significant role to increase
understanding of disabled issues. In this instance, Sasana Integration and Advocacy of Disabled
(Sigab) developed an inclusive village project in Yogyakarta. They provide education and
socialization of disabled issues within village’s community. Another example, Pusham UII have
developed the curriculum and module to provide training in legal institution (Police, Prosecutor
and Judge).
This paper discusses the understanding of law officer after Indonesian disability law already
enacted in early 2016. Thereafter, I will discuss how Indonesian CSOs helps to increase the
understanding of disabled issues, to eliminate gap of knowledge between legal formal with
practice area. Consequently, my research question is formulated: “How does the role of
Indonesian CSOs to increase the understanding of disabled issues in the Indonesian criminal
justice system?”
Keywords: Disability, Civil Society Organization, Criminal Justice System

I.

INTRODUCTION

Indonesia successfully amended the Disabled People Law in early 2016, and it was
following the ratification of Convention on the Rights of Persons with Disabilities

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The Role of Indonesian CSOs

(CRPD) in 2011. This amendment was fundamentally recognizing equal rights and
opportunity for disabled groups1. This law also reconstructs the term of impairment for
disability groups - disability groups in this context are the people who have physical and
mental limitations to communicate and participate effectively with another people as
equals.2But, Indonesian currently activist are promoting the use of the term “disabled”
instead of “disabled”. The term disabled comes from “differently abled”, it has different
implications to disability, which translates into effect to ‘inability’.
Disabled alongside with feminist, LGBT and minority groups commonly known as
a part of discriminated groups in society. Disabled activist believe that disabled is a
natural part of human diversity – something that should be valued and respected, rather
than pitied, feared and discriminated. Disabled people are potentially to be victim 4-10
times more than other people. Pusham UII (2015) highlighted the existence of many
violations in the Indonesian criminal justice system to disabled people, such as:
improper questioning, failure to process reports from blind people and a general
atmosphere of disrespect to the disabled community. One of the major problems is the
Indonesian law officers’ lack of knowledge and understanding of disabled groups.
Notwithstanding, Indonesian law already established equality and new perspective
to disabled people, however, the implementation is not successfully well-implemented in
practice area. As example, Indonesian already ratified CRPD which focused on equal
rights and protection of disabled persons, but there are 68% cases which are not
informed to have legal assistance during the criminal justice process (MaPPI-FHUI,
2016). Therefore, there is still the missing link between legal formal with the
implementation in the practice area - one of the major problems is the lack of
knowledge and understanding to disabled people.
In Yogyakarta, Civil Society Organization (CSO) has a significant role to increase
understanding of disabled issues. As example, Sasana Integration and Advocacy of
Disabled (Sigab) developed an inclusive village project in Yogyakarta. They provide
education and socialization of disabled issues within village’s community. Another
example, Pusham UII have developed the curriculum and module to provide training
for legal institution (Police, Prosecutor, and Judge).

II. THE CULTURAL OF UNDERSTANDING TO DISABLE PEOPLE
According to the data of the World Bank (WB), there are one billion people have some
experiences of diffability, and it was estimating that 15% of the world’s population,
particularly is higher in the developing countries (2017).3 Disability/diffability issues is a
one of subject of social and political discourse. The disable activist believes that disable
is a natural part of human diversity – something that should be valued and respected,
rather than feared, pitied, and discriminated (Elizabeth Barnes, 2014). This perspective
has a function to reconstructive diffability as not impairment person anymore. Because

1
2
3

Indonesia, Act Number 8/2016 regards Disability People, section of consideration.
Ibid, article 1.
http://www.worldbank.org/en/topic/disability/overview , retrieved on 4 May 2017.

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Dio Ashar Wicaksana

the most of people are still concern disable people as a “different person from normal
condition” with short-and long-term sickness.4
The big question how the impairment concept has existed in our life. In order to
answer these question, we should understand the concept of human being. In
Indonesian, the religious value is important for Indonesian people, moreover the
Indonesian government has declared as a not secular country which is important to
analyze the concept of the human being according to religious value. First of all, all of
religious in Indonesia never stated that the God created human being in the condition
of impairment. The God only distinguished people according to the morality and the
behavior of the people. Therefore, the religious value never classifies people from the
physical conditions.5
Thus, the next question is who is responsible for classifying people based on
impairment condition. Furthermore, this condition influenced by the power system in
human’s circumstances – as for the example, human tends to be the people who have
good materials, perfect body, well educated, as well as obtain proper position within the
social class (Sorjono Soekanto, 1996). Eventually, the impairment terms initiated by the
non-disable person to distinguish and classify people based on physical condition - they
have labeled people who have the deficiency of physical, cognitive or mental as the
impairment persons.
Charles Taylor (1994) mentioned that our identity is formed by recognition, nonrecognition, or by false recognition. Nonetheless, non-recognition and false recognition
emerge harm, oppression, misunderstood, distorted and discrimination.6 Mostly, the
disable group experienced to be underestimated, discriminated and exclusion. For
example, Saphiro (1993) argued that American disable people have gone unnoticed
and misunderstood – In some ways, he also mentioned that the disable persons as
individuals might be more successful at participating in society that the disable persons
as a group.7 In this sense, the problem of exclusion for disable group is false recognition
or misunderstanding about diffability as a group.
Francis & Silver (2000) also mentioned there is a survey about social exclusion of
minorities, and the interesting fact is the general population has not believed that the
disable persons is comparable to the social exclusion of another minority group, such as
women, racial and religious minorities. He gave an example in the job listings when a
job posted an affirmative action for minority candidates, but the disable people are not
included in that job-list.8

4
5

6
7
8

Colin Barnes, Disability Studies and the Academy – Past, Present, and Future (2013), Ars Vivendi
Journal, 4 (March 2013), p. 3.
Setia Adi Purwanta, “Penyandang Disabilitas (translation: People with Disabilities)” in Eko Riyadi, et
al, Vulnerable Groups: Kajian dan Mekanisme Perlindungannya (Translation: Vulnerable Group:
Study and Mechanism of Protection), (Yogyakarta: Pusham UII, 2012), p. 260-261.
Charles Taylor, Multiculturalism (Examining the Politics of Recognition), (New Jersey: Princeton
University, 1994), p. 27.
Paul T. Jaeger & Cynthia Ann Bowman, Understanding Disability (Inclusion, Access, Diversity, and
Civil Rights, (London: Praeger Publishers, 2005), p. 129.

Ibid.

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The Role of Indonesian CSOs

This perspective looks disable as weak, needy and dependent – that is assume that
disable incapable of getting good jobs, living and participating fully in society.9 If
disable people perceived as “unhealthy”, they potentially isolated by the majority group.
M. Oliver (1990) analysed that the conception of difability was conceived and spread
out across other cultures and societies – he also added the capitalist societies has a big
influence to locate the disable people as the minority group. In the wake of capitalism
and modernization. Therefore, the disable people is considered as non-valuable human
resource or human capital. The result that disable people is being perceived as
marginalized group in the socio-economic structures. There are some of disable people
often lack and denied with their human, social and economic rights. These factors
generate the exclusivism of disable people.
Although the mainstream society, particularly non-disable people fully accept of
disable persons in daily life, but it would be still more valuable non-disable people than
disable in socio-economic context.10 In this sense, this perspective tends to locate
disable people as the charity activities – thus, people who lack ability to work are
incapable to actively participate and involve with economic and social activities.
Consequently, the mainstream society claim a normalize of their physical and mental
conditions will automatically make disable people better off.
The main problem is the disable does not seem to be a natural part of diversity.
Paul T. Jaeger (2005) believe there is great diversity among the disable people. He
argued that the disable people have different kind of diffability for participating and
living in society. Thus, the disable people should develop different skills, perspective,
and creativity in dealing with conditions and situations.11 Furthermore, they can
participate and contribute based on their abilities to a diversity of society. Therefore, the
government or society should take into account to the specialty of the disable people
and remove the social-barriers for them.
In addition, Kurniawan (2014) mention some group presumably recognized as the
part of disable group, namely;
a. The wheelchair users
b. Ambulant disabled
c. The deaf people
d. The blind people
e. The mental retardation
f. People who have limitation in cognitive ability
g. People who has limitation in any abilities
h. The elderly
i. The children
In Indonesia, this issue is important, because most of the Indonesian society still
generalize of impairment – they believe disable people unable to participate effectively
9
10
11

Kathryn Sullivan, The Prevalence of the Medical Model of Disability in Society (2011), (AHS
Capstone Projects Paper 13), p. 2.
Elizabeth Barnes, Valuing Disability, Causing Disability (2014), The University of Chicago Press
Journals Vol. 1 (October 2014), p. 91.
Paul T. Jaeger & Cynthia Ann Bowman. supranote 7.

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Dio Ashar Wicaksana

and independently in development. Then, the social construct of impairment affects that
the government and NGOs is failed to address the main reason of the exclusion of
disable people within economic, political and social life (Suharto, 2011).

III. THE SOCIAL MODEL FOR THE DISABLED PEOPLE
Previously, Indonesian legal system used term “impairment” for people who have
physical and mental limitation. This term has received criticism, particularly by human
rights activists, because when people still label disabled citizens as impaired, it tends to
lead to discrimination.12 Hence, the new Indonesian disability act reconstructed this
term to be disabled persons following United Nations Convention on the Rights of
Person with Disabilities (CRPD).
In this sense, it is important to understand the conceptual distinction between
impairment and disability. According to the Union of the Physically Impaired Against
Segregation (UPIAS) 1976:
Impairment means is lacking part of or all of a limb, or having a defective
limb organism or mechanism of the body. Meanwhile, the disability means
is the disadvantage or restriction of activity caused by contemporary.
Paul Hunt on behalf of UPIAS also mentioned that
The disabled people are therefore an oppressed group in society. It is
necessary to understand the distinction between the physical impairment
and the social situation, called disability of people with such impairment.
Thus, we define impairment as lacking part of or all of a limb, or having
defective limb; and disability as the disadvantage or restriction of activity
caused by a contemporary social organisation which takes no or little
account of people who have physical impairments and thus excludes them
from participation in the mainstream of social activities. Therefore, physical
disability is a particular form of social oppression.
According to the explanation above, the disability terms is emphasized on social
reconstruction the meaning of disabled person to focus on limitation of society – to
understand and value the abilities to contribute for the disabled people. Meanwhile, the
impairment term, mainly focus on deficiency of physical condition. Therefore, the
disability term struggles to create a set of goals, through of the disability movement to
reconstruct and liberate disabled people from a social oppression. According to the
UPIAS’ definition that this guide constructs that disable group is a part of the oppressed
group – thus, the disable persons have inequality accessibility within society’s life, such
as public transportation, health service, housing, and education.
Nonetheless, Indonesian activist prefers to use disabled terms rather than disabled disabled comes from “different able”, it is totally different to disability which means “dis
abilities”. This term has struggled to change social perspectives that disabled is not a
person who have incapacity to do “normal” activities, but a person who able to do
12

VSO, A Handbook on Mainstreaming Disability, (London: VSO, 2006), p. 16.

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The Role of Indonesian CSOs

something with different abilities.13 For the instance, NurulSaadah is the person who
walks by sticks in her hands. It means that she can do “normal” activities like another
person but with the different ability - if another people is walking by their feet, but
Nurul is walking by the sticks.14 Therefore, the concept of “normality” activities comes
from the misunderstanding and false recognition by another person.
This term was initiated by Indonesian scholars Mansour fakih and Setia Adi
Purwanta15 – the term disabled is used not only for naming but also to reconstruct the
negative perspective of impairment. Therefore, this paper will be used “diffability”
names to replace the normative terms of “disability”. Originally, the term of disabled
developed as part of a medical model. This approach looks disabled as weak, needy
and dependent, and it assumes that disabled are incapable of getting good jobs, living
and participating fully in society.16
The model of difability are conceptual frameworks to understand difability issues –
there are two common types are medical model and social model (Katie Sullivan, 2011).
Both model provide contrast perspective to figure out for disable people. Therefore, it is
important for everyone in order to understand and recognize the disable person as
equal person in society. In the late 19th and early 20th century, with the rise of the
medical profession, the medical model was dominating views of difability (Midgley,
2009).
Originally, the term difability developed as part of a medical model. The
conceptualization of the medical model was to emphasize the health condition of
disable people. This model also known as the individual model, which is the underlying
cause of the problems on their medical condition or impairment. Therefore, this
approach tends to give a solution for normalizing their “impairment” with
medicalization.
The big assumption of this model if disable people considered ‘unhealthy’, because
that people with their “impairment” is due to the way in which their bodies are shaped
and experience. The disable person is generally rejected this model, because this
approach generates barriers of natural relationship with their families, communities, as
well as society - they also believe that it will be led to their low self-esteem, undeveloped
life skills, poor education and high unemployment levels (David Crabtree, 2013).
According to explanation of medical model, that approach generates a negative
stereotype for disable people. Every society has social norms that define what that
society is and that defines what is desirable and undesirable. 17 For instance, Philip
Selznick argued that community will create a framework of shared beliefs, interests and
13
14
15
16
17

M. Syafi’ie and Mahrus Ali, Potret Difabel Berhadapan dengan Hukum Negara (translation: Potrait of
Disabled within National Law) (Sleman: SIGAB, 2014), p. 11.
Choky R. Ramadhan, et al, AnalisisKonsistensiPutusanDifabel (translation: Consistency Analysist of
Disabled Judicial Decisions), (Depok: MaPPI-FHUI, 2016), p. 11.
Suharto, “Community-based Empowerment for Advocating Diffability Rights (2011) in Dev ISSues
Volume 13/01/May 2011, p. 12.
Kathryn Sullivan, The Prevalence of the Medical Model of Disability in Society, (2011 AHS Capstone
Projects Paper 13), p. 2.
Marie Mercat-Bruns, Antidiscrimination Models and Enforcement, (University of California Press,
2016), p. 30.

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Dio Ashar Wicaksana

commitments that establish into a common faith, a personal identity, a sense of
belonging and supportive structure of activities and relationship. In this sense, we think
about law in that sense as expressing the social norms of a particular culture and
historical moments – laws instantly reinforce to community for sharing world of
common faith – they will characteristically to enforce norm for defining their individual
and social identity.18
Previously, Indonesian legal system used term “impairment” for people who have
physical and mental limitation.19 That act is considered not relevant anymore – the
fundamental problems of disable people are lack comprehension of society or officers
to understand the value and existence of disable as the equal citizens. The predominant
policy of diffability has been focusing in the charity program – the disable people is
recognized as the weak and needy persons.
This approach affects to any aspects either to social policy, as well as legal policy.
In the legal policy, the disable people have no equal opportunities and rights with other
people. Furthermore, the disable people only have an opportunity to get education and
work according to the specific kind and level of their impairment.20 It means, they will
have difficulties if they want to get education and with non-disable people in the same
area – In this sense, however, totally different with the social model which focus on
eliminating the social barriers. Therefore, this perspective only emphasizes the disable
people is the barriers instead of the social and environment.
In this model, society apparently difficult to accept disable people. If the disable
people who considered as “unhealthy” persons, they should be recover themselves with
treatment or/and rehabilitation. In this sense, people should adapt by themselves for
existing and participating in society. Moreover, the mainstream society only focus and
generalize disable person in the same standard, that makes this model potentially
generate negative stereotype. It is so easy to see the impact of negative stereotype that
construct the disable people to be marginalized group. Frequently, this perspective does
not genuinely identify disable person as such. In order to determine disable persons, we
should think of the cultural of disable persons are unique and diverse.
At the same time, medical personnel play a major role with respect to the medical
elements of the various disability standards (Frank S. Bloch, 1992). Medical personnel
should have primary responsibility for identifying medical issues of disable persons.
Active involvement of the medical profession in the disability determination process will
be beneficial to give greater confidence in decision which relates to the disable
persons.21 In spite of, the medical model generates a false recognition for disable
people, however medical intervention still plays an important role in identifying the
needs and barriers of disable people. In this sense, the main problem of the medical
model is not talking about medical treatment for disable people, but the perspective to
18

Ibid.

19

Indonesian Act Number 4/1997 regarding the Impairment People mentioned Impairment people is
every person who has incapacity in physical and mental, therefore it could be their barriers to
properly participate and life.
Indonesian Law Number 4/97 regarding the impairment people, article 11-13.
Frank S. Bloch, Disability Determination (the Administrative Process and the Role of Medical
Personnel), (London: Greenwood Press, 1992), p. 113.

20
21

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The Role of Indonesian CSOs

generalize all of disable persons are unhealthy and the solution only goes to normalize
their deficiency.
Since the 1960s, some of disable people involved with the “radical disability
movement” in the United Kingdom (UK) and United States (US) (Raymond Lang,
2007). They genuinely rejected the concept of disablement with socio-political
perspective, particularly stereotype that disable as the “unhealthy” persons. They argued
that disable people were disadvantaged not because of their impairment, but as the false
recognition/misunderstanding of social, cultural, economic, and environmental limits to
disable people.
This new perspective was part of a social model rather than the original medical
model. This model inspired by The Fundamental Principle of Disability 22- The social
model emphasis into the rights and the requirement for society to accept disable
persons. Social model has been known as a part of socio-politics movement in the
disable discourses as citizenship rights.23 David Crabtree (2013) argued that social
model has fundamental principle, that is,
Disability: The loss or limitation of opportunities to take part in society on
an equal level with others due to social and environmental barriers.
Disability is shown as being caused by ‘barriers‘or elements of social
organization which takes no or little account of people who have
impairments.
The social model also urges the new idea that disable people should independently
decide for their own lives (Bill Albert, 2014). This approach fundamentally focuses on
removing of disabling barriers, as well as emphasize on human rights perspective. This
perspective is perceived that society as the main reason of limited accessibility for
disable people.24 Thus, the primary focus of social model on the economic,
environmental, and cultural barriers encountered to the negative stereotype of
impairment (Mike Oliver, 2004). As an example, people who cannot walk by their own
self are not mean they are impairment, but because society does not accommodate
ramp as accessibility in the public transportation. The main point is government and
society should start to change a perspective to understand and recognize disable as
equal persons.
Nevertheless, there are critics to the social model. Particularly this model
presumably ignores the reality that impairment in disable discourse. Tom Shakespeare
mentioned that some of disable people still need a medical support – there are some
conditions potentially may have premature death, or any condition which involves pain
for disable people.25 Although this approach was arisen to challenge the medical
approach, however the social model is not totally reject the medical intervention.
This model also realizes that there is some condition the disable people need a
medical treatment - it could be stressed that social model is rejecting the medicalization
22
23

This Principle was arranged by The Union of the Physically Impaired Against Segregation (UPIAS)
Choky Ramadhan, et al, supranote 14, p. 15.

24

Ibid.

25

Tom
Shakespeare,
‘the
social
model
of
https://www.academia.edu/5144537/The_social_model_of_disability.

disability’,

online:

136
Dio Ashar Wicaksana

of disable people, not rejecting the medical intervention (Bill Albert, 2004). In addition,
this perspective is not genuinely denial that medical intervention can be necessary and
important for the improvement of the lives of disable people. Therefore, people should
not truly have presented the medical model and social model as dichotomous – both of
the perspectives, however, should be viewed and understood as the balanced approach
to the different aspects and needs of the diffability.26
Indonesian disability law is influenced by international human rights discourse.
The government tried to follow the concept of social model by the pressure of
international communities. The human rights discourse globally arose by the
international discourse in the United Nations (UN), especially after the UN enacted the
Declaration of Universal Human Rights in 1948. Fundamentally, this declaration
guarantees the protection of the “rights and freedoms” to all humans.27 Despite, it was
not explicitly inserted specific provision on the rights of minorities28, including diffability
rights.
In the civil rights movements of the 1960’s pressured to gain greater accessibility for
disable people.29 This movement was generated response the Declaration of Universal
Human Rights by international communities’ movement, particularly Civil Society
Organizations (CSO). In 1975, the UN signed the Declaration of the Rights of Disabled
Persons which explicitly mentioned that disabled persons have the same civil and
political rights as another human being - therefore, the state should protect disable
people by the security of economic, social, financial, as well as medical treatment.
Nevertheless, this instrument still considers the disable with the medical problem
and depends on the political will of the state to allocate the social security and
prosperity for disable people. This approach is totally different with the social model
which emphasizes the disable people should be the subject of law and independent to
participate in society. Eventually, The UN shows the commitment to strengthen the
rights of disable with declare the UN Standard Rules on the Equalization on the
Equalization of Opportunities for Persons with Disabilities (1993).
The standard rules are more progressive to ensure full participation and
equalization of opportunities for disable people. This instrument realizes the primary
obstacles in the fight for equality is the prejudices for the disable people. According to
the medical model, the disable person is individuals who have incapacity to perform in
any conditions. Therefore, The Standard Rules create and establish the framework to
eliminate the barriers to participate in the society. In addition, the Standard Rules
targeted at both the individual and the environment (Dimitris Michailakis, 1999).
26
27

28

29

World
Health
Organization,
‘World
Report
on
Disability
2011’,(2011)online:http://www.who.int/disabilities/world_report/2011/report.pdf?ua=1 , p. 4.
Article 1 of the Declaration of Human rights mentioned that “all humans being are born free and
equal in dignity and rights. They are endowed with reason and conscience and should act toward one
another in a spirit of brotherhood”.
Julie Ringelheim, Minority Rights in a Time of Multiculturalism-the Evolving Scope of the Framework
Convention on the Protection of National Minorities, (Human Rights Law Review 10:1, published by
Oxford University Press, 2010), p. 105.
C.G.K. Atkins, A Cripple at a Rich Man’s Gate: A Comparison of Disability Employment and AntiDiscrimination Law in the United States and Canada , (Canadian Journal of Law and Society Volume
21 No.2, 2006), p. 90.

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The Role of Indonesian CSOs

Although the UN Member States morally recognized this instrument, the Standard
Rules was not completely binding. The characteristic of this Rules is less enforcing than
the ratification of a Convention - there is no compliance enforcement, while the
Member States fails to implement the Rules into their legal framework.30 Therefore, the
character of the Standard Rules depends on the strong moral and political commitment
of the Member States.
In order to fulfill the necessity of the rights for disable people, the UN enacted the
Convention on the Rights of Persons with Disabilities (CRPD) in 2006. However, this
convention is a form of the summit of the new perspective of diffability. This convention
generally considers the human rights perspective for the disable people, instead of
charity based. In the beginning, the idea to create the CRPD was initiated by General
Assembly Resolution in 19 December 2001 – the General Assembly Resolution also
initiated to create of the Ad Hoc Committee for this issue. Thereafter, the Ad Hoc
Committee assigned the CRPD after eight times discussion during July 2002 until
December 2006.31
This convention ensures and promotes the fundamental human rights and
freedoms for all disabled persons without discrimination of any kind. Simultaneously,
this Convention urges the Member States to ratify and implement all appropriate
legislative, administrative and other measures, as well as to take into account the
protection and promotion of the human rights of disable people in all policies and
programs.32
This convention has general principles shall be:33
a. Respect for inherent dignity, individual autonomy including the freedom to make
one’s own choices, and independence of persons
b. Non-discrimination
c. Full and effective participation and inclusion in society
d. Respect for difference and acceptance of person with disabilities
e. Equality of opportunity
f. Accessibility
g. Equality between men and women
h. Respect for the evolving capacities of children with disabilities and respect for the
right of children with disabilities to preserve their identities.

30

31

DimitrisMichailakis, “the Standard Rules: A Weak Instrument and a Strong Commitment in Melinda
Jones & Lee Ann Basser Marks, Disability, Divers-ability, and Legal Change, (The Hague:
MartinusNijhoff Publishers, 1999), p. 122.
FajriNursyamsi, et al, KerangkaHukumDisabilitas di Indonesia: Indonesia Ramah Disabiitas

(Translation: The Legal Framework of Disability in Indonesia: Indonesia is Friendly for Disabiliity),
32
33

(Jakarta: PSHK, 2015), p. 61.
The Convention on the Rights of Persons with Disabilities, article 4.
Ibid, Article 3.

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Dio Ashar Wicaksana

IV. THE ROLE OF INDONESIAN CSOS TO ESTABLISHED THE NEW
DISABILITY LAW
Basically, civil society is recognized and dominated by the Non-Government
Organization (NGO). Recently, however, civil society is encompassing any actors and
entities with a wide range of goals, structures, membership, and geographical coverage,
includes; NGOs, professional associations, charitable organizations, indigenous group,
faith communities, labour unions and labour organizations, grassroots associations, as
well as foundations.34
Furthermore, the roles of CSOs are changing at this time. 35 The increasing global
and hyper connected and multi-stakeholders’ world influence source of social capital of
CSOs world.36 Presently, the networked CSO groups are increasingly engaged in
partnership with the governments and the private sectors - whilst the most of CSOs
might have seen as being opposition with another stakeholder, especially the
government and the private sectors in 20 years ago.37 Therefore, World Economic
Forum (2013) identified roles of CSO encompass;
• Watchdog; holding institutions to account, promoting transparency and
accountability
• Advocate: raising awareness of societal issues, challenge and advocating for change
• Service provider: delivering societal needs, including education, health, food and
security
• Expert: bringing unique knowledge and experience to shape policy and strategy, and
identifying for giving solutions
• Capacity builder: Providing education, training and others
• Incubator: developing solutions that may require a long gestation or payback period
• Representative: giving power to the voice of the marginalized or under-represented
• Citizenship champion: encouraging citizen engagement and supporting the rights of
citizens
• Solidarity supporter: promoting fundamental and universal values
• Definer of standards: creating norms that shape market and state activity
In Indonesia, there are international, national, and the disabled persons’
organizations (DPO) exist in Indonesia, mainly in Jakarta, Yogyakarta and Solo. DPOs
basically followed a traditional model of advocacy, including differing views about
national disability strategy, and co-opting by the government officials38. In disabled
context, however, some people misunderstand and false recognition with physical and
34

35
36
37
38

World
Economic
Forum,
‘The
Future
Role
of
Civil
Society’,
(2014),
online:http://www3.weforum.org/docs/WEF_FutureRoleCivilSociety_Report_2013.pdf accessed at 19
July 2017, p. 8.
Ibid, p. 9.

Ibid
Ibid, p. 7.
Stephen Meyers, Valerie Karr and Victor Pineda, Youth with Disabilities in Law and Civil Society:
Exclusion and Inclusion in Public Policy and NGO Networks in Cambodia and Indonesia, published
online on https://disabilityglobalsouth.files.wordpress.com/2012/06/dgs-01-01-02.pdf accessed at 20 July
2017, p. 22.

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The Role of Indonesian CSOs

mental condition of disabled. There is still claim disabled people considered as
“unhealthy” person. Indonesian activists recently try to challenge the old conception of
disability. Following a theory of contestation, this theory basically observes the effects of
social practice, by making normative claim.39 In the social model which is embedded in
United Nations Convention on the Rights Persons with Disabilities (UNCRPD),
however, focuses on the inclusion and ensure that the DPOs should be participate in
policy decisions.
Therefore, the currently Indonesian activist tried to challenge the new perspective
by recognition in the normative discourse. The recognition of disabled as equal person
is important, because politics of equal recognition is a part of democracy nowadays,
which returned in the form of demands for the equal status.40 The increasing awareness
may help to reconstruct diffability to diversity issues, rather than being frequently
ignored.41 According to the Indonesian Constitutional Court’s decision42, it is
mentioned that state should guarantee the constitutional rights, particularly the people
who have experienced to be discriminated, excluded, restricted, and marginalized.
Those experiences either formally or informally derived by the inequality of structural
and socio-cultural within private or public sphere. The state should create the
affirmative action to open the equal opportunities for them in order to actively
participated in public sphere.
This perspective has been dominant approach until Indonesia ratified the CPRD in
2011. It means that Indonesia shows the commitment to develop a legal framework for
diffablity people according to the values, principal, and perspective from the CRPD.
However, this ratification was not successfully implementing in the criminal justice
process. In the Indonesian criminal justice system, the disable victim usually difficult to
give their testimony to the investigator, because they have difficulties to communicate
with the others. The investigator, however, was not trying to assess the needs of the
victims, but they prefer to stop the process of investigation (Pusham UII, 2015). In
addition, MaPPI-FHUI also found that most of disable have not legal aid during the trial
process (2016).43 It was happened at that time when disable people recognized as
impairment – thus, the general perspective was located disable people in inequality
position with non-disable persons.
The problems that Indonesian government has not tried to amend the Act of
Impairment People – the government naturally consider the implementation already
finished when they have successfully ratified the convention. Nevertheless, the cultural
of society and officials have not changed to recognized disable as the equal people.
However, law has function to transform social norms as well. Marie Mercat-Bruns think
39

40
41
42
43

Antje Wiener, ‘A Theory of Contestation – A Concise Summary of its Argument and Concepts’,
(Polity Volume 49, Number 1, January 2017), published online January 5, 2017
http://www.journals.uchicago.edu/doi/10.1086/690100.
Charles Taylor, Multiculturalism (Examining the Politics of Recognition), (New Jersey: Princeton
University, 1994), p. 27.
Paul T. Jaeger & Cynthia Ann Bowman, supranote 7, p. 103.
Indonesian Constitutional Court Decision Number 143/PUU-VII/2009, p. 68.
This statement according to the data of MaPPI-FHUI, they found there are 41% cases without legal aid
between 2011-2015.

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Dio Ashar Wicaksana

that law simply as the reflection of the norms of culture. In this sense, law could take a
role as a way of changing the culture by which persons act, for example by the
lawmaker.44
In order to reconstruct that perspective, the Civil Society Organizations (CSO) tried
to establish the working group to advocate this issues into legislation discourse. The role
of Indonesian activist to promote social model is very important. Activists who
collaborated in Civil Society Organization (CSO) play a vital role in the politics of
international society movement – CSOs can help to create a norm and development
program.45 They can create a “non-official law” which is aimed at supplement of
expressing the needs of individuals and groups more directly and more generally than
official law.46
Lesson learned by International experiences – In 1997, international communities
reiterated Art. 1 para. 2 of the Protocol Additional to the 1949 Geneva Convention on
War Victims – In this case, the state has pressured by the demands of the people with
advanced political movements and enlightened public opinion47. This demand was
played-well by society and CSOs – The essential learned by this case is CSO, and
national political movement have strong influenced to contribute the realization of
human rights principle when the Government perceived failure to achieve these
values.48
The Indonesian working group basically response and push the government to
adopt the CRPD into the Indonesian diffability law. They have a crucial role to engage
with the legislation body in the course of legislation process – Fajri Nursamsyi (2017)
explained that Indonesian CSOs have successfully created the research paper regarding
social model perspective, and lobbied with the legislative assembly.49 The Indonesian
disable activist successfully shares the experiences regarding the difficulties to
participate in daily activities by themselves.
They mentioned that disable is a part of human diversity, but impairment is the
only of generalization to the people who have a deficiency in some conditions. In
addition, they also mentioned that all human potential to be impairment – for instance,
the elder people possibly difficult to walk because their physical condition is not as
strong as previously. In addition, Indonesian activist also emphasized that everybody
should take into account the problems of social barriers to disable people - they argued
that everyone is potentially became disable. As an example, when people became
older, they will have reduction of their power or ability to do some activities. Moreover,

44
45

46

47
48
49

Marie Mercat-Bruns, supranote 17, p. 31.
Andrew Hurrell, “Power, Principles, and Prudence: Protecting Human Rights in a deeply divided
World” in Tim Dunne & Nicholas J. Wheeler, Human Rights in Global Politics, (New York:
Cambridge University Press, 1999), p. 278.
Antonio Cassese, “Progressive Transnational Promotion of Human Rights” in B.G. Ramcharan,
Human Rights (Thirty Years After the Universal Declaration), (The Hague: MartinusNijhoff
Publishers, 1979), p. 260.
Ibid,p. 251.
Ibid, p. 261.
Interview with Fajri Nursyamsi (Researcher of Center Study of Legal Policy) in 25 April 2017.

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The Role of Indonesian CSOs

people is potentially had injury in any condition. Therefore, the issue of diffability
should be important to discuss in national policy discourse.
After the demands by any parties, mainly by the disable communities and
Indonesian CSOs, the Indonesian government finally amend the new Indonesian
disability law in early 2016. This law successfully replaces the old law and reconstruct
the new concept of social model’s perspective. This model emphasized the equality
rights for disable people. In this sense, the new disability law reconstructs the different
approach rather than the previous one. Firstly, this law reconstructs the term of
impairment to be disability, it means the concept of diffability is not accordingly
emphasized on the health condition anymore, but focus onto the reconstructive of the
social barrier instead.
In order to comply the new perspective, this law fundamentally guarantees the
respectful, eliminate discrimination, fully participation, diversity, equal opportunity,
equality, accessibility, inclusivity, the protection, as well as autonomy of individual.
Furthermore, the purpose of this law is reconstructing the perception of diffability is
dependent people, and try to ensure that disable people could be independently live
and participate in the social activities. This law also essential to protect disable people in
the criminal justice process, because there is no explicit provision regarding their rights
on the previous law. In the new law, it expressly mentions their rights to the protection
of the law and access to justice – the disable people finally have a right in some issues,
which is:50
a. Equality before the law
b. Recognize as the subject of law
c. Own and inherit of the property
d. Independently control the finance, or appoint the agency
e. Obtain an accessibility in the banking and finance service
f. Obtain an accessibility in the access of justice
g. The protection of the pressure, violence, discrimination, oppression, and deprivation
h. Appoint the agency regarding the civil rights issues
i. The protection of intellectual property rights.

V. THE ROLE OF YOGYAKARTA CSOS TO IMPLEMENT THE SOCIAL
MODEL IN LAW ENFORCEMENT INSTITUTIONS
In Yogyakarta, the local CSOs has significant influence to implement social model in
legal institutions. This paper will take place in Yogyakarta (Indonesia) because there are
ongoing projects from Sigab and Indonesia Islamic University (Pusham UII) to increase
understanding for the government on disabled people.51 Sigab is well-known Indonesian
Non-Governmental institution which focused to advocate and defend on disabled issues
50
51

Article 9 of the Indonesian Act Number 8/2016 regarding the Disability People.
Pusham UII developed the training for Indonesian law Officer in Yogyakarta. The training has focus
of human rights for Disabled people. And Sigab also develop some projects, such as “Inclusive
Village” to increase understanding and engage disabled community to participate in social activities.

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Dio Ashar Wicaksana

since 2003. Furthermore, Pusham UII is one of university research institution who have
expertise in human rights issues.
M. Syafi’ie (2014) mentioned there are problems in each criminal justice’s process
that problems are: (1) lack of sensitivity and understanding within Indonesian law (2)
Indonesian law officer is not progressive to handled disabled people (3) minim
accessibility within Indonesian judicial facilitation, and (4) the weakness of Indonesian
legal culture. Those problems eventually generate discrimination, as well as unfair trial
treatment for disabled people in the criminal justice system. The understanding of
disabled people is significantly to find out justice in any cases. There is assumption that
disabled people afraid and confused to give a testimony of criminal cases, because they
fear and difficult to communicate with law officer. Apparently, the law officer
misunderstands with the conception of Indonesian criminal procedure law. This law
mention that witness is the person who sees, listen, and experience the case.52 Thus, if
the disabled persons became the victim on the case, they will be had difficulties to give
a testimony, because the law officers apparently think that the law is counting the
witness as the cumulative circumstances.53 Consequently, the deaf and blind people will
be difficult for giving testimony during the criminal justice process. Thus, it is important
to eliminate obstacle during the criminal justice for the disabled people.
EkoRiyadi (2017) analyzed that there are two barriers in the Indonesian criminal
justice, such as the knowledge of the law officers and the facilitation of the judicial
institutions. Purwanti (2017) mentioned there are four problems that she faced during
her experienced, these are the content of law, the procedure of criminal process, the
accessibility, and the perspective of the law officers. Purwanti also mentioned that most
of the disable people have no bravery to tell what happens of them. Moreover, they
have more difficulties access to communicate with others people. The disabled people
still difficult to have an accessibility as same as standard with the “able-bodied” people.
Generally, there are misunderstanding between the communication of disabled
people and law officer – in some cases, the law officers did not process the cases
because they were apparently difficult to reconstruct cases which involved disabled
people. The main reason is difficult to have a well-communicate with disabled people,
especially disabled who have deficiency in mental ability.54 Therefore, the
understanding of the disable issues is really important for handling the disable people in
the criminal process.
However, the law officers apparently have difficulties to apply it to the practice
area. Muhammad Buchary Kurniata Tampubolon (Ata) believed the mindset
perspective of the judges is different when it is regarding diffability issues. They
probably will use the mindset as the non-disable people – for example, in the sexual
violence cases, the judges usually ask “why do not you fight back?” or “why do not you
run away or scream?”.55 In this sense, those question are not pertinent to their status as a
52
53
54
55

Indonesian Criminal Procedure Law (KUHAP), article 1 point (26).
EkoRiyadi, et al, AksesibilitasPeradilanbagiPenyandangDisabilitas (Translation: The Judicial
Accessibility for the Disabled People), (Yogyakarta: Pusham UII, 2015), p. 5.
M. Syafi’ie, Purwanti, Mahrus Ali, PotretDifabelBerhadapandenganHukum Negara (translation:
Portrait Disabled in Dealing with National Law) ¸(Sleman: Sigab, 2014), p. 20.
Interview with Kurniata in 13 July 2017 in Wonosari, Yogyakarta.

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The Role of Indonesian CSOs

disable person, whereas it will be problem if the victim is a disabled person. If the
disable cannot speak or walks, indeed, they will have difficulties to run away, scream, or
fight back. Thus, the basic problem is that judges do not have adequate capacity to
understand a disabled persons’ perspective. Moreover, Indonesian legal policy does not
have measures that are directed to the powerlessness based on the disables condition.
Consequently, it is dangerous as judges consider powerlessness as a weakness in the
face of the aggression – at the expense of the disabled person.
Purwanti believed there is no transformation even though the new disability was
enactment in the early 2016.56 The problems of disable issues is culturally
institutionalized since a long time ago. In this sense, Ata argued the new disability law is
very new. The implementation of this law is not going well because the judicial
institution has not issued into the internal regulation. It will be relating with the
budgetary for the reconstructive the facilitation and training for the law officers as well
as the staff of judicial institutions. In the criminal procedure, the new disability has no
big impact because the provision regarding the procedure law still using the Indonesian
criminal procedure law which is this law is not including the diffability perspective.
In Yogyakarta, however, the roles CSOs has specific role in the policymaking and
the implementation process, when the formal institutions rarely take an action for
improving the reform of policy and capacity. Eko Riyadi as the director of Pusham UII
initiated to engage with the legal institutions. In the last year, he decided to meet the
chief of Wonosari57 District Court (Ata) as the piloting projects. After the discussion, he
thinks that Ata potentially received the idea to improve the accessibility for the disabled
people. Eko Riyadi generally identified that the law officers have no capacity and
knowledge to handle the cases which involve with the disable people. He mentioned
the knowledge encompass the ability to understand either the substance of law or
technically to interact and giving service to the disable people. Hence, he believed the
importance for increasing the capacity to all of officers in the district court. Technically,
Eko Riyadi made a deal with Ata for giving training to all of the judges in the Wonosari
district court.
Furthermore, the second problem is the less facilitation of the district court. Ata
knowingly realized that the structure of the court’s building is inaccessible for the
disabled people. As examples, the court’s building has no ramp, hand rail, guiding
block, special toilet for the disable people, and the braille words. However, Ata said
that he has no authority to modify the building and the facilitation – because that
authority is on the hand of the Indonesian Supreme Court. In this sense, the cultural
bureaucracy of Indonesian judicial institutions is centralistic. Thus, Mr. Eko tried to
invite Ata in the discussion meeting which possibly invite the leaders of the supreme
court as well. In the first meeting, Mr. Eko invite to Ata in the Focus Group Discussion
(FGD) for developing curriculum training module regarding the fair trial for the disable
people in the September 2016. During the FGD, Ata has a well-interaction with the
disable people, another judge, as well as the supreme court judges.58
56
57
58

Interview with Purwanti in 11 July 2017 in Yogyakarta.
Wonosari one of district of Yogyakarta Special Region.
Interview with Eko Riyadi in 11 July 2017 in Yogyakarta

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Dio Ashar Wicaksana

This meeting successfully improves the perspective of Ata – he simultaneously
realizes the spirit of the DPOs and the importance of this issue for the disable people. In
the following meeting, Ata directly mentioned that he will make a commitment to
establish the accessibility for the disable people in the Wonosari District Court. He also
agrees to make Memorandum of Understanding (MoU) between Wonosari District
Court and Pusham UII. During the project, Pusham UII have responsibilities for giving
advice regarding the structure of the building. Moreover, Pusham UII also work
together with Sigab and PLJ for creating video with the sign language and providing
braille guideline in the information front desk office.
In the criminal procedure law, however, the reform of the diffability issues is not
significant change. Probably, there only provision regarding the translator for the people
who cannot speak and listen. Yet, for some reason, the Indonesian criminal code is hard
to cover all of the accessibility for the disabled people – because the disabled people
are not only the mute and deaf people, there are any different abilities among the
disabled people. Kristanti mentioned there is no specific internal regulation and
budgetary regarding to handle the disable people in the prosecution institutions.
Therefore, it is important for making the implementation of the new disability law in the
internal regulation of the respective legal institutions.
Nevertheless, this problem is not always depending on the willingness of the formal
institution. The CSOs can take a role as the paralegal for the disable people.For
example, Purwanti (2017) shared her experience when she gave assistance to the disable
people in the criminal procedure process. She told that her organization focuses on
giving legal aid assistance for the disable people, particularly in the trial process. She
realizes that the disable people are difficult to communicate with others, therefore she
will try to find out the lawyer, the translator, and the medical expert. She also acts to
collect the evidence for defending the disable people during the criminal process. In
one case, her organization successfully convince the judge regarding the mental
diffability – then, the judge takes her arguments into the judicial decision.
In this sense, Purwanti argued that the diffability issues are not popular issues as
general. She tried to compare with the child case, the social movement and the CSOs
are really active to pressure the government. Thus, the legal institution has strong
willingness to implement in the internal policy. In the diffability issues, she thinks that
only the DPOs morally understand the importance of this issues, therefore it is
important to engage multi stakeholder for making collective action to participate in any
policy decisions regarding the disable issues.

VI. CONCLUSION
Disabled people as part of minority group have struggled to get recognition for equal
rights. The Indonesia Government already reconstructed the terms of impairment for
disability in the new disability law which was enacted in early 2016. The disabled
activists also reject the medical intervention as the main approach within Indonesian
legal policy, they believe this approach tends to generate bad stereotypes that disable
are weak and an incapable group for participating equally in society. Therefore, they try

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The Role of Indonesian CSOs

to promote the social model into the normative legal context. Even though Indonesian
government already ratified the CRPD into national legal policy, the disable activist
thinks it is not enough to reconstruct the perspective of society as well as the officials.
In accessibility, however, the main problem is relating with the content of law, the
procedure of criminal process, the accessibility, and the perspective of the law officers.
Purwanti believed there is no significant transformation, even though the new disability
was enactment in the early 2016. In this sense, Kurniata argued the new disability law is
very new, but the cultural perspective of diffability is institutionalized for some time.
The implementation of this law is not going well because the judicial institution has not
issued it in the internal regulation. It relates with the budget for reconstructing the
facilitation and providing training for law officers as well as the staff of judicial
institutions. In the criminal procedure, the new disability does not have impact because
the provision regarding the procedure law still using the Indonesian criminal procedure
law which is this law that is not included in the diffability perspective – especially for the
mental diffability.
The process of dialogue between government and disabled communities should
start to open – because affirmative action tools have proved to be much more effective
in actually bringing a critical mass of people representing minorities.59 For example, the
experienced of the Indonesian CSOs when they tried advocacte the new disability law
with using the substantive of CRPD. Moreover, the disable activist collaborated as the
working group for advocating this issue into the legislative sphere. Eventually, the
disable CSOs successfully give research and pressure to Indonesian legislative in order
to amend the disability law in the previous year. It is important to change the law for
following the needs of society, instead of people should follow the rules which clearly
discriminate the human community, including those of disabled groups.
According to the success story of Pusham UII, there are two important things as the
lesson learned for implementing national policy in the local level. Firstly, the dialogue
process is important for sharing idea together. The process dialogue between Pusham
UII and the chief of Wonosari District Court generate the consciousness of the diffability
issues for Mr. Ata. Ata consciously understand that equal interaction and accessibility is
really crucial. Therefore, it is important to change the law for following the needs of
humanity, instead of people should follow the rules which is clearly discriminate as the
human community, including the disable group.
Secondly, it is important for getting official approval for the diffability issues.
Although, there is success story of Wonosari District Court, people should realize that
the success story only happen in one district court. The diffability issues should be
spreading into all of judicial institutions. According to the Ata’s story, he tried to
implement the social model after meeting with some key persons in the Indonesian
Supreme Court. Even, there is no official approval, but the moral support of the key
persons has big influence to Mr. Ata for implementing the improvement facilitation in
his district court. Therefore, the cultural bureaucracy of Indonesian depends on the
central institutions. Kristanti also thinks that it will be better if the legal institution
regulates the technical guideline into their internal regulation.
59

Ibid, p. 60.

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Dio Ashar Wicaksana

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Dio Ashar Wicaksana studied Bachelor of Law at Faculty of Law, University Indonesia,
and then took the master degree in sociology of law at Oñati International Institute
Sociology of Law. He worked as researcher at Indonesian Judicial Monitoring Society,
Faculty of Law University of Indonesia (MaPPI-FHUI) since 2012 until present. He is

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Dio Ashar Wicaksana

researcher who has expertise in judicial reform and attorney general office or
prosecutor reform. He was also actively involved in NGO’s coalition, such as court
monitoring coalition that consist of Indonesia Corruption Watch (ICW), Indonesia
Legal Aid Foundation (YLBHI), Center of Law and Policy Study (PSHK). He was
involved in many advocacies for judicial reform issues, as well as fair trial treatment with
Indonesia legal system.