View of Human Rights Guarantees for People with Mental Disorders in The Indonesian Constitution

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Harfika Nur Aprilia, Ade Fartini,

Human Rights Guarantees for People with Mental Disorders in The Indonesian Constitution

Harfika Nur Aprilia ¹, Ade Fartini ²

Universitas Islam Negeri Sultan Maulana Hasanuddin Banten, Indonesia ^1,2 e-mail: [email protected]

Abstract

Human rights are rights that belong to everyone regardless of gender, condition, race or religion. The Indonesian Constitution ensure the human rights of its citizens, including people with mental disorders.

People who be distressed from mental disorders (also called ODGJ) are people who are in an unhealthy mental state, so they get emotional easily because they cannot control this. Inside on article, author will explain the guarantee of human rights for people with mental disorders accordance to Indonesian constitution. The method applied in this written work is a normative system with a qualitative scheme.

The author collected data from various journals, articles, books and reports discussing the position of ODGJ in the Indonesian constitution. The proceeds of this paperwork are that the Indonesian constitution guarantees human rights for ODGJ, but in reality the human rights of ODGJ are considered vulnerable to being taken away or threatened by other people. Even though the Indonesian constitution clearly instructs all people to tribute the human rights of other people, this also applies to people with mental disorders. Therefore, the existence of the constitution and other legal regulations that discuss human rights for people with mental disorders is doubtful about their actual implementation because these facts are not in suitable with what is appointed in the constitution and other legal regulations.

Keywords: human rights; constitution; Indonesia; law Abstrak

Hak asasi manusia merupakan hak yang dipegang oleh semua insan tak menyeleksi gender, keadaan, ras, maupun agama. Konstitusi Indonesia telah menjamin hak asasi manusia warga negaranya, termasuk kelompok dengan gangguan jiwa. Kelompok yang menderita gangguan jiwa (dipanggil juga ODGJ) ialah orang yang berada dalam keadaan mental yang tidak sehat, sehingga mudah emosi karena dirinya tidak bisa mengontrol hal tersebut. Pada karya tulis ini, penulis akan menerangkan jaminan hak asasi manusia atas orang dengan gangguan jiwa dalam konstitusi Indonesia. Metode yang diaplikasikan dalam karya tulis yang dibuat yakni sistem normatif dengan skema kualitatif. Penulis mengumpulkan data dari berbagai jurnal, artikel, buku, serta laporan-laporan yang membahas tentang kedudukan ODGJ dalam konstitusi Indonesia. Hasil dari penelitian ini yakni konstitusi Indonesia menjamin hak asasi manusia terhadap ODGJ, namun dalam realitasnya hak asasi manusia terhadap ODGJ dinilai rentan diambil atau diancam oleh orang lain. Padahal dengan jelas konstitusi Indonesia menyuruh seluruh orang untuk menghormati hak asasi manusia yang dipegang orang lain, maka hal tersebut berlaku pula untuk orang dengan gangguan jiwa. Maka, ke-eksistensian dari konstitusi dan peraturan hukum-hukum lainnya yang membahas tentang hak asasi manusia terhadap orang dengan gangguan jiwa diragukan aktualisasi pengimplementasiannya sebab kenyataan tersebut tidak sesuai dengan yang tercantum di konstitusi dan peraturan hukum lainnya.

Kata Kunci: hak asasi manusia; konstitusi; Indonesia; hukum

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A. Introduction

Human Rights based on the word Miriam Budiardjo are rights held by humans that are obtained and held along with their birth or existence in the community¹. Human rights in Indonesia are regulated by Law No. 39 of 1999 which in article 1 explains that "Human Rights are a set of rights inherent in the essence and existence of humans like creatures of God Almighty and include His gifts that should be glorified, exalted and guarded by the state, Government, law, and each individual for the purity and maintenance of human status and position”². Human rights are considered an important instrument in social life, especially in the social aspect. This is because human rights are one of the areas that become the basis for a person to treat others well, without discrimination about anything. Human rights are limited in their practice, the limit comes from the human rights of others. That is, our human rights in their implementation are dispelled by the human rights of others. Therefore, when exercising the rights we have, we must not take away the rights of others until losses arise to that person.

The Indonesian Constitution is the 1945 Constitution has arranged the concept of human rights contained in articles 28A to 28 J. Then, human rights were strengthened by the emergence of Law No. 39 of 1999 concerning Human Rights and Law No. 26 of 2000 concerning Human Rights Courts. Human rights are also upheld in international law, this was marked by the birth of the 1948 UN charter named the Universal Declaration of Human Rights through General Assembly Resolution 217 A (III) on December 10, 1948³. This Charter must be upheld and implemented by UN member states, including Indonesia. Therefore, Indonesia affirms it in consideration of Law No. 39 of 1999.

Human rights are owned by all humans indiscriminately, they are linked to every human being without exception, including people with mental disorders. People with mental disorders are people who have poor mental health for a reason or event experienced by the person. This disorder is characterized by disruption of the process of thinking and disordered emotions that affect behavior that becomes unnatural⁴. Human rights for people with mental disorders are often doubtful, even though these rights are contained in Law No. 39 of 1999 article 41 paragraph (2) and article 42. Article 41 paragraph (2) explains that every person with disabilities, elderly persons, children, and pregnant women, has the right to special relief and

1 YiAiZeini, “Konsepi Haki Asasii Manusiai Dalami Islami,” Veritasi eti Justitiai (Bandungi:Fakultasi

Hukumi, Universitasi Katoliki Parahyangani, 2015)i,

https://journal.unpar.ac.id/index.php/veritas/article/view/1418i.

2 Komnasi HAMi, “Undang-Undangi No . 39 Tahun 1999,” Undang-Undangi Republiki Indonesiai Nomori 39 Tahun 1999 tentangi Haki Asasii Manusiai § (1999).i

3 Majelisi Umumi PBB, “Deklarasii Universali Hak-Haki Asasii Manusiai,” 4i Indonesiani Journali ofi Internationali Lawi § (1948)i.

4 Ade Apriliana dan Hana Nafiah, “Stigmai Masyarakati Terhadapi Gangguani Jiwai:

LiteratureiReviewi,” Prosidingi Seminari Nasionali Kesehatani 1 (2021)i: 207–16i, https://doi.org/10.48144/prosiding.v1i.658i.

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disclosure. Then article 42 explains that every citizen who is in his old age, suffering from abnormal physical and/or abnormal mental health has the right to receive special care, training, education and assistance to the state budget, in order to live a life worthy of his human status, foster feelings of courage, and the skills to participate in the life of society, nation and state.

People with mental disorders can also be called people with mental disabilities, so it is clear that people with mental disorders have the right to get care from the state by getting treatment to special assistance to ensure a decent life, like normal human beings. In this regard, the state is obliged to contribute to helping people with mental disorders to have a life like human beings in general, with special assistance at state expense. Although it is considered impossible to guarantee their welfare, at least the state helps the cost of treatment for people with mental disorders so that the mentality of the person can recover for the sake of ensuring the health of the people. Indeed, there are many cases of people with mental disorders who do not want to get treatment either because of family factors that do not exist or because of inadequate family economic factors so that people with mental disorders are left alone until sometimes the person slaps on the street. This should be given more attention by the local government and the central government, because people with mental disorders are also one of the people of Indonesia.

Even with mental retardation, previously they were people with normal mental conditions, therefore they still deserve treatment like normal human beings.

In essence, people with mental disorders are still human beings, they need more attention than the state and society itself. The issue that arises at this moment is, do people with mental disorders have similarities in the eyes of the law? Seeing the reality from how the treatment and stigma of society is very clear to look at it with one eye, so that human rights for people with mental disorders are questionable. The existence of the law itself is irrelevant to its reality. The answer to this will be examined through the sources that the author collects then the problem will be related to the Indonesian constitution, namely the Constitution of the Republic of Indonesia in 1945 and other important legal instruments related to human rights in Indonesia. Then the result that will be obtained is whether the Indonesian constitution guarantees human rights to people with mental disorders or not, which will be seen through the lens of reality.

B. Literature Review

Human Rights based on the word Miriam Budiardjo are rights held by humans that are obtained and held along with their birth or existence in the community. John Locke in his work explains that human rights are rights that come from God's grace to humans as rights that come naturally, anyone cannot revoke them, and their nature is very fundamental. Human rights in Indonesia are regulated by Law No. 39 of 1999 which in article 1 explains that "Human Rights are a set of rights inherent in the essence and existence of man as a creature of God Almighty

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and is His gift that should be glorified, exalted and guarded by the state, Government, law, and each individual for the purity and maintenance of human dignity and dignity".

According to Law No. 18 of 2014 concerning mental health, mental health is a situation when individuals can grow physically, mentally, spiritually, and socially as a result of which the person knows his own abilities, can eradicate oppression, work usefully, and is adept at presenting participation to his community. In Law No. 18 of 2014, it is explained that individuals suffering from mental disorders are people who suffer from abnormalities in reason, actions, and emotions that manifest in the form of a set of indications and / or substantial and significant behavioral transitions, and can create difficulties and obstacles in applying individual functions as humans. Law No. 39 of 1999 article 42 explains that every citizen who is of old age, has physical abnormalities, and mental abnormalities has the right to receive special care, education, training and services under the state budget in order to live a life worthy of human dignity.

C. Method

The research method is a procedure in obtaining sources for writing papers. The author uses a normative type method with a qualitative approach. The author collects sources through journals, books, and articles or also called literature materials taken both through repositories and journal houses whose discussions are not far from people with mental disorders in the Indonesian constitution. The sources or data obtained by the author become the basis for the arguments or opinions that the author pours in this paper.

This paper intends to understand the meaning of Human Rights and how the position of human rights for people with mental disorders (ODGJ) is in line with the Indonesian constitution and what the reality is. This is studied through case studies in several journals that are used as literature sources, so that the reality is clear. Then the author will relate this reality to the Indonesian constitution or other legal tools that discuss human rights in Indonesia. From the leading results, it will be concluded about whether the state guarantees the human rights of people with mental disorders in its constitution or not. This paper is expected to be the fruit of public awareness so that it no longer underestimates people with mental disorders, and the state that hopefully will pay more attention to people with mental disorders and realize its goals stated in Law No. 39 of 1999 to help people with mental disorders by enduring a life that is worthy of their human honor.

D. Result and Discussion Human Rights

John Locke in his work entitled The Second Treatise of Civil Government and a Letter Concerning Toleration (2002) explains that human rights are rights derived from God's gift to

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humans as rights that come naturally, anyone cannot revoke them, and their nature is very fundamental⁵. Globally, human rights can be understood as rights given by the creator to humans that are absolute, no single individual can revoke them and must be upheld, glorified, and guaranteed by the state. Conceptually, human rights are divided into two, namely civil and political rights (political rights) and economic, social, and cultural rights (economic rights).

This is based on the existence of an international covenant that was born as a form of the division of human rights contained in the UN declaration in 1948 (Universal Declaration of Human Rights). Human rights in the 1948 UN declaration were proclaimed as a form of global support for success for all nations and states in guaranteeing the human rights of their people.

Therefore, when the establishment of Law No. 39 of 1999 concerning Human Rights was based on the 1948 UN declaration and two international covenants that played a decisive role in ensuring the human rights of a country in guaranteeing the human rights of its people from civil, political, economic, social, and cultural factors.

In general, human rights are rights that are intrinsic in human beings, in the absence of which humans cannot live as human beings. Because of this intrinsic nature, human rights fundamentally explain that in principle human beings have degrees regardless of gender, race, religion, color, age, language, nation, all people have the right to enjoy and exercise these rights without fear of threats coming from outside. Some opinions on the definition of human rights include:

1. Human rights are a gift from God;

2. Human rights are acquired by man from his birth;

3. Human rights are rights inherent in the human person, in the absence of which, man cannot live a decent life;

4. Human rights are a set of rights that are inherent to the human being as God's being.⁶ The State of the Republic of Indonesia respects and exalts human rights as well as the independence of human legality as pure rights that are inherent and not restricted from humans, which must be exalted, maintained and strengthened for the sake of intensifying the degree of humanity, welfare, harmony, and intelligence and justice (Law No. 39 of 1999 article 2). This can be interpreted that the Indonesian state has valued and upheld human rights which are human dignity in their lives. If there is a violation involving human rights, then the violation is categorized as a gross violation. In this case, the state is needed as a protector of the people by ensuring the welfare and security of the people when exercising their rights. Therefore, in its implementation, human rights require the role of the state and the people which are the main

5 Tiai Laherai dani Diniei Anggraenii Dewii, “Haki Asasii Manusiai : PentingnyaiPelaksanaaniDaniPenegakaniHaki AsasiiManusiaiDiiIndonesiaiSaatiInii,” JournaliCivicsi &

SocialiStudiesi 5i, noi. 1 (2021): 90–97i, https://doi.org/10.31980/civicos.v5i1.1055i.

6 Zeini, “Konsepi Haki Asasii Manusiai Dalami Islami.”

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structures of social life. The state has the right to ensure the security and welfare of its people, and the people have the right to exercise their rights. In exercising these rights, one person must not interfere with the rights of others, so that others can also fulfill their rights and do not feel their rights are deprived.

Human Rights of People with Mental Disorders in the Indonesian Constitution

Mental health is a situation when a person can manage and develop physically and mentally well. According to Law No. 18 of 2014 concerning mental health, mental health is a situation when individuals can grow physically, mentally, spiritually, and socially as a result of which the person knows his own abilities, can eradicate oppression, work usefully, and is adept at presenting participation to his community⁷. Mental fitness has an important role in individuals both for social life and personal life. In essence, mental health is the basis of all actions done by humans, because through mental health humans can think well so that they can adapt to the surrounding circumstances. In individual life, mental health affects a person in managing mental pressure so that if the pressure can be managed properly, then mental and physical health is maintained. But if a person's soul is shaken, then not given more attention, then the body can also be shaken. Therefore, there is an expression that says that in a healthy body, there is a strong soul.

People with mental disorders or also called ODGJ are people who have poor mental health for a reason or event experienced by the person. This disorder is characterized by disruption of the process of thinking and disordered emotions that affect behavior that becomes unnatural⁸. Furthermore, in Law No. 18 of 2014, it is explained that individuals suffering from mental disorders are people who suffer from abnormalities in reason, actions, and emotions that manifest in the form of a set of indications and / or substantial and significant behavioral transitions, and can create difficulties and obstacles in applying individual functions as humans⁹. Disorders in the psyche are clearly very disturbing individuals in carrying out their daily activities both in social life and individual life. Someone who has a psychiatric disorder needs treatment as soon as possible so that the disorder does not continue and can be cured.

Mental disorders can be caused by trauma or mental pressure that can shake a person's psyche, resulting in stress which is generally an early symptom of psychiatric disorders. If someone cannot control the stress, then psychiatric disorders will continue to grow to make people who are stressed turn into depression and then crazy. However, if a person can control the stress, then he can still return to being a normal human being and return to having a healthy soul. It is

7 UUiRIi, “Undang-Undangi Republiki Indonesiai Nomori 18i Tahuni 2014i TentangiKesehataniJiwai,”

6 Angewandtei Chemiei Internationali Editioni § (2014)i.

8 Aprilianai dani Nafiahi, “Stigmai Masyarakati Terhadapi Gangguani Jiwai: Literaturei Reviewi.”

9 UUi RIi, Undang-Undangi Republiki Indonesiai Nomori18i Tahuni 2014i Tentangi Kesehatani Jiwa.i

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not easy for someone to control psychiatric disorders alone, therefore expert help is needed to cure the disease. The group of psychiatric disorders studied in Basic Health Research (Riskesdas) data led by the Health Research and Development Agency, Ministry of Health of the Republic of Indonesia in 2018 grouped the categories of mental disorders into mental emotional disorders (GME), depression, and psychosis &; schizophrenia. In 2018, Indonesia had 6.1% of the population aged over 15 years experiencing depression. Meanwhile, those who experience mental emotional disorders are noted that Indonesia has a percentage of 9.8%. This figure is not a small number because in 2013 Indonesia was recorded to have a percentage of 6% of its people who experienced mental emotional disorders. The data was taken from national research conducted by Riskesdas¹⁰.

Indonesia has a constitution known as the 1945 Constitution, which is the basis of all legal laws in Indonesia. In the second amendment to the 1945 Constitution, there is a chapter that discusses human rights, namely Chapter XA which has 10 articles, namely articles 28 A to article 28 J¹¹. Article 28 A affirms that once an individual has the right to live and defend or fight for his life, then everyone has the right to defend his life as well as a person suffering from mental abnormalities. As stated in Law No. 18 of 2014, people with mental disorders can maintain their lives by getting mental health efforts aimed at providing opportunities for these people to achieve their rights as Indonesian citizens by getting a good quality of life, feeling a life with a stable soul, safe from fear, oppression, and obstacles that can interfere with their mental health. Then article 28 D affirms that everyone has the right to guarantee, recognition, protection, and fair legal certainty and equal treatment before the law, it also works for people with mental disorders. As affirmed in Law No. 39 of 1999 article 42 that every citizen who is of old age, has physical abnormalities, and mental abnormalities has the right to receive special care, education, training and services on the state budget in order to live a life worthy of human status. People with mental disorders can also be called people with mental disabilities, so the state is obliged to contribute to ensuring a decent life for people with mental disorders. Then in article 28 I paragraph (2) it is explained that everyone has the right to escape from discriminatory actions for any reason and has the right to get security from these discriminatory actions. Similar to normal people, people with mental disorders also have the right to be free from discriminatory actions and have the right to get protection from the state. Then article 28 J paragraph (1) says that every individual should respect the human rights of others in the life of society, nation and state. This also applies to people with mental disorders, normal people in essence still have to respect human rights for people with mental disorders, because people

10 Lefrii Mikhaeli, “TanggungiJawabiNegaraidalamiPemenuhaniHakiAtasiKesehataniJiwai Dihubungkanidengani HakiAsasiiManusiai,” JurnaliHAMi 13i, noi. 1 (2022)i: 151i, https://doi.org/10.30641/ham.2022.13.151-166i.

11 NegaraiRepublikidaniIndonesiaiTahuni, “UNDANG-UNDANGi DASAR”i (1945).

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with mental disorders are also human beings, namely beings of God Almighty. As also explained in Law No. 36 of 2009 article 148 paragraph (1) which says that people with mental disorders have equal rights as citizens¹². So this confirms that the state guarantees human rights to people with mental disorders.

Human rights to people with mental disorders usually lead to health efforts prepared by the state. In essence, all Indonesian people have the right to get health guarantees and / or services, as stated in article 28 H paragraph (1) of the 1945 Constitution which explains that every human being has the right to live a prosperous life physically and mentally, to get a place to live, and a healthy and good living environment, and the right to get health services. The right to health services for people with mental disorders is also affirmed in Law No. 36 of 2009 article 149 paragraph (1) which explains that people with mental disorders are required to achieve treatment and care in health care facilities. The category of people with mental disorders who must get treatment and treatment are people with mental disorders who are homeless, abandoned, disturb public harmony or peace, and worry about the safety of themselves or others. This responsibility must be borne by the central government, local governments and the community. The central government and local governments are tasked with stability in terms of programming mental health service facilities by involving the active capacity of the community.

Mental health efforts are activities to create mental health optimization for each individual, family, and community. Health efforts carried out by the government have four approaches, namely through promotive, preventive, curative, and rehabilitative approaches.

This has been stated and explained in Law No. 18 of 2014.

1. Promotive Approach

The promotive approach is a mental health service management activity in the form of mental health promotion. The promotive approach is carried out in the scope of families, workplace environments, educational institutions, communities, religious institutions and places of worship, health service facilities, as well as prisons and detention centers and mass media. The purpose of the promotive approach is to maintain and optimize the degree of mental health, remove stigma, discrimination, and human rights violations against people with mental disorders as a component of society, and increase public capacity awareness regarding mental health.

2. Preventive Approach

Preventive approach is an activity to prevent mental disorders. This approach is implemented in the family, institution, and community. The purpose of the preventive

12 RepublikiIndonesia,i “UUi No.i 36i Tahuni 2009i” (2009)i.

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approach is to prevent the emergence of psychiatric problems and minimize the effects of mental disorders on society.

3. Curative Approach

The curative approach is an activity of providing health services to people with mental disorders which includes accurate examination and implementation mechanisms so that the person can have their function again in community and family life. This approach is specifically carried out by general practitioners, psychologists, or psychiatric specialists to people with mental disorders. The purpose of this effort is to cure, reduce suffering, and control the symptoms of the disease.

4. Rehabilitative Approach

The rehabilitative approach is an activity carried out with the aim of restoring social function, occupational function, controlling disability, and preparing people with mental disorders to become independent individuals in society. This rehabilitative approach includes psychiatric/psychosocial rehabilitation and social rehabilitation.

These four approaches to health efforts are carried out in an integrated, comprehensive, and continuous manner between one approach and another. It also involves the state, government, and community contributions in carrying out these efforts.

In terms of implementing health efforts, the government must be responsible for facilitating the facilities and financing of treatment and treatment for people with mental disorders, especially if the person with mental disorders is a poor person. In reality, people with mental disorders mostly become homeless and abandoned, thus disputing the general public and disturbing order. They become displaced because the family does not have the cost to take the person to get proper care. The government still does not pay attention to people with mental disorders, so the number of people with mental disorders who become homeless is increasing.

In Indonesia, people with mental disorders are always underestimated. Many people call them crazy people, stressed people, edan people, and others who of course there are only bad calls for those who suffer from these psychiatric disorders. There are many regions in Indonesia that have known a practice of shackling people with mental disorders¹³. In this practice, people with mental disorders are locked in a small room tied up, their legs chained or inserted into a wooden pole. This is due to the limited number of health facilities that support the treatment of mental disorders in some remote areas. In Banten alone, in 2017 there were only 70 puskesmas that support the treatment of mental disorders out of a total of 235 puskesmas, not even half of the total number of puskesmas¹⁴.

13 Ii. Irmansyahi, Yi. Ai. Prasetyoi, dan H. Minasi, “Humani rightsi of personsi withi mentali illnessi ini Indonesiai: Morei thani legislationi isi neededi,” Internationali Journali of Mentali Healthi Systemsi 3i (2009):i 1–10i, https://doi.org/10.1186/1752-4458-3-14i.

14 Badani Perencanaani, Pembangunani Daerahi, dan Provinsii Banteni, “KAJIANi PENGEMBANGANi MODELi PENANGANANi,” 2017.

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Due to these limitations, many residents, especially in remote settlements, choose to shackle their families who have mental disorders so as not to wander and become homeless on the street, so that their families can still control it. Another reason for shackling is when people with mental disorders when released by their families even cause anxiety in the community by threatening people and always go berserk to target anyone, so that the community feels threatened by its safety. For this reason, families choose to shackle people with mental disorders, especially if the family is a lower-middle class community that cannot treat family members due to cost constraints. However, in this shackling there is often torture so that the human rights of people with mental disorders are threatened. Even though people with mental disorders must be treated with due regard to their human rights as well. It is not easy to care for while paying attention to their human rights, especially people with mental disorders suffer from temperament that cannot be controlled to threaten the lives of those around them.

Therefore, basically in the treatment of people with mental disorders it is more advisable to be served by trained or professional people, with the help of drugs prescribed by expert doctors or psychologists also the possibility of recovery percentage can increase. As explained in the Regulation of the Minister of Health No. 54 of 2017 concerning the Prevention of Shackling in People with Mental Disorders article 2 that:¹⁵;

1. People with mental disorders are guaranteed health care based on human rights

2. People with mental disorders receive the assurance to achieve the best standard of living and to weave a healthy mental life, free from the fear associated with parenting and oppression due to patronage

3. People with mental disorders should be removed from shackling by the central and local governments and other stakeholders.¹⁶

Overcoming abuse of people with mental disorders is carried out in synergy through a family approach. But back to the condition of people with mental disorders, because basically if the person threatens public order and security and then even more so the family economy is insufficient to support family members who experience mental disorders, then this is where the government's role lies which is to help treat people with mental disorders who come from the lower middle class so that later the person does not experience shackling by the family and is expected to return to normal and be part of society again.

Leaving aside some realities that are measured not in accordance with what is in the constitution and legal instruments that affirm human rights to people with mental disorders, it can be seen that the Indonesian constitution and other legal instruments that discuss human

15 Kementriani Kesehatani, “Peraturani Menterii Kesehatani No.i 54i Tahuni 2017i” (2017).

16 Anai Fathiyai Nabilai, Winnai Wahyui Permatasarii, Niqo’rumai Azizii, Faridi Pardameani Putrai Irawani dan Fatichatuli Muflichahi, “ODGJi CAREi GROUPi SEBAGAIi UPAYAi MEMBERIKANi PERLINDUNGANi HAMi BAGIi ORANGi GANGGUANi JIWAi,” Lontari Merahi 42 (2020): 383–89i.

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rights have guaranteed human rights to people with mental disorders. Similarly, there is a law that participates in affirming this, so that it is clear that the Indonesian constitution considers and upholds human rights without distinguishing anyone, including people with mental disorders and guarantees freedom from discrimination in any form. As described above, legal instruments that guarantee human rights to people with mental disorders in Indonesia are the 1945 Constitution, Law No. 39 of 1999 concerning Human Rights, Law No. 36 of 2009 concerning Health, Law No. 18 of 2014 concerning Mental Health and Minister of Health Regulation No. 54 of 2017.

The Reality of Human Rights for People with Mental Disorders

Although from a legal point of view, human rights to people with mental disorders are guaranteed by the Indonesian constitution and laws. But in reality, society underestimates people with mental disorders, so there is often discrimination that can add to the anti-sociality of people who suffer from mental disorders. The root of the problem in mental health comes from three main things, namely, first, namely public awareness that is still minimal to know mental disorders, second is the stigma that arises to offend mental disorders that grow in society, and third is the imbalance of mental health services. People with mental disorders often encounter stigma and increasingly severe discrimination from the surrounding community likened to people who have a history of medical illness. This is based on the lack of public understanding of mental disorders¹⁷. It can be seen from the events that often appear in people's lives that people with psychiatric disorders are usually expelled from their former places of contribution such as school, work, divorced by their partners, abandoned by their families so that the pressure causes increased symptoms of psychiatric disorders¹⁸. So, people who previously only had symptoms of psychiatric disorders, instead went crazy it was caused by none other than the pressure coming from around him. Some people think that people who have mental disorders are a sin because of the lack of faith embedded in their hearts, there are also those who think that mental disorders are diseases so the call "insane", "disturbed mind",

"disturbed soul" and so on¹⁹.

In reality, the laws that support human rights for people with mental disorders are also unclear in terms of implementation. Because all laws that explain mental health agree that the government's contribution to help facilitate and finance people with mental disorders who come

17 Lailyi Fitrianii, "Masungani Faced by People with Mental Problems and Mental Disorders Contrary to Laws and Regulations," Rechtsi Vindingi Mediai Coaching National Law;, 2014, 1–6.

18 Parerai Ignasiusi, Zainuddini, dan Munadhiri, “Stigmai masyarakati terhadapi penderitai gangguani jiwai (study kualitatifi di wilayahi kerjai puskesmasi kewapantei kecamatani kewapantei kabupateni sikkai provinsii NTT),” Journali Healthi Communityi Empowermenti 2, no. October (2019): 80–92.

19 Yosepi Adii Prasetyoi, “ODMKi dan Pemenuhani HAMi,” Jurnali Haki Asasii Manusiai 5i, no. 5i (2021): 31–49i, https://doi.org/10.58823/jham.v5i5.47i.

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from poor communities in fact has not been implemented optimally, even though judging from the percentage of people with mental disorders each year increases significantly. This is also not spared with Banten province which has limited facilities provided by the government to treat people with mental disorders. As stated in the final research report from the Regional Development Planning Agency of Banten Province in 2017 which recorded that in 2017 there were 5651 Banten people who experienced mental disorders and experienced shackling²⁰. Even though it is clear that shackling people who have mental disorders is illegal and is considered to usurp the human rights of people who are shackled. This is due to the government not yet finding an accurate alternative solution in a more humane recovery for society.

In facilitating mental health healing, it is still not a top priority for the government, including the low human resources for mental health services. As in Banten province which only has 70 puskesmas serving psychiatric disorders out of a total of 235 puskesmas. So far, the Banten Provincial Government has only intensified the role of existing puskesmas in tackling cases of mental illness, by supplying drugs and becoming a consultation center. There is no referral hospital and there is a hospital that fixes mental health problems in Banten province²¹. So in essence, the local government has not facilitated the handling of people with mental disorders, so there is still a high percentage of shackling carried out by people with mental disorders run by their own families.

Over time, the government must observe more people with mental disorders so that they no longer experience shackling by socializing it to the community and affirming that shackling is an illegal act that can deprive victims of their human rights. The action that can be taken by the government is to find the right way of selfcare so that it can be socialized to the community and families of people who experience mental disorders. This must be done so that there is no bad stigma in society about people with mental disorders. Because of the impact of the emergence of stigma, namely that the person will find it difficult to seek help, difficult to recover his life so that there is a sense of wanting to withdraw from community life, because the stigma of the person will get discrimination so that it will be difficult to live a life in the future, society will underestimate, be rude and less human in treating the person, and stigma will interfere with his family life²². When the outbreak of the COVID-19 virus in the world, the Indonesian government has provided a call center and application for people who want to consult about mental health, the call center is 119 and the application is called Sehatpedia which is provided by the Ministry of Health with telemedicine-based services.

So, in reality, people with mental disorders are underestimated by society. They are labeled as bad human beings, so people with mental disorders experience exclusion and

20 Perencanaani, Daerahi, dan Banteni, “KAJIANi PENGEMBANGANi MODELi PENANGANANi.”

21 Perencanaani, Daerahi, dan Banteni.

22 Ah.i Yusufi, “Stigmai Masyarakati Indonesiai tentangi Gangguani Jiwai” (Surabayai, 2017)i.

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discrimination that can trigger an increase in anti-social feelings and depression caused by the surrounding community. In addition, they are also sometimes treated badly by their families, in some cases the shackling of people with mental disorders is carried out by their own families.

In addition to being underestimated by society and treated badly by their families, people with mental disorders are also less cared for by the government. Government attention has not been fully focused on improving facilities that support treatment for psychiatric disorders. The government has also not fully provided free psychiatric treatment to the poor, so economic difficulties are the trigger for the shackling of people with mental disorders. Therefore, in reality the human rights of people with mental disorders are not fully fulfilled, even vulnerable to being deprived or threatened with loss which is done by others. Even though all humans must uphold human rights regardless of the condition or health suffered by others. That is why the law that regulates the human rights of people with mental disorders is doubtful of its existence because of incompatibility with its implementation.

E. Conclusion

According to John Locke, human rights are rights that come from God's gift to man as rights that come naturally, no one can revoke them, and their nature is fundamental. The Indonesian Constitution has honored human rights, this is contained in the second amendment to the 1945 Constitution which states that there are 10 articles that discuss specifically human rights. Similarly, legal tools that add clarity to the strengthening of human rights for all people in Indonesia. Human rights do not distinguish who has them, including people with mental disorders, as affirmed in Law No. 36 of 2009 article 148 paragraph (1) which says that people with mental disorders have equal rights as citizens. People with mental disorders or also called ODGJ are people who have poor mental health for a reason or event experienced by the person.

This disorder is characterized by disruption of the process of thinking and emotions that are not organized so that it affects behavior that becomes unnatural. The human rights of people with mental disorders usually lead to health efforts prepared by the state. They are entitled to special health efforts by involving the roles of the central government, local governments, and surrounding communities. Health efforts prepared by the government have four approaches, namely promotive, preventive, curative, and rehabilitative. Which is done in an integrated, comprehensive, and continuous manner between one approach and another. The government is obliged to support healing for people with mental disorders by building proper facilities for the healing process. But in reality, people with mental disorders mostly become homeless and abandoned, thus disputing the general public and disturbing order. Some regions of Indonesia, still do a lot of shackling to people with mental disorders, this is based on the low public understanding of mental illness. This is also due to economic constraints from his family who cannot afford to pay for the treatment of his family members. So, basically the Indonesian

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constitution guarantees human rights to people with mental disorders. This is also supported by other regulations in the form of laws and ministerial regulations that affirm that the state guarantees human rights to people with mental disorders. But in reality, people with mental disorders are underestimated by society. They are labeled as bad human beings, so people with mental disorders experience exclusion and discrimination that can trigger an increase in anti- social feelings and depression caused by the surrounding community. Then the government's attention has also not been fully focused on the intention to improve facilities that support treatment for psychiatric disorders. Therefore, the reality of human rights for people with mental disorders is not fully fulfilled, even vulnerable to being deprived or threatened with loss which is worked on by others.

References

Apriliana, Ade, dan Hana Nafiah. “Stigma Masyarakat Terhadap Gangguan Jiwa: Literature Review.” Prosiding Seminar Nasional Kesehatan 1 (2021): 207–16.

https://doi.org/10.48144/prosiding.v1i.658.

Fathiya Nabila, Winna Wahyu Permatasari, Niqo’ruma Azizi, Farid Pardamean Putra Irawan, Ana, dan Fatichatul Muflichah. “ODGJ CARE GROUP SEBAGAI UPAYA MEMBERIKAN PERLINDUNGAN HAM BAGI ORANG GANGGUAN JIWA.”

Lontar Merah 42 (2020): 383–89.

Fitriani, Laily. “Masungan Terhadap Orang Dengan Masalah Kejiwaan Dan Gangguan Jiwa Bertentangan Dengan Peraturan Perundang-Undangan.” Rechts Vinding Media pembinaan Hukum Nasiona;, 2014, 1–6.

HAM, Komnas. Undang-Undang No . 39 Tahun 1999, Undang-Undang Republik Indonesia Nomor 39 Tahun 1999 tentang Hak Asasi Manusia § (1999).

Indonesia, Republik. UU No. 36 Tahun 2009 (2009).

Irmansyah, I., Y. A. Prasetyo, dan H. Minas. “Human rights of persons with mental illness in Indonesia: More than legislation is needed.” International Journal of Mental Health Systems 3 (2009): 1–10. https://doi.org/10.1186/1752-4458-3-14.

Kesehatan, Kementrian. Peraturan Menteri Kesehatan No. 54 Tahun 2017 (2017).

Lahera, Tia, dan Dinie Anggraeni Dewi. “Hak Asasi Manusia : Pentingnya Pelaksanaan Dan Penegakan Hak Asasi Manusia Di Indonesia Saat Ini.” Journal Civics & Social Studies 5, no. 1 (2021): 90–97. https://doi.org/10.31980/civicos.v5i1.1055.

Mikhael, Lefri. “Tanggung Jawab Negara dalam Pemenuhan Hak Atas Kesehatan Jiwa Dihubungkan dengan Hak Asasi Manusia.” Jurnal HAM 13, no. 1 (2022): 151.

https://doi.org/10.30641/ham.2022.13.151-166.

Parera Ignasius, Zainuddin, dan Munadhir. “Stigma masyarakat terhadap penderita gangguan jiwa (study kualitatif di wilayah kerja puskesmas kewapante kecamatan kewapante

(15)

kabupaten sikka provinsi NTT).” Journal Health Community Empowerment 2, no.

October (2019): 80–92.

PBB, Majelis Umum. Deklarasi Universal Hak-Hak Asasi Manusia, 4 Indonesian Journal of International Law § (1948).

Perencanaan, Badan, Pembangunan Daerah, dan Provinsi Banten. “KAJIAN PENGEMBANGAN MODEL PENANGANAN,” 2017.

Prasetyo, Yosep Adi. “ODMK dan Pemenuhan HAM.” Jurnal Hak Asasi Manusia 5, no. 5 (2021): 31–49. https://doi.org/10.58823/jham.v5i5.47.

Republik, Negara, dan Indonesia Tahun. UNDANG-UNDANG DASAR (1945).

UU RI. Undang-Undang Republik Indonesia Nomor 18 Tahun 2014 Tentang Kesehatan Jiwa, 6 Angewandte Chemie International Edition § (2014).

Yusuf, Ah. “Stigma Masyarakat Indonesia tentang Gangguan Jiwa.” Surabaya, 2017.

Zein, Y A. “Konsep Hak Asasi Manusia Dalam Islam.” Veritas et Justitia. Bandung: Fakultas

Hukum, Universitas Katolik Parahyangan, 2015.

https://journal.unpar.ac.id/index.php/veritas/article/view/1418.