The Political Rights of Persons with Disabilities

PERTANYAAN

Can people with disabilities have a chance to become President?

INTISARI JAWABAN

In essence, political rights are the right to elect and to be elected. Furthermore, every Indonesian Citizen basically has the right to be actively involved in political life, one of which is the election of Presidential and Vice Presidential candidates.

Thus, do people with disabilities have the same rights to be elected as candidates for President and Vice President? What are the political rights of persons with disabilities in Indonesia?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hak-Hak Politik Penyandang Disabilitas, written by Renata Christha Auli, S.H., and published on Wednesday, 7 June 2023.

This article is an update of the article with the same title, written by Sovia Hasanah, S.H. and was first published on Wednesday, 18 July 2018.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Political Rights

Before answering your question, we should first understand what is meant by politics and political rights. Politics according to Andrew Heywood is the activity of a nation that aims to create, maintain and amend the general rules that govern its life, which means it is inseparable from the symptoms of conflict and cooperation. Meanwhile, according to Peter Merkl, politics in its best form is an effort to achieve a good and just (equal) social order. Meanwhile, politics in its bad form is the struggle for power, position, and wealth for self-interest. From the definition of politics, it can be interpreted that political rights are the rights possessed by everyone given by the law to achieve, and seize power, position, and wealth that are useful for themselves.[1] In other words, in essence, political rights are the right to elect and to be elected.[2]

Regarding your question about the opportunity for people with disabilities to become President, here we explain the requirements to become a candidate for President and Vice President.

Requirements for Presidential and Vice Presidential Candidates

Basically, candidates for President and Vice President must be Indonesian Citizens (Warga Negara Indonesia/ "WNI") since their birth and have never received another citizenship due to their own will, have never betrayed the country, and are spiritually and physically able to carry out their duties and obligations as President and Vice President.[3]

The requirements to become a candidate for President and Vice President are further regulated in Article 169 Law 7/2017, namely:

1. piety to God Almighty;
2. Indonesian Citizen since his/her birth and has never received other citizenship of his/her own free will;
3. the husband or wife of the Presidential candidate and the husband or wife of the Vice Presidential candidate are Indonesian Citizens;
4. has never betrayed the country and has never committed corruption and other serious crimes;
5. spiritually and physically able to carry out the duties and obligations as President and Vice President and has never done narcotics crimes;
6. resides in the territory of the Unitary State of the Republic of Indonesia;
7. has reported his/her wealth to the agency authorized to examine the wealth report of state administrators;
8. does not have any individual and/or legal entity debts for which he/she is responsible that is detrimental to the state finances;
9. has not been declared bankrupt based on a court decision;
10. has never committed a disgraceful act;
11. not being nominated as a member of the House of Representatives, Regional Representatives Council, or Regional Legislative Council;
12. registered as a voter;
13. has a taxpayer identification number and has carried out the obligation to pay taxes for the last 5 (five) years as evidenced by the annual income tax return for individual taxpayers;
14. has never served as President or Vice President for 2 (two) periods in the same position;
15. loyal to Pancasila, the 1945 Constitution, the Unitary State of the Republic of Indonesia, and Bhinneka Tunggal Ika;
16. has never been sentenced to imprisonment based on a court decision that has obtained permanent legal force for committing a criminal offense punishable by imprisonment of 5 (five) years or more;
17. at least 40 years old;
18. have at least a high school diploma, madrasah aliyah, vocational high school, vocational madrasah aliyah, or other equivalent school;
19. not a former member of a banned organization of the Indonesian Communist Party (Partai Komunis Indonesia), including its mass organizations, or not a person directly involved in G.30.S/PKI; and
20. have a vision, mission, and program for implementing the government of the Republic of Indonesia.

Based on these regulations, in our opinion, no requirements mention the prohibition for persons with disabilities to nominate themselves for President and Vice President candidates. However, to become a candidate for President and Vice President, they must be able to be spiritually and physically capable of carrying out the duties and obligations as President and Vice President and have never done narcotics crimes. Not all people with disabilities can be categorized as someone who is physically and mentally incapable of being productive in politics, it's just that in this case people with disabilities have limitations.

In addition, please note that people with disabilities also have the same rights to be elected and vote in government. Here we explain the legal basis.

Also read: Can a Person Who Has Been Convicted Run for President?

The Right of Persons with Disabilities to be Elected and Vote in Government

Persons with disabilities according to Article 1 number 1 Law 8/2016 are defined as every person who experiences physical, intellectual, mental, and/or sensory limitations for a long period of time who in interacting with the environment may experience obstacles and difficulties to participate fully and effectively with other citizens based on equal rights.

Furthermore, based on Article 4 section (1) Law 8/2016, the types of persons with disabilities include:

1. Persons with physical disabilities;
2. Persons with intellectual disabilities;
3. Persons with mental disabilities; and/or
4. Persons with sensory disabilities.

Furthermore, every citizen basically has the right to be actively involved in political life. The right to politics is contained in various international and national legal provisions.[4] Indonesia itself must respect the principles and objectives of the Charter of the United Nations (“UN”) as well as the Universal Declaration of Human Rights ("UDHR") or in Bahasa Indonesia known as the Deklarasi Universal Hak Asasi Manusia (“DUHAM”) which contains the principles of human rights and basic freedoms which are used as a reference in upholding and respecting human rights.[5]

Thus, persons with disabilities, as part of Indonesian Citizens, also have the right to be actively involved in political life as stipulated in Article 21 number 1 UDHR.

In its development, the UN stipulated the International Covenant on Civil and Political Rights ("ICCPR"). As a legal country that upholds the enforcement and respect of human rights, Indonesia has taken a step by ratifying the ICCPR through Law 12/2005. Article 25 ICCPR also regulates that every citizen shall have the right and the opportunity, without any of the distinctions, one of which is to participate in government affairs, the right to vote and the right to be elected with the same universal suffrage.

In addition, Article 28D section (1) 1945 Constitution also guarantees the right of every person to recognition, guarantees, protection, and certainty of a just law and equal treatment before the law.

Regarding the right of persons with disabilities to run for president, Article 43 Human Rights Law regulates the rights of citizens to participate in government, namely:

1. Every citizen has the right to be elected and to vote in general elections based on equal rights through direct, general, free, secret, honest, and fair voting in accordance with the provisions of laws and regulations.
2. Every citizen has the right to participate in government directly or through a freely chosen representative, in the manner prescribed by law.
3. Every citizen can be appointed in every government position.

Furthermore, Article 5 Law 7/2017 confirms that as long as persons with disabilities meet the specified requirements, then persons with disabilities also have the same opportunity as voters, as candidates for House of Representatives members, Regional Representatives Council members, as candidates for President or Vice President, as candidates for Regional Legislative Council members, and as General Election Organizers.

Article 13 Law 8/2016 also regulates the political rights of persons with disabilities, among others:

1. elect and be elected in public position;
2. channel political aspirations both written and oral;
3. elect political parties and/or individuals who are participants in general elections;
4. form, become members, and/or administrators of community organizations and/or political parties;
5. form and join organizations of Persons with Disabilities and represent Persons with Disabilities at local, national, and international levels;
6. actively participate in the general election system at all stages and/or parts of its implementation;
7. obtain accessibility to facilities and infrastructure for the implementation of general elections, elections of governors, regents/mayors, and elections of village heads or other names; and
8. obtain political education.

The Government and Regional Governments are obliged to ensure that persons with disabilities can participate effectively and fully in political and public life directly or through representatives.[6] Then, the Government and Regional Governments are also obliged to guarantee the rights and opportunities for persons with disabilities to elect and be elected,[7] because in essence, persons with disabilities have the right to occupy public positions.[8]

Also read: Right to Information for Hearing Impaired People

So based on the explanation above, it can be concluded that basically people with disabilities have the same rights to be elected and vote in elections (in this case the election of Presidential and Vice Presidential candidates). However, persons with disabilities are also required to fulfill the requirements to become candidates for President and Vice President, one of which is being able to spiritually and physically carry out the duties and obligations as President and Vice President.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. The 1945 Constitution of the Republic of Indonesia;
2. Law Number 39 of 1999 on Human Rights;
3. Law Number 12 of 2005 on the Ratification of International Covenant on Civil and Political Rights;
4. Law Number 8 of 2016 on Disabled People;
5. Law Number 7 of 2017 on General Election as amended by Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation which has been passed into law under Law Number 6 of 2023;
6. Deklarasi Universal Hak Asasi Manusia;
7. International Covenant on Civil and Political Rights;
8. Universal Declaration of Human Rights.

Reference:

1. Adrianus Bawamenewi. Implementasi Hak Politik Warga Negara. Jurnal Warta Edisi, No. 61, 2019;
2. Ahsanul Minan (et.al). Seri Evaluasi Penyelenggaraan Pemilu Serentak 2019 Perihal Pelaksanaan Hak Politik. Jakarta: BAWASLU, 2019;
3. Hilmi Ardani Nasution dan Marwandianto. Memilih dan Dipilih, Hak Politik Penyandang Disabilitas dalam Kontestasi Pemilihan Umum: Studi Daerah Istimewa Yogyakarta. Jurnal HAM, Vol. 10, No. 2, 2019.

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[1] Adrianus Bawamenewi. Implementasi Hak Politik Warga Negara. Jurnal Warta Edisi, No. 61, 2019, p. 44.

[2] Ahsanul Minan (et.al). Seri Evaluasi Penyelenggaraan Pemilu Serentak 2019 Perihal Pelaksanaan Hak Politik. Jakarta: BAWASLU, 2019, p. iii.

[3] Article 6 section (1) Third Amendment of The 1945 Constitution of the Republic of Indonesia.

[4] Hilmi Ardani Nasution dan Marwandianto. Memilih dan Dipilih, Hak Politik Penyandang Disabilitas dalam Kontestasi Pemilihan Umum: Studi Daerah Istimewa Yogyakarta. Jurnal HAM, Vol. 10, No. 2, 2019, p. 163.

[5] Hilmi Ardani Nasution dan Marwandianto. Memilih dan Dipilih, Hak Politik Penyandang Disabilitas dalam Kontestasi Pemilihan Umum: Studi Daerah Istimewa Yogyakarta. Jurnal HAM, Vol. 10, No. 2, 2019, p. 164.

[6] Article 75 section (1) Law Number 8 of 2016 on Disabled People (“Law 8/2016”).

[7] Article 75 section (2) Law 8/2016.

[8] Article 76 Law 8/2016.