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Indonesian courts rule to protect the work rights of people with disability

Indonesia at Melbourne - December 6, 2022

Dina Afrianty – Last Saturday, 3 December, the world marked the International Day of People with Disability, an annual event designed to "increase public awareness, understanding and acceptance of people with disability".

While progress has been slow in Indonesia, recent court decisions offer some hope for people with disability wanting to secure their right to employment. On at least two occasions, courts have ruled to protect the rights of people with disability to employment in the public sector – but only after lower-level courts issued grossly unfair decisions.

The cases are a reminder of the stigma and discrimination often experienced by people with disability in Indonesia. Social attitudes – and in some case regulations – create barriers for Indonesians with disability that mean they are underrepresented in all levels of education, and have lower rates of employment.

Discriminatory policy and practices

Law No. 8 of 2016 on People with Disability establishes equal rights for people with disabilities. In addition to equal pay, it requires employers to provide reasonable accommodation (or adjustments), and imposes penalties for non-compliance. The law also establishes employment quotas. At least 2% of the workforce in the public sector, and 1% of the workforce in the private sector, must be comprised of people with disability.

But despite this regulatory framework, discrimination against people with disabilities continues in practice. For example, it is widely accepted that individuals must possess educational certificates to obtain even the most basic kinds of employment. This alone is a significant form of discrimination, because even if people with disability go to school and university, many are unable to finish and do not graduate.

A report published by the Indonesian Bureau of Statistics in 2021 revealed that 18.5% of people with disability never enrolled in school, compared to just 2.9% of people who do not have disabilities.

Discrepancies in completion of primary education are also high, with 28.4% of people with disability not completing primary school, compared to 10% of people with no disability. Finally, only 4.5% of people with disability hold tertiary degrees, compared to about 10% of people with no disabilities.

Another common practice that disadvantages people with disabilities is the pervasive requirement, in both the public and private sectors, for jobseekers to provide medical certificates as a condition for employment. This is embodied in the phrase "sehat jasmani dan rohani" (of sound body and mind) in regulations such as Law No. 26 of 1997 on Health Examinations for Civil Servants. In a society where disability is still often seen as a medical problem, this leaves a room for applicants to be considered "unhealthy" and therefore unemployable.

Legal advocacy for equality

Take the example of Baihaqi, a blind maths teacher, who had been teaching in a private school and participated in the civil servant recruitment process allocated for people disabilities in 2019. While he completed all administrative processes and attained the highest marks for competency, it was decided that he was unfit to fill the position.

Baihaqi failed in his appeals to the Semarang Administrative Court and Surabaya High Administrative Court in February and May 2021. In December 2021, however, the Supreme Court overturned the lower court decision and instructed the Central Java Provincial Secretary to issue a statement that Baihaqi was fit for the role, and had passed the examination process.

Dinni Hayati, meanwhile, is a female employee at the Ministry of Finance. She was dismissed in 2021 following a schizophrenic episode, despite having 10 years of experience and a postgraduate degree. After successfully receiving medical treatment, she appealed her dismissal to the Ministry and the Civil Service Advisory Agency (BPASN), unsuccessfully. With the support of disability advocates and the Jakarta Legal Aid Foundation (LBH), she took the case to the High Administrative Court in Jakarta. The court overturned her dismissal, and instructed the Ministry to reinstate her. Both the Baihaqi and Dinni decisions referred to the 2016 Law on People with Disability.

Human resources meets human rights

Former President Abdurraham Wahid ("Gus Dur") was famously vision-impaired, and was selected president by the People's Consultative Assembly (MPR) in 1999, when indirect presidential elections were still in place. But he was prevented from nominating as a candidate in the first direct presidential election in 2004, because of the requirement that candidates must be "physically and mentally healthy". This has perhaps served as a powerful precedent entrenching the perception that a person must meet an arbitrary standard of health to secure employment.

But the decisions of the Supreme Court and the Jakarta High Administrative Court should give disability and human rights advocates the confidence that advocacy to protect and respect the rights of people with disabilities really can work.

These decisions are also evidence that the comprehensive legal framework on people with disability introduced in 2016 has significant potential to improve people's lives.

But it is clear that institutions still have a lot of work to do to implement the law. These two cases show that "reasonable accommodation" of the different needs and abilities of people with disability is an ongoing obligation.

They also demonstrate that courts are willing to acknowledge the capability of workers with physical and mental disabilities, if those workers are willing to persist, and appeal bad decisions.

With greater effort in these areas, there is perhaps now a real chance – at last – that people with disability can attain greater independence and contribute to national development as equal citizens.

Source: https://indonesiaatmelbourne.unimelb.edu.au/indonesian-courts-rule-to-protect-the-work-rights-of-people-with-disability