The Constitutional Court held a trial for a review of Article 356 paragraph (1) of the Criminal Code against the 1945 Constitution, Wednesday (17/12) in the Constitutional Court Panel Room, Jakarta.
 
The case registered on November 17, 2008 with case number 42/PUU-VI/2008 was filed by Bambang Sugeng Irianto, 46 year. The Petitioner having his place of residence in Kediri City, East Java, was a defendant charged by General Attorney based on the stipulation in Article 352 and Article 356 paragraph (1) of the Criminal Code as alternative charge on his conduct of domestic violence. Article 356 paragraph (1) of the Criminal Code mentioned as follow.

Crimes regulated under article 351, 353, 354 and 355 can be added by one-third:
1. to defendant who conducts the crime on the mother, legal father,the wife or children of the defendant;
 
The Petitioner announced that the implementation of the article a quo had violated Article 27 paragraph (1), Article 28D paragraph (1), Article 28G paragraph (1), Article 28H paragraph (2), Article 28I paragraph (1) UUD 1945. As the result of the implementation of the articles a quo, the Petitioner felt that his constitutional rights, that is the right on equal treatment and obligation to uphold the law, the right on security for fair trial, and the right to be free from torture on the basis of a retroactive law, had been violated by the investigators and attorneys.
 
Actually, according to the Petitioner, the action he did had been arranged in a more specific regulation, Act No. 23/2004 on the Eradication of Domestic Violence (Act on Domestic Violence). Thus, according to Article 63 Paragraph (2) of the Criminal Code, the Petitioner considered that if such regulation on specific crime existed then only the regulation on specific crime should be applied. In this case, the Petitioner considered the Act on Domestic Violence was the lex specialis of the Criminal Code.
 
Besides that, according to the Petitioner, Article 27 paragraph (1) of the 1945 Constitution guaranteed the equality of rights for all citizens before the law. Meanwhile, in Petitioner s consideration, Article 356 paragraph (1) had set a difference in the sanction for abuse against other people with the abuse against own family whose sanction was added by one-third.
 
The Petitioner also considered Article 356 paragraph (1) had discriminated himself as a husband. According to the Petitioner, such regulation did not apply for wife s abuse against husband as a crime which sanction should be added by one-third. “So it goes to one side,” said Bambang.
 
Responding to the petition, member of the panel board of Justice, M. Arsyad Sanusi demanded the Petitioner to reconsider his petition. According to Arsyad, Article 356 paragraph (1) pleaded by the Petitioner to be reviewed was a regulation aimed at bringing peace and order in a family. It was expected that by imposing more sanction, the violence and disputes in a family could be prevented. “Do you ask for special crime (for Domestic Violence perpetrator) to be annulled?” he asked the Petitioner.
 
Arsyad also considered Article 356 paragraph (1) of the Criminal Code did not only bind husbands. He mentioned that the Article also applied to wives who committed crimes against their husbands.

Bambang Sugeng Irianto filed a review on Article 356 paragraph (1) of the Criminal Code because he felt that he had been unfairly treated by the judges in Kediri District Court which imposed a month detention outside the prison. Bambang was sentenced due to the beating he did to his wife because he did not like the wife s behaviour for accepting other men apart from her family and relatives to the beauty parlour she managed.
 
The judges verdict by imposing Article 356 paragraph (1) of the Criminal Code was the one he considered as against the rule. According to him, there was a more specific law which regulated the action he did, the Act on Domestic Violence. Actually, said Bambang, the attorney had sentenced him by primary sentence using Article 44 of Act on Domestic Violence. Nevertheless, the judges sentenced him by using stipulations in Criminal Code. The arguments were used by Bambang to file a judicial review to the Constitutional Court.
 
The Constitutional Court according to Constitutional Justice M. Arsyad Sanusi was not the proper place to file the argument. According to Arsyad, that was more to the implementation of law instead of reviewing law norms. Incorrect implementation of law, according to Arsyad, was a form of constitutional complaints. “The Court does not possess the authority for that,” explained Arsyad in the previous trial (3/12).
 
Head of Justice Panel Board, Muhammad Alim, also considered what the Petitioner experienced in the general court process belonged to the Supreme Court Jurisprudence or the judiciary institution under its control. “The Constitutional Court can not interfere the judicial process in the Supreme Court,” said Alim. [ardli]

Translated by Yogi Djatnika / MK