Registrar of The Constitutional Court, Kasianur Sidauruk handed out a copy of Decision to the Government represented by Mualimin Abdi from The Ministry of Law and Human Rights, Thursday (24/2)
Jakarta, MKOnline - The Constitutional Court (The Court) in their decision stated that the age limit for children to be seek for a criminal responsibility was 12 years old. The Court considered that at the minimum age of 12 limit would secure more the rights of the children to grow and develop and get protection as guaranteed in Article 28B paragraph (2) of the 1945 Constitution.
The limit of 8 years old for a child to be brought before the court and less than that to be investigated was factually considered low. The explanation of Act on Children’s Adjudication setting the minimum age limit of 8 was sociologically, psychologically, and pedagogically considered a child could be considered to have a sense of responsibility. The Court considered that the legal facts showed that there were some problems in the process of investigation, detaining, and trialing that it injured children’s constitutional rights guaranteed by the 1945 Constitution.
That was one of The Court’s opinion in the trial for verdict reading on Thursday (24/2). In the decision, The Court granted a part of the petition for Case No. 1/PUU-VIII/2010 on the review of Act on Children’s Court pleaded by the Indonesian Child Protection Commission (KPAI) and Medan Child’s Protection and Study Center Foundation (YPKPAM) which seek to review the constitutionality of Article 1 number 2 letter b, Article 4 paragraph (1), Article 5 paragraph (1), Article 22, Article 23 paragraph (2) letter a, Article 31 paragraph (1) of Act No. 3 of 1997 about Children’s Court against Article 28B paragraph (2), Article 28D paragraph (1), and Article 28I paragraph (1) of the 1945 Constitution.
Age of Responsibility
The Court considered that the existence of Act on Children’s Court was supposed to be aimed at providing the best protection for children in order to secure their rights to life, the rights to survival and the rights to develop. The existence of Act on Children’s Court was specifically was of the highest importance for children in form of the affirmative action to children.
After studying the entire stipulations on Children’s Court. The Court saw that there was much substance or the content of the Act on Children’s Court that needed to be modified, such as Article 23 paragraph (2) letter a of the Act which stated that “Primary Crime Sanction that can be imposed to juvenile delinquency is; a. Imprisonment; b. Detention; c. Fine; d. Supervision”. The systematic of the formulation was supposed to put Supervision in the first place and lastly the imprisonment.
Based on the legal opinions from the Government’s expert, Dr. Mudzakkir, S.H., M.H., experts from the Petitioners, Dr. Surastini, S.H., M.H., Fentiny Nugroho, M.A., Ph.D, Prof. Bismar Siregar, Hj. Aisyah Amini, and Adi Fahrudin, The Court considered that the age limit had caused multi interpretations and a controversy in ideas that there had to be an age limit which was alongside with and in accordance with the legal responsibility within the Act on Children’s Court on the basis of children’s constitutional rights consideration, The Court found a difference in the age limit for children to be put under an investigation process, trial process, and in imposing sanction.
Article 4 paragraph (1) of Act on Children’s Court stated that the age limit for juvenile delinquency that could be brought before the court was at the least of 8 years old. Furthermore, Article 5 paragraph (1) stated that in the event that a child had not yet reached the age of 8, an investigation could be executed. Meanwhile Article 26 paragraph (3) and (4) of the Act stated that in the case that the delinquency had not reached the age of 12 for a crime which was threatened by death or life sentence then on the subject could only be imposed a sanction as arranged in Article 24 paragraph (1) of Act on Children’s Court and it could not be executed under 12 years old.
The setting of minimum age of 12 as the limit for legal responsibility for children had been accepted in the practices in some countries as also recommended by the UN Commission on Children’s Rights in the General Comment date February 10, 2007. With 12 years old as the limit, then it had been in accordance with the stipulation on criminal sanctions that might be imposed on children in Article 26 paragraph (3) and (4). The setting of age limit had also considered that a child had relatively had a stabile emotional, mental, and intellectual intelligence also according to the psychology and culture of Indonesian children, so they could be responsible legally because they were aware of their rights and obligations. Thus The Court considered that the age limit 12 years old guaranteed more the children’s right to develop and right to protection as guarantedd in Article 28B paragraph (2) of the 1945 Constitution.
Even though what was pleaded for review was only Article 4 paragraph (1) so long as the phrase “…at the minimum of 8 (eight) years old…” and Article 5 paragraph (1) so long as the phrase “…not reach the age of 8 (eight)…”, The Court with their constitutional authorities did not allow the existence of norms within an Act that was inconsistent and unequal to the mandate of constitutional protection which was constructed by The Court. Therefore, norms in other articles within this Act, that is Article 1 paragraph 1 and the explanation of Act on Children’s Court so long as containing the phrase as mentioned in Article 4 paragraph (1) and Article 5 paragraph (1) of the Act on Children’s Court had to be announced conditionally unconstitutional.
In the conclusion, The Court considered that the Petitioners’ arguments were legally proven partially. As the result in the verdict, The Court granted some of the petition. The Court stated that the phrase, “….8 (eight) years old…” within the Article 1 number 1, Article 4 paragraph (1) and Article 5 paragraph (1) of Act No. 3 of 1997 on Children’s Court along with the explanation were conditionally unconstitutional to the 1945 Constitution, which means they were unconstitutional except they were interpreted as “…12 (twelve) years old…”
Furthermore, stating the phrase in the articles along with the explanation in the Act did not have a binding legal force which means unconstitutional except it was interpreted as “…12 (twelve) years old…”. Lastly stating to reject the rest of and the other petition.
Dissenting Opinion
This decision was not taken in full bench by all nine constitutional justices in the Justice Deliberation Meeting (RPH). Constitutional Justice M. Akil Mochtar took a different side in his opinion (dissenting opinion) on Article 1 number 2 letter b of Act No. 3 of 1997 so long as the phrase “…or according to other legislation which lives and enacted in the related people”,
According to Akil, The Court should have stated Article 1 number 2 letter b of Act No. 3 of 1997 on Children’s Court so long as the phrase were mentioned was against the 1945 Constitution (Nur Rosihin Ana/mh/YDJ)
Monday, February 28, 2011 | 14:21 WIB 2872