Tajudin as Principal Petitioner of the hearing on the Human Trafficking Law, on Thursday (19/10) in the Plenary Hall of the Constitutional Court Building. Photo by Humas MK/Ifa.

Petition for judicial review of Law No. 21 of 2007 on the Eradication of Human Trafficking (Human Trafficking Law) filed by Tajudin bin Tatang Rusmana was finally rejected by the Constitutional Court (MK) entirely. The decision No. 32/PUU-XV/2017 was read on Thursday (19/10) afternoon. 

"The Court decision hears, rejects the petition entirely," said Chief Justice of the Constitutional Court Arief Hidayat in the presence of the other constitutional judges. 

In his petition, the Petitioner explained he was a victim of criminalization resulting from the interpretation of the phrase "recruits, transports, harbors, transfers, or receives a person through the threat of force, use of force, abduction, incarceration, deception, abuse of authority or position of vulnerability, debt bondage or the giving of payment or benefits despite the giving of consent by another individual having charge over the person for the purpose of exploiting" in Article 2 paragraph (1) of the Human Trafficking Law. In the Decision of Tangerang District Court No. 1608/Pid.Sus/2016/PN.Tng, the Petitioner was declared to have committed crime as mentioned in Article 2 paragraph (1) of the Human Trafficking Law juncto Article 64 paragraph (1) of the Criminal Code and Article 88 of Law 35/2014 juncto Article 64 of the Criminal Code. The Petitioner is a cobek (stone pestle and mortar) maker and seller from Jaya Mekar Village, Padalarang Sub-distric, West Bandung Regency who has served a nine month sentence on charges of employing minors. Previously, Tajudin was arrested by the Tangerang Selatan police resort on April 20, 2016 and released on January 14, 2017 due to insufficient proof. 

In relation to the petition, in the legal consideration read by Constitutional Justice Manahan Sitompul, the Court considers the act of human trafficking as an inhumane crime for insulting and degrading human dignity, so it should be treated as the hostis humani generis, a common enemy of mankind. Human trafficking is no different from slavery, similar to marine piracy crimes that have long been categorized as a common enemy of mankind by international law, so the international law enforces a universal jurisdiction in which each state is authorized to prosecute and punish perpetrators of such a crime. 

According to the Court, Justice Manahan continued, human trafficking, especially of women and children, is an act that contradicts human dignity and human rights and must be eradicated. Human trafficking is widespread in organized and in-organized criminal networks, both interstate and domestic, thus posing a threat to society, nation, and state as well as to the norms of life based on respect for human rights. In addition, the Court considered the Human Trafficking Eradication Law an instrument to protect people from the dangers of human trafficking. This criminal act has special characteristics because it involves complex aspects as well as crossing national borders and conducted by organized, underground organizations. 

In the petition, the Petitioners mixed up a concrete case faced by the Petitioner with the issue of constitutionality of the law in casu Human Trafficking Law. In relation to that, the Court re-affirmed that it must be distinguished from the issue of the constitutionality of a norm of law. In the case experienced by the Petitioner, it is not related to the issue of constitutionality of the law in casu Article 2 paragraph (1) of the Human Trafficking Law, but the issue of the application of the law, which in this case is closely related to evidence. 

"In a concrete case, a person is convicted of a crime prohibited by Article 2 paragraph (1) of Law No. 21/2007. It does not mean that Article 2 paragraph (1) of Law No. 21/2007 is contradictory to the 1945 Constitution as already considered above, but solely according to a judge\'s judgment in a case I which the person concerned is proven to have committed a crime as prosecuted by the public prosecutor," said Justice Manahan. 

According to the Court, such judges\' judgment cannot be interfered with by the Court. If the person concerned does not feel guilty, the criminal justice system has provided legal measures for it, either through the ordinary measures of appeal and cassation, and even extraordinary legal measures, if there is a novum. It is entirely the jurisdiction of the Supreme Court and the lower public courts. 

"Considering that based on all the above legal considerations, it has been found that the Petitioner’s argument is groundless according to law," said Justice Manahan. (Nano Tresna Arfana/LA/Yuniar Widiastuti)