Plenary ruling hearing of judicial review of Child Protection Law and Law on Teachers and Lecturers, Wednesday (28/3) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The provisions of child protection in educational as set forth in Article 9 paragraph (1a) and Article 54 paragraph (1) of the Child Protection Law as well as Article 39 paragraph (3) of the Teachers and Lecturers Law are not contradictory to the 1945 Constitution. The Court in legal considerations No. 6/PUU-XV/2017 argued such provisions are necessary to protect children from acts of violence or other crimes. 

"Article 9 paragraph (1a) and Article 54 paragraph (1) of Law No. 35/2014 regulate the protection of children from acts of violence or other crimes committed within the educational unit," said Constitutional Justice I Dewa Gede Palguna read the legal considerations on Wednesday (28/3). 

Dasrul and Hanna Novianti, teachers who were criminalized due to the enforcement of the articles, filed a judicial review of three articles in the Child Protection Law as well as the Teachers and Lecturers Law. In their petition, the Petitioners experienced legal uncertainty and felt unfairly treated in that in their position as teacher they felt it difficult to be independent due to pressure from various parties. The Petitioners felt that the criminalization that happened to them was a result of the enactment of the articles being petitioned. 

Furthermore, the Petitioners explained that they had experienced violence when educating their students while, according to the Petitioners, teachers might intend to punish their students in order to enforce discipline, but parents and society categorize it as an act violating human rights and the Teachers and Lecturers Law. Parents report the teacher\'s action to the police or to the Indonesian Child Protection Commission (KPAI), so teachers often did fail to receive legal protection for their profession, as experienced by Dasrul. Dasrul is a teacher at the Vocational Secondary School (SMK) 2 Makassar who was beaten by a student’s parent, Adnan Achmad, who had felt that his son received corporal punishment from Dasrul. However, Dasrul argued that the enforcement of discipline by way of punishment was uncommon today for violating human rights that parents would report it to the authorities as a form of violence. The Petitioner stated that resulting from the a quo articles, teachers are in a very passive position and in a bind. Teachers who perform duties as mandated by the Teachers and Lecturers Law should not be criminalized. 

In relation to the petition, Justice Palguna explained that Article 9 paragraph (1a) and Article 54 paragraph (1) of Law No. 35/2014 are concrete forms of the Government protection for every person, especially to children as regulated in Article 28D paragraph (1) and Article 28B paragraph (2) of the 1945 Constitution. In line with the 1945 Constitution, the basic principles of the Convention on the Rights of the Child that have been ratified by the State of Indonesia through Presidential Decree No. 36/1990 on the Ratification of the Convention on the Rights of the Child do not provide anyone with exception for violence against children, including violence by educators against learners albeit under the pretext of coaching or disciplining learners.

"Violence as a tool for educating today is irrelevant; punishment in the educational process should be used in order to instruct, guide, and educate learners. Therefore, the Petitioner’s argument that Article 9 paragraph (1a) and Article 54 paragraph (1) of Law No. 35/2014 are contrary to the 1945 Constitution is unreasonable according to the law," Justice Palguna explained.

In the hearing presided over by Deputy Chief Justice of the Constitutional Court Anwar Usman, Constitutional Justice Maria Farida Indrati, who also read the legal considerations, mentioned that a criminal act, whether committed by an educator on a learner and by a learner on an educator, remains a crime that can be applied to both educators and learners. The criminal act still emphasizes the principles of restorative justice and/or peaceful settlement so that no one party is harmed by the consequences arising from the criminal act committed by either educator, learner, parent, community, bureaucracy, or other parties.

In this context, Justice Maria continued, the existence and role of the teachers ethics council must be optimized. Therefore, in the event of an indication of criminal acts committed by an educator, prior to legal action by law enforcers, the teachers ethics council must first be given an opportunity to to express their opinions and recommendations. This, she explained, is in accordance with the function and role of the teachers ethics council as stipulated in Article 44 paragraph (3) of Law No. 14/2005 that reads, "The teachers ethics council as referred to in paragraph (1) was established to oversee the implementation of the teachers’ code of ethics and to provide recommendations of sanctions for violations of ethics code by teachers."

"In this way, criminal law enforcement actually functions as a last resort (ultimum remedium). [3.13] Considering whereas based on the above considerations, according to the Court, the petition of the Petitioner is unreasonable according to law," Justice Maria explained. (Lulu Anjarsari/Yuniar Widiastuti)