Constitutional Court Decides on KPAID in Child Protection Law

The Petitioner’s M. Joni in the ruling hearing of the judicial review of the Child Protection Law, Tuesday (19/05) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) rejected the judicial review petition of Law No. 35 of 2015 on Child Protectionon the Amendment to Law No. 23 of 2002 on Child Protection. The petition was filed by the Indonesian Child Protection Commission (KPAI), the Child Supervision and Protection Commission of Aceh (KPPAA), and the Child Supervision and Protection Commission (KPPAD) of West Kalimantan Province. The decision was read out by Chief Constitutional Justice Anwar Usman in the ruling hearing on Tuesday (19/05/2020) in the Plenary Courtroom of the Constitutional Court.

Amidst the COVID-19 pandemic, the hearing applied physical distancing in accordance with the health protocols set by the Indonesian Health Ministry and the World Health Organization (WHO).

"The verdict adjudicated, declares: First, the Petitioners’ petition not accepted. Second, rejects the Petitioners’ petition for its entirety," said Chief Constitutional Justice Anwar Usman reading out the Decision No. 85/PUU-XVII/2019.

The Petitioners argued that the absence of the phrase “including the Child Protection Commission” in Article 74 paragraph (1) of the Child Protection Law as well as the word “obligated” for the regions to establish the Regional Indonesian Child Protection Commission (KPAID) as an independent in Article 74 paragraph (2) of the Child Protection Law, child protection in the regions will be reduced as the Indonesian Child Protection Commission (KPAI) will not have the capacity to monitor child protection all across the country, therefore contradicting Article 28B paragraph (2), Article 28D paragraph (1), and Article 28I paragraph (4) 1945 Constitution.

Article 74 paragraph (2) of the Child Protection Law reads, "If necessary, the Regional Government may establish a Regional Child Protection Commission or another similar institution to support the supervision of the implementation of child protection in the region."

In the legal considerations read out by Constitutional Justice Enny Nurbaningsih, the Court believed that the crucial point of the provision is the phrase “to support the supervision of the implementation of child protection in the region.” The decision regarding whether the support will be relegated to a separate institution or not is in the hands of the regional government as the Child Protection Law gives the regional government the full authority of the establishment of the institution. The establishment of any institution in the region must refer to relevant regulations regarding the establishment of an institution, organ, or apparatus in the region to avoid proliferation as occurred in the early era of the implementation of the broadest autonomy under Law No. 22 of 1999 concerning the Regional Government.

"Moreover, if these institutions then have overlapping duties and functions, their purposes will not be optimal, which will ultimately lead to the waste of state finances," Justice Enny said.

One of KPAI’s core businesses is to supervise the implementation of the protection and fulfillment of children’s rights as stated in Article 76 letter a of the Child Protection Law. Based on the division of concurrent governmental affairs, it is not stated that the regional authority supervises the implementation of the protection and fulfillment of children’s rights because the scope of regional authority includes institutionalizing the fulfillment of children’s rights, strengthening institutional service providers to improve children’s quality of life, preventing violence against children, and providing services for children who need special protection. However, even though supervision of the implementation of the protection and fulfillment of children’s rights is not specifically mentioned as the task of the regional government, it does not mean that the region is totally independent of the implementation of the supervisory function. In the context of implementing regional autonomy, the oversight function is an inherent function in the administration of government.

In fact, it is always emphasized in every local government law. Article 7 paragraph (1) of Law No. 23 of 2014 reads, "The Central Government provides guidance and supervision of the implementation of Government Affairs by the Regions." This guidance and supervision are carried out by ministers/heads of institutions related to these government affairs. Furthermore, Article 91 of Law No. 23 of 2014 reads, "In carrying out the guidance and supervision of the administration of Government Affairs, which are the authority of regency/city and Co-Administration by regency/city, the President is assisted by the governor as the representative of the Central Government."

Because child protection is the region’s obligation unrelated to basic services, the central government gradually provides guidance and oversight of the implementation of these affairs. In this context, KPAI should work together with local governments so that children’s constitutional rights can be guaranteed and fulfilled.

Therefore, the Petitioners’ request that the Court add the phrase “including the Regional Child Protection Commission” in Article 74 paragraph (1) of the Child Protection Law, furthermore if it necessitates the establishment being done by the local government (Article 74 paragraph (2)), is baseless. However, referring to Article 74 paragraph (1) of the Child Protection Law, the local government may establish the institution if necessary, according to the conditions and the issues of child protection in the regions. This is also in accordance with Article 28B paragraph (2) of the 1945 Constitution. So, the establishment of the Regional Indonesian Child Protection Commission according to Article 74 paragraph (2) is not meant to reduce the region’s authority of administrative affairs that are under its purview, in casu on child protection.

Therefore, the Constitutional Court was of the opinion that there is not constitutionality issue regarding Article 74 paragraph (1) and (2) of the Child Protection Law, so that the Petitioners’ argument is legally groundless.

Community’s Role

The Petitioners also argued that Article 76 letter a of the Child Protection Law was unconstitutional as it nullified the dissemination duty of the Indonesian Child Protection Commission (KPAI). The Court was of the opinion that the KPAI’s dissemination duty is not nullified just because it is not specifically mentioned in Article 76, but that by lawmakers it was relegated to the community as is stipulated in Article 72 paragraph (3) of the Child Protection Law, which reads, “The role of the community in the implementation of child protection is carried out by providing information through dissemination and education about children’s rights and legislation concerning children.”

The community as intended by the article refers to individuals, child protection institutions, social welfare institutions, community organizations, educational institutions, the media, and the business world. This means that with this change in provision, dissemination will no longer be a monopoly of the KPAI as originally stipulated in Article 76 paragraph (1) of Law No. 23 of 2002.

The regulation of the community’s role in Law No. 23 of 2002 is limited and has no clear scope on the implementation, including the methods. Therefore, along with changes to the Child Protection Law, the community’s role needs to be expanded in order to realize the objectives of the Child Protection Law. Consequently, the dissemination duty is expanded to various parties, including the KPAI and the KPAID as child protection institutions.

“The increased involvement of stakeholders in dissemination, logically the community’s understanding of child protection will improve,” Justice Enny added.

This improvement is crucial not only to promote child protection, but also to foster community awareness of the importance of fulfilling children’s rights so that children can live, grow, develop, and participate optimally in accordance with human dignity and protection from violence and discrimination, for the realization of quality, noble, and prosperous Indonesian children. The fulfillment of those rights is in line with the objective of the ratification of the Convention on the Rights of the Child through the Presidential Decree No. 36 of 1990 on the Ratification of the Convention on the Rights of the Child.

The Petitioners’ concern that supervision of the implementation of children’s rights all across the nation due to the lack of dissemination duty along with supervision is baseless because, in principle, Article 76 of the Child Protection Law stipulates that child protection institutions are given dissemination duty. In this context, Justice Enny added, the role of supervision that the KPAI has can also be linked with the role of dissemination. Not to mention, the nomenclature used in the law is child protection institutions, so that the there is an opportunity for the KPAI and the KPAID to carry out dissemination.

Based on the aforementioned legal considerations, the Constitutional Court was of the opinion that the Petitioners’ argument on the constitutionality of Article 76 letter a of the Child Protection Law was legally groundless.

The Petitioners of case No. 85/PUU-XVII/2019 challenged Article 74 paragraph (1); Article 74 paragraph (2) the phrases/words "if necessary," "may," "or another similar institution;" and Article 76 letter a that stipulates that the Indonesian Child Protection Commission conducts supervision of the implementation of the protection and fulfillment of children’s rights.

The Petitioners argue that that Article 74 paragraph (1) of the Child Protection Law acknowledges that the KPAI is independent, but is limited as it is not united with the Regional Child Protection Commission (KPAD). The KPAI is weakened by Article 74 paragraphs (2) of the Child Protection Law that hinders the establishment of the KPAD with subjective requirements, relative norms, and absence of fair legal certainty.

They believe that the KPAD should not be a regional apparatus organization (OPD) that serves for the needs of the local government, but for the constitutional rights of children. Therefore, they argue that if is establishment is limited to fit the needs of the local government, it will contradict the constitutional mandate of Article 28B paragraph (2) of the 1945 Constitution. This, they argue, has led to ineffective or lack of infrastructure of the supervision of children’s rights guaranteed by Article 28B paragraph (2) of the 1945 Constitution. (Utami/AL/NRA)

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Constitutional Court Decides on KPAID in Child Protection Law