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Petitioner Leonardo Siahaan at a material judicial review hearing of the Criminal Code, Tuesday (15/6/2021). Photo by Humas MK/Ifa.

Tuesday, June 15, 2021 | 14:18 WIB

JAKARTA, Public Relations—Christian University of Indonesia’s (UKI) law students Leonardo Siahaan and Fransicus Arian Sinaga challenge Article 288 paragraphs (1), (2), and (3) and Article 293 paragraphs (1), (2), and (3) of the Criminal Code (KUHP). At a judicial review hearing of case No. 21/PUU-XIX/2021 on Tuesday afternoon, June 15, 2021, they expressed their assertion that the articles are multi-interpretive and unconstitutional.

Article 288 of the Criminal Code reads:

1. Any person who in marriage has carnal knowledge of a woman of whom he knows or reasonable should presume that she is not yet marriageable, shall, if the act results in bodily harm, be punished by a maximum imprisonment of four years.
2. If the act results in serious physical injury a maximum imprisonment of eight years shall be imposed.
3. If the act results in death, a maximum imprisonment of twelve years shall be imposed.

Article 293 of the Criminal Code reads:

1. Any person who by gifts or promises of money or goods, abuse of dominance resulting from factual relationship or deceit, intentionally moves a minor of irreproachable conduct, whose minority he knows or reasonably should presume, to commit any obscene act with him or to tolerate such act, shall be punished by a maximum imprisonment of five years.
2. A prosecution shall be instituted only upon complaint of the person against whom the crime has been committed.
3. The term referred to in Article 74 shall for this complaint respectively amount to nine and twelve years.

At the hearing chaired by Constitutional Justice Manahan M. P. Sitompul, Siahaan stated that both articles were multi-interpretive and didn’t provide clear legal certainty. He expressed his concern for his female sibling, who is vulnerable to sexual harassment of a minor and to domestic violence due to the lack of legal certainty.

“There is an issue in Article 293 of the Criminal Code, which states that a complaint can also be filed by the person against whom the crime has been committed. This constitutes an absolute litigated crime, which inhibit people who aren’t victims of sexual harassment to file a complaint to the law enforcement,” he said.

The Petitioners feel that the vague age limit in Article 288 shown in the phrase “not yet marriageable” could lead to a debate. Therefore, in their petitum, the Petitioners requested that the Court declare Articles 288 and 293 of the Criminal Code along the phrases “a minor” and “not yet marriageable not legally binding. They also requested that the Court declare Article 293 paragraph (2) conditionally constitutional.

“That is, constitutional insofar as the [clause] ‘A prosecution shall be instituted only upon complaint of the person against whom the crime has been committed’ as an absolute litigated crime be changed into a regular crime. Also, for the phrase in paragraph (1) ‘a minor’ be changed into ‘a person under 18 years of age’ and for the phrase ‘not yet marriageable’ in Article 288 of the Criminal Code be changed into ‘under 19 years of age,’” said Sinaga.

Justices’ Advice

After hearing the Petitioners’ arguments, Constitutional Justice Wahiduddin Adams advised them to study the petitions on the Court’s website. “The guidelines are the Constitutional Court Law on procedural law and the Constitutional Court Regulation No. 2 of 2021 on the procedure of judicial review,” he explained.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul asked the Petitioners to elaborate their constitutional loss due to the enactment of the a quo provisions. At the end of the hearing, he informed them that they had until Monday, June 28, 2021 at 10:00 to revise the petition.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 6/15/2021 18:27 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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