Constitutional Justice Enny Nurbaningsih entering the panel courtroom for the preliminary hearing of the judicial review of Law No. 35 of 2014 on Child Protection, Wednesday (9/7/2022). Photo by MKRI/Panji.

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Wednesday, September 7, 2022 | 17:22 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 35 of 2014 on the Second Amendment to Law No. 23 of 2002 on Child Protection on Wednesday, September 7, 2022. The petition No. 83/PUU-XX/2022 was filed by Leonardo Siahaan. He challenges Article 39 paragraph (3) of the Child Protection Law, which reads, “The Prospective Parents shall have the same religion as the prospective Adoptee.”

Before Constitutional Justices Enny Nurbaningsih (panel chair), Arief Hidayat, and Saldi Isra, the Petitioner argued the norm had violated the provision that “Everyone shall be entitled to form a family and continue their generation.” He felt that his constitutional right would potentially be harmed if he intended to adopt a child whose religion is different from him. He argued that the norm was against Article 28B and Article 28D paragraph (1) of the 1945 Constitution.

“The phrase ‘prospective parents shall have the same religion as the prospective adoptee’ in Article 39 paragraph (3) of Law No. 35 of 2014 does not provide a legal guarantee, [thus] is against Article 28D paragraph (1) of the 1945 Constitution,” he asserted.

Child adoption might be intended by married couples who have not been blessed with a child. Couples may also adopt children from poor families, children that are neglected, and orphaned children. It would be legally problematic and peculiar, the Petitioner said, to prioritize religion in adoption. It might hinder people who have the noble intention of caring for neglected children and orphans regardless of religion.

In the petition, the Petitioner asserted that the condition of the same religion between the child and the adoptive parents should not be an issue for child protection. While it can be applied in the child’s education, it should not be applied in the child’s health, clothing, housing, as well as their social and legal status.

The Petitioner argued that there should be a special reason for same religion in adoption and the solution if there are no prospective adoptive parents of the same religion. Adoption regardless of religion should be allowed since it is for the child’s best interest and welfare. Requirements for it should not hinder that aim.

Justices’ Advice

Constitutional Justice Arief Hidayat advised the Petitioner to prove his citizenship by a KTP (resident identity card). “In the part on legal standing, it must be stated clearly and proven. The proof would be a KTP. If the legal standing is unclear, the Court will not consider it,” he said. He also said that the Petitioner must be able to prove the constitutional impairment due to the enactment of Article 39 paragraph (3) of the Child Protection Law in that part.

“If there is nothing to show your impairment, be it actual or potential, you wouldn’t have legal standing. This is crucial. Without legal standing, the Court will not consider or examine the subject matter of the petition,” Justice Arief explained.

Similarly, Constitutional Justice Saldi Isra asserted that he had not seen explanation on the Petitioner’s constitutional impairment, “It has not been clear whether you intend to adopt a child,” he said.

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Muhammad Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/12/2022 08:03 WIB

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

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