Activist Questions Ambiguous Provisions on Child Exploitation

The judicial review hearing of the Child Protection Law, Wednesday (10/23/2022) to examine the Petitioner’s petition. Photo by MKRI/Ilham W. M.

Wednesday, November 23, 2022 | 14:18 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the formal and material judicial review of Law No. 35 of 2014 on Child Protection (UUPA Law) on Wednesday, November 23, 2022. The petition No. 113/PUU-XX/2022 was filed by Merry, an activist from North Lampung. She challenges Article 76H of the Child Protection Law, which reads, “Anyone shall be prohibited from recruiting or utilizing Children for military purposes and/or other purposes and from leaving children without life protection.”

At the hearing chaired by Constitutional Justice Enny Nurbaningsih, counsel Gunawan Pharikesit asserted that the Petitioner felt harmed due to the formation of the Child Protection Law, which she believes to be neither firm nor clear (lex certa and lex stricta) due to the ambiguous sentences or other parts of the article. This resulted in her being harmed in her effort to develop herself and her social environment and the lack of acknowledgement of personal rights, recognition, guarantees, protection, and fair legal certainty and equal treatment before the law.

Article 76H of the Child Protection Law led to the Petitioner being declared a person of interest by the North Lampung precinct police. She was also declared a defendant by the public prosecutor of the North Lampung District Prosecutor’s Office at the District Court of Kutabumi, North Lampung.

“Article 76H of Law No. 35 of 2014 especially the phrase “and/or other purposes” is in violation of Article 28E paragraph (3), 28D paragraph (1), and 28F of the 1945 Constitution,” Gunawan said.

He asserted that Article 76H of the Child Protection Law has violated the constitutional right to maintain life in a democracy as guaranteed in Article 28E paragraph (3) of the 1945 Constitution, which reads, “Everyone shall be entitled to freedom to unite, gather, and express opinions.” The phrase “and/or other purposes” in Article 76H of the Child Protection Law has also violated the constitutional right to express opinions in public, thus violates the Petitioner’s constitutional right to acknowledgment, protection, fair legal certainty, and equality before the law.

Based on those assertions, in the petitum, the Petitioner appealed to the Court to grant the petition in full and declare the phrase “and/or other purposes” in Article 76H of the Child Protection Law unconstitutional.

Justices’ Advice

In response to the Petitioner, Constitutional Justice Suhartoyo advised the Petitioner to revise the petition following the required format.

“There is a systematic [format] to a [judicial review] petition. If you would like to see the factual examples, find the Constitutional Court decisions that granted [the petitions],” he said.

He also explained the format of a judicial review petition and asked the Petitioner to elaborate the phrase that she questioned.

Before concluding the session, Justice Enny announced that the Petitioner had 14 workdays to revise the petition until Tuesday, December 6, 2022.

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/24/2022 19:37 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.

Wednesday, November 23, 2022 | 14:18 WIB 203