Struggling for Child Custody, Five Mothers Question Child Abduction by Ex-Husband

Five mothers with legal counsel Virza Roy Hizzal (left) at a preliminary hearing for the judicial review of the Criminal Code (KUHP), Thursday (11/2/2023). Photo by MKRI/Fauzan.

JAKARTA (MKRI) — The Constitutional Court (MK) held a hearing to review the phrase “any person” in Article 330 paragraph (1) of the Criminal Code of 1946 (KUHP 1946) on Thursday, November 2, 2023 in the plenary courtroom. The Petition No. 140/PUU-XXI/2023 was filed by five mothers—Aelyn Halim, Shelvia, Nur, Angelia Susanto, and Roshan Kaish Sadaranggani—seeking custody of their children.

Article 330 of the Criminal Code paragraph (1) reads, “Any person who with deliberate intent withdraws a minor from the authority legally placed over him or from the supervision of the person who exercise said supervision over the minor with competence, shall be punished by a maximum imprisonment of seven years.”

At the hearing, legal counsel Virza Roy Hizzal said that the petitioners all had something in common: after divorcing their husbands, they had custody of their children. However, they are deprived of this right because their ex-husband forcibly took their child. Petitioner Aelyn Halim revealed that she did not know where her daughter, Arthalia Gabrielle, was because she had been hidden by her ex-husband. This incident began on August 15, 2020 when Arthalia was 2 years and 8 months old. Aelyn’s ex-husband and Arthalia’s biological father took Arthalia when Aelyn was outside her home.

Aelyn reported the incident to the police but her report was not accepted because the kidnapper was her daughter’s biological father.

The same thing happened to Shelvia. Her ex-husband falsified the child’s identity to make a passport without her permission and took her abroad.

A similar situation happened to Nur. Her second child was kidnapped by her ex-husband in late December 2022. Until the hearing, the suspect had not been arrested and there was no clarity about the whereabouts of her second child.

Next, Angelia Susanto’s ex-husband, a foreign national, kidnapped their child in January 2020. Angelina had not found her child’s whereabouts.

Lastly, after Roshan Kaish Sadaranggani’s child was taken by her ex-husband, she tried to report it to the Indonesian Child Protection Commission (KPAI) and filed a lawsuit to the district court. However, until the hearing she had not have access to her child.

Criminal Sanctions

Virza said the state must act when there are violations of children’s rights. Separating parent and child and restricting a child’s access to their parents has a negative impact on their growth and development, which is not the realm of private law but the public domain, in this case criminal law.

“There are sanctions in accordance with Article 330 paragraph (1) of KUHP for anyone who violates it without any exception, including the biological father or mother of the child. However, with an interpretation that considers biological fathers or mothers cannot be seen as perpetrators or legal subjects as the phrase ‘any person’ in Article 330 paragraph (1) of KUHP has violated the principles of the rule of law in Article 1 paragraph (3) of the 1945 Constitution,” he said.

The Petitioners asserted that the phrase “any person” in Article 330 paragraph (1) of KUHP should apply to everyone, including the child’s biological father or mother, as a legal subject. There should be no exceptions that give absolute power and authority to the father or mother and exclude them from any lawsuit if there is a violation of the rights of the child. The fulfillment of children’s rights is part of human rights and the state have responsibility to provide protection, supervision, and law enforcement in order to achieve welfare for children. Therefore, the state has the authority to take action against parents who violate children’s rights.

In their petitum, the Petitioners request that the Constitutional Court declare the phrase “any person” in Article 330 paragraph (1) of KUHP, which was derived from the Wetboek van Strafrecht voor Nederlandsch - Indie (Staatsblad 1915 Number 732), which was later enacted under Law No. 1 of 1946 on Criminal Code jo. Law No. 73 of 1958 on the Entry into Force of Law No. 1 of 1946 on Criminal Code for the Entire Territory of the Republic of Indonesia, unconstitutional and not legally binding insofar as it is not interpreted to mean “any person, without exception the biological father or mother of the child.”

Justices’ Advice

Responding to the Petitioners’ petition, Constitutional Justice Daniel Yusmic P. Foekh said that in the petition there were still some flaws, for example the subject of the material judicial review should be the Constitution of the Republic of Indonesia.

“You only wrote it as a ‘law,’ whereas the correct one is the Constitution of the Republic of Indonesia. Then in the petition until the petitum, [write the request that the law] is declared unconstitutional, the articles are no longer necessary. Next, you could revise the petitum like that,” he explained.

Meanwhile, Constitutional Justice Arief Hidayat said that in the subject matter and posita, the fact that it is not merely a matter of applying the law could be described further and more clearly. “This is more about the application of the law. The word ‘any person’ turns out to have multiple interpretations. This is a constitutional norm concerning the multi-interpretation, which does not cause legal uncertainty,” he said.

The panel informed the Petitioners that they would have 14 workdays to revise their petition and to submit it to the Court’s Registrar’s Office no later than 15 November 2023 at 09:00 WIB.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Tahlitha Laela/Yuniar Widiastuti (NL)

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.

Thursday, November 02, 2023 | 15:26 WIB 133