Five Mothers Revise Petition on Criminal Code on Child Abduction by Ex-Husband

Legal counsel Virza Roy Hizzal conveying the revisions to the petition at a panel judicial review hearing of the Criminal Code (KUHP), Wednesday (11/15/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The Constitutional Court (MK) held another hearing to review the phrase “any person” in Article 330 paragraph (1) of the Criminal Code of 1946 (KUHP 1946) on Wednesday, November 15, 2023 in the plenary courtroom. The Petition No. 140/PUU-XXI/2023 was filed by five mothers seeking custody of their children—Aelyn Halim, Shelvia, Nur, Angelia Susanto, and Roshan Kaish Sadaranggani.

The agenda for this hearing was the examination of the revised petition. At the hearing, the Petitioners’ legal counsel Virza Roy Hizzal said that previously the touchstones in the petition were too many. In the revised petition, the Petitioners focus on only two touchstones, the first one is Article 28B paragraph (2) of the 1945 Constitution. “Why is that important? Because it states that every child has the right to live, grow up, and develop as well as the right to protection from violence or discrimination. In our opinion, this is important to be the touchstone of the Criminal Code norms that we are challenging. The second touchstone is the principle of legal certainty in Article 28D paragraph (1) of the 1945 Constitution, which states that everyone has the right to recognition, guarantee, protection and fair certainty, and equal treatment before the law,” he explained.

Another revision was the writing of the 1945 Constitution of the Republic of Indonesia, which was previously written incompletely. “We have formalized the writing, the 1945 Constitution of the Republic of Indonesia. We have corrected it,” said Virza.

A description of the subject matter of the petition has also been added. Four countries have been set for international law comparisons in this case.

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

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 preliminary hearing on Thursday, November 2, 2023, 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.

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.

The Petitioners assert 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.” 

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.

Wednesday, November 15, 2023 | 16:31 WIB 136