Govt and House’s Explanations on Child Abduction by Ex-Husband
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Director-General for Legislation Asep Nana Mulyana testifying on behalf of the Government at a material judicial review hearing of the Criminal Code (KUHP), Wednesday (3/6/2024). 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), which originated from Wetboek van Strafrecht voor Nederlandsch - Indie (Staatsblad 1915 No. 732), which took effect based on Law No. 1 of 1946 on Criminal Law Regulation jo. Law No. 73 of 1958 on the Enactment of Law No. 1 of 1946 on the Criminal Law Regulation for the Entire Territory of the Republic of Indonesia on Wednesday, March 6, 2024 in the plenary courtroom. The hearing for case No. 140/PUU-XXI/2023 to present the President/Government’s and the House of Representatives’ (DPR) testimonies was presided over by Chief Justice Suhartoyo and seven other constitutional justices.

Child Custody

At the hearing, the President/Government was represented by Director-General for Legislation Asep Nana Mulyana, who said that in principle, a husband and wife who have been legally divorced are still given rights and responsibilities of their children, so both must maintain good faith for the development of children.

“Good faith in legal behavior is very important, in the implementation of which the parties to the dispute must continue to implement the court’s decision properly and, in this case, if they want to take actions related to children of divorced parents, the actions relating to children who in their custody based on a court decision should be carried out with an agreement to avoid negative impacts on the children. If the children is legally in the mother’s custody, the father as former husband must first agree with his former wife as the child’s mother,” he explained.

However, Asep continued, if the father takes actions relating to the children without an agreement with the former wife who has custody of the children, it can have a negative impact. The father’s actions that are not based on good faith, in this case the lack of agreement or even deliberate abduction, other actions, or bad intention, are unlawful. In such circumstances, the mother can report to the authorities (police) to fulfill her responsibility for the children.

Report Must Be Followed Up

The Government explained that if the reported party has been proven to have committed an unlawful act, the impact of the action by the reported party can be assessed. If there is no negative impact on the children, the action constitutes an act of disobedience to a court decision and can be categorized as a civil law violation and can be resolved based on civil law. However, if it has negative implications for the children, whether it is violence or any action that threaten the safety of the children, it can be categorized as a criminal law violation.

The Government asserted that the claim that the Petitioners’ reports were not followed up on the grounds that the biological father had committed the action was inaccurate. If the report had not been followed up, it could not be legally assessed whether the father’s action of allegedly taking the child from their biological mother had a positive or negative impact on the child. Even though the reported party was the father of the child, any report that is in the legal interest of the complainant must be followed up as the state’s effort to protect the child from actions that have unfavorable impacts and in order to prevent actions that can separate the child from their parents.

Forced Taking of Children 

The Government further explained that the act of “arbitrarily taking and fully controlling children” can be assessed from the perspective of civil law or criminal law. From the civil law perspective, if it has elements of unlawful acts in accordance with Article 1365 of the Civil Code, every act that violates the law and brings harm to others obliges the person who causes the loss, which is due to their fault, to compensate for the loss. Such a settlement is in the realm of civil suits. However, from the criminal law perspective, it must have elements of a crime as stipulated in Article 330 paragraph (1) of the Criminal Code—“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.”

If the forced taking and controlling of a child can be fully interpreted as an element of a crime of withdrawing a minor from the authority legally placed over them or from the supervision of said person, the criminal sanction in Article 330 paragraph (1) of the Criminal Code should be applicable as long as the act has criminal elements. However, if it cannot be interpreted as having an element of the crime of withdrawing a minor from the authority legally placed over them or from the supervision of said person, the article cannot be applied.

Based on this, withdrawing a minor from the authority legally placed over them or from the supervision of said person could potentially be an unlawful act, coercive act, criminal act, or act of bad faith, either intentionally and unintentionally. So, the settlement must be carried out based on legal provisions that can resolve it.

Norm Implementation

Member of House Commission III Taufik Basari said in his testimony that the Petitioners’ petition was not a matter of constitutionality but norm implementation. The House also asserted that the phrase “any person” in Article 330 paragraph (1) of the Criminal Code Wetboek Van Strafrecht voor Nederlandsh–Indie is a translation of “hij die” in Dutch. Law No. 1 of 2023 on the Criminal Code consolidates several articles both in the Criminal Code Law No. 1 of 1946 and other laws that need to be updated through deletion and rearrangement in accordance with the dynamics of community development, as well as the formulation of criminal acts, especially in the addressee section by accommodating the principles of lex certa and lex scricta and the fulfillment of justice.

He further explained that the phrase hij die” in the Wetboek Van Strafrecht voor Nederlandsh-Indie, which has been translated as “any person”, has been corrected to “any person.” Thus, the reference to the improvement of the formulation of the article in Law No. 1 of 2023 on the Criminal Code is relevant to the a quo petition. “The House fully submits to the discretion of the honorable panel of constitutional justices to consider and assess the constitutionality of the a quo article in the judicial review of the Criminal Code Law No. 1 of 1946 against the 1945 Constitution of the Republic of Indonesia,” he said.

Also read:

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

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

Govt Unprepared to Testify on Child Abduction by Ex-Husband

The petition was filed by five mothers seeking custody of their children—Aelyn Halim, Shelvia, Nur, Angelia Susanto, and Roshan Kaish Sadaranggani. They challenge Article 330 paragraph (1) of the Criminal Code, which 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  : 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, March 06, 2024 | 14:51 WIB 61