Tsania Marwa testifying as a witness for the Petitioners at a material judicial review hearing of the Criminal Code (KUHP), Monday (3/18/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Actor and model Tsania Marwa testified as a witness for the Petitioners at a judicial review hearing of the Criminal Code of 1946 (KUHP 1946) on Monday, March 18, 2024 in the plenary courtroom. Her two children have been taken away by her ex-husband.

Before Chief Justice Suhartoyo and the other constitutional justices, she revealed that her children, SMF and AS, are now ten and nine years old. After her divorce, the court gave her the custody of her children.

“I am divorced and I have custody of the children,” she said.

Despite the court’s ruling, until today she has been barred by her ex-husband from seeing the children.

“Finally, on April 29, 2021, the Cibinong Religious Court and I executed the custody ruling, which has had permanent legal force. However, the Cibinong Religious Court declared the execution failed since the respondent had not wanted to follow the custody ruling and even hindered it,” she explained.

She also said that she had been separated from her children for seven years. She claimed that during the legal process she had had a lot of expenses for legal defense, court fees, and consultation fees.

“I have overwhelming sadness [where] I did not obtain justice from the custody ruling, which has permanent legal force. Most importantly, as a mother who loves her children very much, I am not aware of their development and, of course, they lost the figure of a biological mother. During pregnancy I kept them safe and I love them with all my life until my dying day,” she lamented.

To fight the injustice, Tsania consulted with an investigator in the child supervision and protection (PPA) unit of the national police’s criminal investigation department (Bareskrim). When asked about their legal opinion of Article 330 of the KUHP on child abduction, they only explained that if the abduction is done by a parent, either the one with custody of the child or not, the article does not apply.

“At the time I didn’t know where to find justice. My lawyer said that Article 330 of the KUHP can apply. However, it cannot be implemented by law enforcement. Where is the justice in that?” Tsania 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

Govt and House’s Explanations on Child Abduction by Ex-Husband

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. 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.

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