One of the Petitioners, Angelia Susanto, at the ruling hearing for the material judicial review of the Criminal Code, Thursday (9/26/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the material judicial review petition of Article 330 paragraph (1) of the Criminal Code (KUHP) filed by five mothers seeking custody of their children—Aelyn Halim, Shelvia, Nur, Angelia Susanto, and Roshan Kaish Sadaranggani. They challenged the phrase “any person” in said article.
The ruling hearing for Decision No. 140/PUU-XXI/2023 on Thursday, September 26, 2024 in the plenary courtroom. “[The Court] rejects the Petitioners’ petition in its entirety,” said Chief Justice Suhartoyo delivering the verdict alongside the other eight constitutional justices.
In its legal opinion delivered by Constitutional Justice Daniel Yusmic P. Foekh, the Court said the child’s best interest is one of the principles contained in the Convention on the Rights of the Child, which is accommodated in Law No. 23 of 2002 on Child Protection. The elucidation to Article 2 of Law No. 23 of 2002 states that the child’s best interest is in all of the actions concerning children carried out by the Government, society, legislative bodies, and judicial bodies. The child’s best interest must be the main consideration. For this reason, it serves as a very important guide for judges in deciding divorce cases in which there is a dispute over child custody because children are vulnerable parties who become victims in the event of divorce.
Therefore, when the custody of a child is given to one parent, it does not mean that the other parent has no rights and is free from responsibility, because child custody concerns physical custody as children are not yet able to care for themselves both physically and mentally. Meanwhile, legal custody, which is related to parental rights and responsibilities, remains inherent in child-rearing. So, if the father cannot fulfill his obligations relating to the child’s living costs and education, the court can determine that the mother will also bear these costs. In fact, in the event that the father or mother is misbehaving or grossly neglecting their obligations, they can be deprived of their parental authority, without deprivation of their financial obligations.
Joint Custody
Various provisions on child custody are geared toward joint custody based on the child’s best interest. Thus, even though the court gives the physical custody to one parent, the other parent should not be kept from meeting with the child. In this case, without intending to assess the legality of the provision in question, the Constitutional Court asserted that in the Supreme Court Circular Letter (SEMA) No. 1 of 2017, the Constitutional Court’s religious chamber stipulates that the ruling on child custody (hadlanah) must include the obligation of the hadlanah right holder to give child visitation right.
In their legal opinion, the judges must also consider that denying parents who do not hold hadlanah rights child visitation can be used as a reason to file a lawsuit for revocation of hadlanah rights. This means that a parent who does not hold custody rights should not be kept from meeting with their child as long as the child visitation is agreed by the parent holding child custody. Conversely, a parent who holds custody rights may not prohibit child visitation by the other parent.
Norm Implementation
Furthermore, in other legal considerations delivered by Constitutional Justice Arief Hidayat, the Court stated that the issue where the Petitioners’ police complaints were not accepted and that their ex-spouses were not declared law offenders in Article 330 paragraph (1) of the Criminal Code are not within the Court’s jurisdiction. However, law enforcers, especially police investigators, should accept all reports relating to Article 330 paragraph (1) of the Criminal Code since “any person” refers to any person without exception, including the child’s biological parents.
Justice Arief emphasized that the Petitioners’ problems lie with the implementation of Article 330 paragraph (1) of the Criminal Code. The Court needs to emphasize that in divorce cases where there is a dispute over child custody, the best interests of the child—the most vulnerable party due to divorce—must be protected. One of the principles in child protection in addition to the principles of non-discrimination, of survival and development of children, and respect for children’s opinions, is the principle of the child’s best interest. This principle explains that in every action concerning children, what is best for the child must be the main consideration. Thus, the child’s best interest can be interpreted as the principle underlying child protection. In this case, the benchmark for the child’s best interest proper education for self-development, worship according to their religion, health services, social interaction, and humane treatment for the child, as well as love, nurture, and affection.
Child Abduction by Parent
In the case of child abduction by any of the biological parents, in addition to the child being the victim, parent who is forcibly separated from their child by the other parent can also be a victim, especially psychologically. There is an adequate legal mechanism available for child abduction when there has been no divorce, which serves not only to protect the child, but also the parents. This implies the notion that there is both psychological and psychological relationships between parents and biological children, who should not be separated from one another. As such, in the event that child abduction happens, the child’s interest takes precedence and criminalization of one of the child’s biological parents who violates Article 330 paragraph (1) of the Criminal Code is the last resort in law enforcement (ultimum remedium). Moreover, in the current criminal paradigm, such matters can be resolved through restorative justice.
Reinterpretation Unnecessary
After full and comprehensive consideration, the Court asserted that Article 330 paragraph (1) of the Criminal Code is clearly and unequivocally regulated (expressive verbis), so it does not require additional interpretation. The phrase “any person” includes everyone without exception, including the child’s biological father and mother. Within the limits of reasonable reasoning, the Petitioners’ request for reinterpretation would actually make the a quo norm an anomaly within the Criminal Code where there is the phrase “any person” that actually means “everyone” or “anyone” without the need for reinterpretation. Reinterpretation could in fact narrow the range of legal subjects that become the addressee of the norm and other articles in the Criminal Code that use the same phrase.
In addition, adding the element “including everyone without exception” in Article 330 paragraph (1) of the Criminal Code as desired by the Petitioners would potentially lead to legal uncertainty because if the provisions of other criminal norms have a specific legal subject, it can lead to multiple interpretations if a new interpretation is not first made by the Court.
Thus, the Court concluded that Article 330(1) of the Criminal Code has provided legal protection for children and fair legal certainty as stated in Article 28B paragraph (2) and Article 28D paragraph (1) of the 1945 Constitution. Thus, according to the Court, the Petitioners’ arguments were unreasonable according to the law in their entirety.
Dissenting Opinion
The decision was not unanimous. Constitutional Justice M. Guntur Hamzah had a dissenting opinion. “I, Constitutional Justice M. Guntur Hamzah, am of the opinion that the Court should grant the Petitioners’ petition partially,” he said.
He explained that many cases of child abduction by one of their parents, usually by the biological father, were not handled by law enforcement officials in casu the police. As such, in order to uphold law and justice, the Constitutional Court should play its role as the protector of the citizens’ constitutional rights, in this case biological mothers who hold custody naturally or legally, from child abduction committed by the biological fathers. This is not only for the sake of providing legal certainty, but also a sense of security for children and their court-sanctioned legal guardians.
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
Fighting for Custody, Tsania Marwa Testifies in Court
Expert: Child Abduction by Parent Is a Crime
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.
Thursday, September 26, 2024 | 15:19 WIB 87