The Constitutional Court Affirms That Biological Parents Who Take Forcing Children Can Be Convicted

ILLUSTRATION BETWEEN

JAKARTA - The Constitutional Court (MK) emphasizes that biological parents who take children forcibly without rights or permits can be punished, because these actions are included in Article 330 paragraph (1) of the Criminal Code (KUHP).

The statement was conveyed by Constitutional Justice Arief Hidayat when reading out the Court's considerations in Decision Number 140/PUU-XXI/2023. The case is related to the judicial review of Article 330 paragraph (1) of the Criminal Code which is considered to have caused legal uncertainty.

"If the taking of children by biological parents who do not have custody of the court's decision is carried out without the knowledge and permission of the parents of the custody holder, especially if it is carried out with coercion or threats of coercion, then the action can be categorized as violating Article 330 paragraph (1) of the Criminal Code," said Arief as quoted by ANTARA, Thursday, September 26.

This judicial review case was requested by five mothers, namely Aelyn Hakim, Shelvia, Nur, Angelia Susanto, and Rosan Kaish Sadanggani. The petitioners questioned the phrase anyway' in Article 330 paragraph (1) of the Criminal Code.

According to the petitioners, based on their personal experience, the phrase Whoever it is' in the article has the potential to be interpreted that the father or biological mother of the child cannot be held accountable for the accusation of kidnapping his own biological child.

The five applicants are divorced mothers and have child custody based on the court's decision. However, they were no longer able to meet their children because their father was suspected of taking their child away.

When the petitioners reported their ex-husband's actions to the police using Article 330 paragraph (1) of the Criminal Code, their report was not accepted or did not show any progress on the grounds that the child was his own biological father.

Based on this, the petitioners asked the Constitutional Court to replace each person without exception the biological father or mother of the child.

Related to this, the Court explained that the phrase anyone' in the article is tested is a line of words from the Dutch hij die which refers to anyone or anyone who commits an act is punishable by a crime. This means that the phrase contains the meaning of everyone.

"Thus, in the context of Article 330 paragraph (1) of the Criminal Code, the phrase 'Whoever it is' by itself also includes the biological father or mother of the child because the word does contain the meaning of everyone," said Arief.

According to the Constitutional Court, in applying Article 330 paragraph (1) of the Criminal Code, there must be evidence of the will to take the child without the permission of the parents of the custody holder actually came from the perpetrator, including if the perpetrator was the child's biological parent.

"There should be no doubt for law enforcers, especially police investigators, to accept any reports regarding the application of Article 330 paragraph (1) of the Criminal Code, because the elements of anyone who is automatically intended are everyone or anyone without exception, including in this case, are the biological parents of the child," said Arief.

The Constitutional Court assessed that Article 330 paragraph (1) of the Criminal Code is a provision that has been clearly and firmly regulated, so that the provisions in question do not need to be given or added other meanings.

According to the Court, adding a new meaning to Article 330 paragraph (1) of the Criminal Code, including as requested by the applicants, would actually position the norms of the articles to be different on their own or anomalous among all the norms in the Criminal Code that use the phrase people who'.

Therefore, the Constitutional Court stated that the arguments of the petitioners were not legally justified in their entirety. Thus, the Constitutional Court rejected the request.

"To try, reject the petitioners' requests in its entirety," said Chief Justice of the Constitutional Court Suhartoyo reading out the verdict.

However, Constitutional Justice M. Guntur Hamzah has a different opinion (dissenting opinion). According to Guntur, the Court should be able to partially grant the petitioners' petition because in fact, the norm of Article 330 paragraph (1) of the Criminal Code has raised the interpretational uncertainty of law enforcers.