Statement on Constitutional Court Decision 46 / PUU-XIV/2016

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Press Release of Komnas Perempuan

Komnas Perempuan’s View on Constitutional Court Decision 46 / PUU-XIV/2016

Jakarta, 15 December 2017

The session of the Constitutional Court for Case No. 46 / PUU-XIV / 2016 concerning the Application of a Material Test against Article 284, 285, 292 of the Criminal Code, in its hearing on 14 December 2017, has decided to reject the petition for judicial review and said that the provisions of the Criminal Code were tested constitutionally, because the principal issue of the petition was not legally grounded. At the end of the legal considerations, the Constitutional Court declared that the norms of articles 284, 285 and 292 which were petitioned for judicial review, are not contradictory with the 1945 Constitution. Whether or not the articles are supplemented (as the Petitioners prefer), the Constitutional Court is of the opinion that it is the authority of the legislator through a criminal policy. Therefore, the idea of reform offered by the Petitioner should be submitted to the legislator, in this case the Government and the House of Representatives (a fuller explanation can be studied in DECISION No. 46 / PUU-XIV / 2016).

Komnas Perempuan, as one of the Related Parties in the Petition of the Material Test appreciates the Decision of the Constitutional Court, and holds:

First, the Decision of the Constitutional Court has prevented the potential for the criminalization of persons whose marriage, for one reason or another, cannot be registered (either because of the difficulty accessing marriage recordings, or because their marriage is not recognized by the state), children / adolescents exposed to sexual activity because of the weakness of the education system, and mainly female victims of sexual violence. The legal considerations of the Constitutional Court in this case are a form of commitment in providing protection and enforcement of the constitutional rights of citizens of a state institution guarding the establishment of the Constitution in Indonesia. Komnas Perempuan invites the public to see clearly that the Constitutional Court Decision in Case Number 46 / PUU-XIV / 2016 is a form of state responsibility in providing safeguards to the right to security and protection from the threat of fear to do or not to do something that is a human right, as guaranteed in Article 28G (paragraph 1);

Second, the Constitutional Court Decision has made room for a complete change to the definition of rape contained in Article 285 of the Criminal Code. Komnas Perempuan hopes that this Constitutional Court Decision can encourage the House of Representatives and the Government to immediately discuss the Draft Law on the Elimination of Sexual Violence, and to ensure the formulation of sexual violence and the definition of each of the sexual assault offenses including Rape, endorsed as Komnas Perempuan has suggested and formulated in the Manuscript The Draft Law on the Elimination of Parliamentary Sexual Violence, which takes into account gender injustice as the root cause of sexual violence including rape. This is to open access to full justice for rape victims and to stop impunity for perpetrators;

Third, the Constitutional Court Decision has affirmed the absence of legal vacuum in the criminal prosecution. Article 292 of the Criminal Code has regulated the protection of minors from obscene acts committed by adults. Meanwhile, provisions to protect adults from obscene acts committed by other adults can be found in Article 289 of the Criminal Code. In observance of Komnas Perempuan, the current formulations of Articles 292 and 289 of the Indonesian Criminal Code are used by victim aids to assist women victims of sexual violence in obtaining justice. In some cases, Articles 292 and 289 are also used by Investigators to ensnare offenders in cases of rape that are difficult to prove;

Fourth, in the view of Komnas Perempuan, the Constitutional Court has played its role in committing to its responsibility to protect the guarantee of citizens’ constitutional rights, and state officials should commit to this as well. Currently the draft amendment of the Criminal Code is being compiled by the Government and the House of Representatives, including the articles relating to this Constitutional Court Ruling. Therefore, Komnas Perempuan reminds the Government and the House of Representatives that the amendments to the Articles relating to this Constitutional Court Decision follow the legal principles which have been suggested by the Constitutional Court, namely the importance of paying attention to 4 basic matters in establishing policies related to criminalization:

1. Whether the act is disliked or hated by the public because it is harmful or may harm a victim;
2. Is the cost of criminalization balanced with the results to be achieved. This means that the costs of legislation, supervision, and law enforcement, as well as the burden borne by victims and perpetrators themselves must be balanced with the situation of legal order to be achieved;
3. Will it add to the heavy burden of law enforcement officers, which is unbalanced or obviously incapable of carrying out the capabilities it possesses;
4. Whether such actions obstruct the ideals of the Indonesian nation and pose a danger to society in general.

Fifth, based on the Religious Experts presented in the Constitutional Court, the spirit of religious values and divine light actually requires the meaning of adultery to be narrowed, as seen in the conditions provided by religious experts to impose the punishment of adultery instead of expanding it. A thorough reading of the religious teachings will lead to that conclusion. Extending and facilitating the practice of punishment for adultery is contrary to the spirit of religious teachings.

To follow up on the decision, Komnas Perempuan will strengthen the consolidation with the entire network to:

1. Guard the discussion of Book II of the Amendment of the Criminal Code, especially the Chapter on Crime Against Decency, in order to refer to the legal principles that have been formulated by the Constitutional Court Judge in the Consideration of Case Law No. 46 / PUU-XIV / 2016;
2. Encourage the Ratification on the Elimination of Sexual Violence with the perspective of the victims, as the draft submitted by Komnas Perempuan and the Network of Victims Companion Organizations (Forum Pengada Jasa), to the House of Representatives.

Contact persons:

Azriana, Head (0811 6724 41)

Khariroh Ali, Commissioner and Head of Constitution and National Laws Working Group (081284659570)

Sri Nurherwati, Commissioner and Legal Reform and Policy Subcomission (081381448370)