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VOL. 9, ISSUE 1 (2023)
Implications of the decision of the Indonesian constitutional court number 21/PUU/XIX/2021 on the the criminal complaint of articles of child molestation
Authors
Haposan Sahala Raja Sinaga, Leonardo Olefin’s Hamonangan Siahaan
Abstract
The regulation of the article on child sexual abuse in the Indonesian Criminal Code is still categorized as an absolute criminal’s complaint (klacht delict), while in the Indonesian Child Protection Law, the article on child molestation is an ordinary offense (gewone delict). The existence of two different substance of the application of the offense between the Criminal Code and the Child Protection Act becomes a question of which offense law is used against child molestation? Although the principle of lex specialis derogat legi generalis applies, it does not mean that the Criminal Code is no longer valid, the Criminal Code can be used if in a legal event the elements of the sentence are fulfilled. This issue was submitted for judicial review of the law to the Indonesian Constitutional Court against Article 293 paragraph 2 of the Indonesian Criminal Code with case register number 21/PUU-XIX/2021. The research was conducted using normative legal research methods. This research method will analyze the main issue of complaint offenses in this child molestation article according to the legal provisions in the applicable laws and regulations including those in court decisions (in this case the decision of the Indonesian Constitutional Court). The result of this research is that there is a legal problem when the Indonesian Constitutional Court's decision Number 21/PUU-XIX/2021 states that Article 293 paragraph 2 of the Criminal Code is unconstitutional and basically states Article 293 paragraph 2 of the Criminal Code as a relative criminal’s complaint. The implementation of this decision has caused legal confusion in the community, this is because when talking about child molestation offenses in Article 76E of the Indonesian Child Protection Law it is an ordinary offense meaning that reporting is not only limited to reports from victims, parents, guardians or their proxies but the reporting can be done by the community so that the legal process cannot be revoked. The difference in the offense between the decision of the Constitutional Court which states it is a relative complaint offense and the offense of child molestation in Article 76E of the Indonesian Child Protection Law is an ordinary offense so that it becomes a question which offense is applied and whether the ordinary offense in Article 76E of the Child Protection Law is no longer valid? Therefore, in responding to this problem, the decision originating from the issuance of the Indonesian Constitutional Court has had legal force which is considered correct and valid so that there is no other choice or rationale for not implementing the decision of the Constitutional Court. Based on the juridical rule that the decision of the Constitutional Court is final and binding, it applies to everyone.
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Pages:142-148
How to cite this article:
Haposan Sahala Raja Sinaga, Leonardo Olefin’s Hamonangan Siahaan "Implications of the decision of the Indonesian constitutional court number 21/PUU/XIX/2021 on the the criminal complaint of articles of child molestation". International Journal of Law, Vol 9, Issue 1, 2023, Pages 142-148
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