Jakarta – Indonesian Legal Aid Foundation (YLBHI) Director Muhammad Isnur has criticised the Draft Criminal Code (RKUHP) saying it could trigger a rise in the number of child marriages in the future.
This concern emerged after highlighting Article 417 Paragraph (2) which makes perzinaan (adultery or premarital sex) a complaint offence which can be reported to the police by a husband, wife, parents and children of the parties concerned.
Isnur believes that complaints based on a claim by parents has the potential to increase the practice of child marriage in Indonesia.
"Because this article will have the potential to give authority to parents to legitimise reporting their children if there are concerns [over premarital sex]", said Isnur during discussion on critical notes on the RKUHP on Friday May 27.
Based on a 2019 version of the Draft Criminal Code, Article 417 Paragraph (2) reads, "Criminal acts as referred to in Paragraph (1) shall not be prosecuted unless they are based on a complaint by a husband, wife, parent or child".
This is different from the current Criminal Code (KUHP) which only allows for a husband or wife to report an act of adultery followed by a demand for divorce. This is stipulated under Article 284 Paragraph (2) which reads,
"Shall not be prosecuted except if it is based on a complaint by the husband or wife who has been tarnished, and when for them Article 27 is valid, within a time frame of three months followed by a request for a divorce or a separation of man and wife without being divorced because of that reason also".
Yet according to research by the group Coalition 18+, 89 percent of requests submitted for dispensation of marriage are because of concerns by parents. The research was conducted in Tuban regency, Bogor and Mamuji in 2013-2015.
Isnur warned that based on United Nations International Children's Emergency Fund (UNICEF) data for 2017, Indonesia is in 7th place in the world for the highest number of child marriages. Not only that, based on Council of Foreign Relation data, Indonesia is in 2nd place in ASEAN.
Aside from the potential to increase the practice of child marriages, Isnur believes that the formulation of the offense is unclear saying that parents should no longer have the right to report an act of adultery or premarital sex if children are already adults or are married.
"This raises the question of what about parents who have adult children, can a report by parents also be prosecuted", asked Isnur.
"What about also if a child of the parents is already married, do the parents still have the authority to report this as a criminal act?", he added.
He also did not forget to highlight the fact that under the current KUHP a complaint of perzinaan can only be made by the couple which is impacted upon.
"This regulation was intended to prevent criminal law from encroaching too far into the private sphere, and prevent criminal law intervening in personal relationships, including family relationships", said Isnur in conclusion.
Perzinaan is just one of several controversial articles which have been agreed upon in the RKUHP. Other articles include those on insulting the president, cohabitation and abortion. (cfd/chri)
[Translated by James Balowski. The original title of the article was "YLBHI Kritik Pasal Zina RKUHP Berpotensi Picu Perkawinan Anak".]