Response on the Effort to Legalize Government Regulation in Lieu of Law (Peraturan Pemerintah Pengganti Undang-Undang – “PERPPU”) No. 1 of 2016 on Child Protection as a Law.
On Wednesday, 12 October 2016, the House of Representatives (“House”) will continue to discuss PERPPU No. 1 of 2016 on Child Protection within its plenary session.
On the last 23 August 2016, the House has postponed the ratification of PERPPU No. 1 of 2016 on Child Protection, which should have been was originally enacted into law in the previous plenary session. In the discussion, all factions were not yet agreed to enact the PERPPU into law due to a number of reasons. Seven factions had agreed to enact the PERPPU into Law, while the other three factions have not yet voted. The three factions are the Democratic Party faction (Partai Demokrat), Gerindra Party (Partai Gerindra) and the Prosperous Justice Party (Partai Keadilan Sejahtera). The House also provides the government an opportunity to complete the discussion results from the level one of the special committee leaders to be scheduled back in the next plenary session. In the last July, Commission VIII of the House has agreed to bring PERPPU No. 1 of 2016 on Child Protection to the second level or the plenary session.
Previously, on PERPPU No. 1 of 2016 on Child Protection, the President of the Republic of Indonesia, Joko Widodo, stated that sexual offences against children is an extraordinary crime, because such crime may threaten and endanger the lives of children in Indonesia. This regulation is one of the efforts made by the Indonesian government to protect the children from sexual crime. Sexual offences are very dangerous according to the government.
With the basis that the number of sexual violence against children cases are increasing, the Government considers that the sexual offences against children has increased significantly, which threaten and endanger the lives of children, damaging private life and child development, as well as disrupt the sense of comfortability, tranquillity, security and public order. Consequently, the government considered that criminal sanctions that had been imposed to the perpetrators of sexual violence against children failed to give deterrent effect and unable to prevent sexual offences against children comprehensively.
Using the PERPPU: Basis to use PERPPU in Exigent and Emergency Situations is actually not fulfilled
PERPPU is usually issued by the executive to address an Emergency Situation. In addition, PERPPU must be assessed carefully by multidisciplinary or interdisciplinary approach. In issuing PERPPU No. 1 of 2016, the government has not been able to demonstrate to the public about the urgency that occur to the children who experienced sexual violence.
In Article 22 paragraph (1) of the 1945 Constitution of the Republic of Indonesia (“1945 Constitution”), it is stated that “in case of emergency situation, the President has the right to set Government Regulations in Lieu of Law (PERPPU)”. Referring to this statement, it is clear that PERPPU is a government regulation, but it functions as a law. Thus, PERPPU is one of the legal instruments that can be set merely by the President without requiring the involvement of the House.
Role of the Parliament in the context of PERPPU is stipulated in Article 22 paragraph (2) and (3) of the 1945 Constitution, which asserts that “government regulation must be approved by the House in future sessions” and “if it did not get approval, the government regulations shall be revoked.”
However, it appears that the government issued PERPPU No. 1 of 2016 is far from the requirements to issue a PERPPU (i.e. in exigent and emergency situation), but because of the interest of several groups. The government is not ready to take a good solution, as if the government is seeking a decision that failed to give positive impact to the victims of sexual offences against children
Ran Away From Responsibility to the Victims
The government has said that a sexual offence against children is an extraordinary crime. Because of extraordinary crime, then the government should carry out their duties and obligations to the maximum in order to provide justice, protection and rehabilitation to the victims, as well as fulfil the rights of the victims, including the right to obtain compensation (either for the victims or their families). The Alliance assessed that the PERPPU does not provide comprehensive protection for children Indonesia, it is obvious from the content of the PERPPU that, where none of the clauses governing the children that became a victim.
The government issued the PERPPU in a hurry without considering inputs from the public. There are still pros and cons associated with the government’s plan to include castrated sanction in the PERPPU. There are many reasons why people do not agree with the government’s plan to issue the PERPPU, including the government is too busy to the sexual offenders with the aim to give a deterrent effect, but the government forgot to provide justice, protection, both physically and psychologically, for the victims and fulfilling the rights of the victims after the events that have been experienced by them.
We observed that in the PERPPU that have been issued, there is no single article that outlines about the victims, particularly provision on the protection and fulfilment of the victims’ rights.
Lack of Transparency
The Government is not transparent and seem in a hurry in making and issuing the PERPPU, without involving the participation of society, especially the victim and the companion who is always working to provide assistances to the victims. The Government seems to close the public’s access to know the contents of the PERPPU.
The government issued the PERPPU due to the pressure and insistence from several groups who want the government to response various cases of sexual offences against children that occurred. The government seems failed to consider the situation in the community, where people still discussing about the government’s plan to issue the PERPPU, there are still pros and cons, especially about the contents of the PERPPU.
PERPPU is not discussed openly; it is to inform you that the discussion about the PERPPU is just for limited people. Public can only obtain the information related to the PERPPU from the media associated with the government’s plan to publish the PERPPU on Castration, which was renamed to the PERPPU on Child Protection. The government did not involve the public to provide input to the PERPPU.
Always Punishment for the Perpetrators: Death Penalty and Chemical castration should be Rejected
The PERPPU which have been issued by the government only set up punishment for the perpetrators, while matters relating to the victim do not become a priority of the government.
The PERPPU contains 1/3 (one third) heavier criminal punishment, death penalty, life or imprisonment of at least 10 (ten) years and a maximum of 20 (twenty) years in prison, with some of the terms that have been determined in the PERPPU.
The PERPPU also establishes additional 1/3 (one third) sanctions from the crime that has been carried out, if such offence is conducted by a recidivist or by people who are supposed to protect children from crimes.
On the one hand, the imposition of death penalty for sexual offenders will make the rehabilitation of the offender failed to be reached, including the rehabilitation of victims
The PERPPU also establishes additional criminal sanction, in form of announcement of the perpetrator’s identity as well as chemical castration and installation of electronic detection devices. The government issued the PERPPU without considering the impact to the perpetrators, particularly with regard to the application of chemical castration to the perpetrators. Some health experts have expressed their opinions on the application of the chemical castration, which will give negative impact to the injected body
Therefore, based on the explanation above, we inform the House and the Government on the enactment of the PERPPU that:
- The House should not facilitate the enactment of the PERPPU which proposed by the Government. The PERPPU should be rejected.
- The House should urge the government to issue regulations that protect the victims’ rights, including the right to obtain comprehensive compensation from the state.
- The House should urge the government to provide a rehabilitation process to the highest extent maximum for the victims of sexual offences against children nationwide through all remedies available.
