Substantive Justice for Children Outside of Marriage As One of the Fulfillment of the Citizens Rights

BY DWI KUKUH V

INTRODUCTION

Family is a place where a child learn and develop in his life. Family is the most basic environment in shaping character and personality of a child. Children, as part of any citizen has the right of protection, especially legal protection. Legal protection as one part in providing a guarantee to the child
Children as the future generation should be nurtured, protected and maintained in order to become a person who is able to provide solutions for the nation Over tens and even hundreds of years almost children outside of marriage only have a civil relationship with her mother and her mothers family Substantive Justice in this case is very important in order to guarantee the rights of children outside of marriage

Discussion
Child is a grace given by God Almighty to a husband and wife. By law, particularly the positive law in Indonesia the birth of a child is considered legitimate if the marriage occurred during the existence of The legal relationship between a father and mother. The legal marriage should be listed under the legislation In article 2, paragraph (2) Act Number 1 Year 1974 Article 43 Paragraph (1) Marriage Act: children born outside marriage has only a civil relationship with her mother and her family.

If we observe, the condition is contrary to the Constitution, the Constitution of the Republic of Indonesia Year 1945.

Article 28B paragraph (2) of the 1945 Constitution "Every child deserves to live, grow, and develop and are entitled to protection from violence and discrimination" Article 28D paragraph (1) of the 1945 Constitution "Everyone has the right to recognition, security, protection and legal certainty of fair and equal treatment before the law"

In reality a civil relationship between the child and his father is from the first until the beginning of 2012 did not / has not been protected in the positive law, particularly the Marriage Act even though there was no deliberate attempt to cover it, when actually among them also have a blood relationship.

The Contradiction between Decision of the Constitutional Court Number 46/PUU-VIII/2010 with the legal system in Indonesia Civil Code
Non-recognition of a child outside of marriage as the party who does not have a civil relationship between him and his father in the Indonesia Civil Code and the Marriage Act has aggrieved the rights of children. Indonesia is a constitutional state, in which all activities must be based on positive law and regulations, including those related to family well. Family law in Indonesia still adhered Burgerlijk Wetboek (Indonesia Civil Code) Decission of CC X Civil Code

Terms in Civil Code

Article 283 : Children conceived in an adulterous or incestuous relationship may not be acknowledged, without prejudice to the stipulation in article 273, with regard to the latter mentioned Article 273: "Children, WHO are born of parents, between whom no marriage would have existed without dispensation granted by the Governor General, cannot be legitimized by other than an acknowledgment in the marriage certificate" Article 289 of Indonesia Civil Code which states: No child shall be permitted to investigate his or her paternity or maternity, in the events, where pursuant to article 283, no acknowledgment can take place

The impact of Constitutional Decission

Decission of Constitutional Court is bringing a utilities toward children outside of marriage as one of citizen. Implementation of Constitutional Court decisions is shown a disharmony between the decision with the legal system of Indonesia Civil Code.

Before the enactment of the Constitutional Court decision in this regard, only procedural justice that can be achieved. justice is seen as fair when it is based on positive law. Consideration beyond the written law was ignored. As a result, children's rights outside of marriage as one of the rights of citizens was aggrieved.

Protection of Children Outside of Marriage After Constitutional Court Decision Associated with Child Protection Act
the decission of Constitutional Court indirectly accommodate the existing provisions in the Child Protection Act. According to the Child Protection Act, Protection of children are all activities to ensure and protect the children and their rights to live, grow, develop and participate optimally in accordance with human dignity and values, as well as protection from violence and discrimination. In this Act, there is no distinction of legitimate children and children outside of marriage

Article 7 (1)
Every child has a right to know his parents, was raised, and nurtured by his parents own. Article 13 (1) Authority and responsibility to the father and the family of his father to provide protection to children from discrimination, exploitation, both economic and sexual abuse, neglect, cruelty, violence and abuse, injustice, and other abuses .

Article 21
The State and the government has an obligation and responsibility to respect and guarantee the rights of every child regardless of race, religion, race, class, gender, ethnicity, culture and language, legal status of children, child birth order, and physical condition and / or mental Article 45 (1) Stipulates that parents and the family are responsible for maintaining the health of children and care for the child since in the womb.

Protection of Children Outside of Marriage After Constitutional Court Decision Associated with Human Right Act

With the enactment of the decision of the Court of protection against children outside of marriage can be better guaranteed. This decission accomodate Human Right Act in Indonesia Each person is also has the right of protection of human rights and basic human freedoms, without discrimination.

Article 11 every person has the right to grow and develop properly.

Article 52 (2)
Every person have the right to be protected by parents, family, communities and nations Article 56 entitles the child to know who his parents, and the right to be raised and cared for by their parents themselves.

Substantive justice is important than procedural justice, because substantive justice is related with the condition in the society. In this case related with the future of the children. They must be protected by their environtment especially their family.

With the enactment of the Constitutional Court decision, the protection of children outside of marriage that was not previously have a civil relationship with his biological father is now more guaranteed, because the guarantee of protection for the child, the father and the family of his father is participated and play a role in carrying out the mandate of Constitution of the Republic of Indonesia Year 1945, Human Right Act and Children Protection Act. So, it will give substantive justice toward children outside of marriage.

THANK YOU