Legal Protection for Wife and Child as Consequence of Head of Family’s Criminal Imprisonment Enforcement

One area of increasing narcotics distribution and abuse was the coast of East Aceh, Aceh Province. This led to heads of household becoming prisoners. The head of household’s imprisonment directly affected their families’ welfare. The wives would be forced to replace the heads of household’s role despite their limited education, skills and capital for performing business. This research aimed to examine the protection for women (wives) and children; and the effort local government could do to legally protect these wives and children. This was juridical empirical research, which aimed to study the prevailing provisions of law what occurred factually in the community. Protecting and securing wife and child’s welfare due to head of household undergoing imprisonment was the state’s obligation through local government to prevent non-optimal fulfillment of wife and child’s rights. Protection efforts were done to satisfy wife and child’s welfare by allocating certain fund in specific-purpose aid for child’s education and welfare other than the Social Department’s BLT (cash transfer) aid. Geuchik (head of village) were to proactively coordinate with the PPPA department of East Aceh Regency in managing special aid to fulfill the wives and children’s welfare in a situation of case a quo .


INTRODUCTION
An individual's responsibility in criminal law does not only mean officially rendering sentence on him/her, but also fully ensuring that that individual has been dealt with by correct institutions for responsibility for the crime his/her has committed. Roeslan Saleh said: "Criminal responsibility cannot be separated from one or two aspects that need to be observed from philosophical perspective. One of which is justice, thus discussion on criminal responsibility presents a clearer outline. Criminal responsibility as a matter if law is closely related to justice as a matter of philosophy. 1 Chairul Huda said that criminal responsibility was individual's responsibility for crime 1 he/she committed. 2 Therefore, criminal responsibility arises as an individual commits a crime. Criminal responsibility cannot be separated from criminal act. Principally, an individual cannot be held responsible and punished when he/she does not commit any crime. Criminal responsibility is basically a mechanism developed by criminal law in response to violation of an agreement to reject a certain act. The people's rejection of an act is stated in the form of prohibition (and threat of criminal imprisonment) on the act. This is a reflection that citizens through the state have denounced such act. Thus, whoever or any person committing it will be denounced and blamed.
After undergoing a series of criminal justice process, an accused can be rendered with 3 (three) decisions, including one declaring that the accused is evidently guilty and rendered a sentence or acquittal decision. Criminal decision on an accused can be death sentence, life sentence, imprisonment, confinement or fine. Judicature is the core pillar and basis of a constitutional state to provide its people justice and medium of restoration and rehabilitation. However, in certain conditions, there are other sides that such criminal sentence affects those who are under the accused's responsibility to give protection and welfare, in case the accused is a head of household.
The drug prevalence and abuse in Indonesia currently increase to an alarming phase. One region affected by this is Aceh Province, especially East Aceh, as the transit point of entry of narcotics into Aceh. 3 The narcotics are smuggled from abroad. When a husband, as the head of household, is involved in narcotics abuse and undergoing imprisonment as the consequence of his act, his wife and child are those directly affected by the family's welfare. As the consequence, the wife must replace the role as the head of household, the backbone of family, not only in economic, but also in social, cultural and educational fields.
Gampong is on the coast of East Aceh, covering the villages including Gampong Alue Dua Muka, Gampong Baro and Gampong Aceh, Idi Rayeuk District, East Aceh Regency. In this area there are heads of household undergoing sentence due to narcotics crimes with average period above 10 (ten) years. 4 This condition has their wives and children economically neglected due to the provider's disappearance. Fulfillment of the wife and child's rights is not secured and protected. Meanwhile, the livelihood of coastal community is dominated by men, as fishermen. Thus, it is difficult for women to do this job or any other jobs that the coastal women are limited in many aspects, including from education, skill and business capital aspects. This must be of the attention and responsibility of administrators of woman and child protection to attempt fulfillment of their rights.
Legal protection means protection of the dignity and honor, and acknowledgement of legal subjects' human rights under the provisions of law from any abuse. 5 Woman and child protection will be given specifically given that women and children are vulnerable legal subjects to many aspects of life. The perception of women as weak being is certainly an understanding that is related to patriarchic cultural factor. 6 Theoretically, non-fulfillment of citizen's rights is a violation of Article 34 of the 1945 Constitution. This provision mandates enforcement of state's obligation of assuring fulfillment of poor and citizens' right to basic needs. As legal protection for the wives and children as the result of enforcement of sentence on head of household has not been fulfilled, in the author's opinion there is no synchronization between what is mentioned in the law and field facts. , discussing that the state had not performed its obligation of protecting abandonment victim-wife by husband in a household due to non-response to every report on abandonment case as mandated by the law of Eradication of Domestic Violence.
From the description above, some issues were identified: the legal protection for the wife and child as victims of enforcement of sentence on the head of household and the efforts that administrators of protection for woman and child as victims of enforcement of sentence on the head of household do? The aim of this research was to examine 1) the protection for women and children; 2) legal protection and efforts to do for the wife and child as the consequence of sentence on the head of household.

RESEARCH METHODS
This research used a juridical-empirical research method, a legal research attempting to view the law in factual sense or to observe, research how the law works in the community. 7 The theoretical framework used in the analysis was the legal protection theory. The data were collected using 3 methods: observation in East Aceh Regency, in-depth interview and documentation related to legal protection issues. The next process was data processing. 8 The researcher analyzed the data using a qualitative descriptive approach. The qualitative research paper contained the results of observation and the facts revealed in the field. 9 The data were then compared to the data collected from legislation, books, journals and interview results to be composed systematically for logical answers.

ANALYSIS AND DISCUSSION
The most underlying condition that the abandoned children experienced is termination of education and health assurance. The state as the provider and assurer of welfare of the whole people assumes the responsibility for developing and raising the abandoned children. In its position, the government has not shown its presence in fulfillment of rights as mandated by Article 34 of the 1945 Constitution and Child Protection law in the life of the nation. In the implementation of Article 34 of the 1945 Constitution on substance for small groups who are directly affected by criminal responsibility, if the perpetrator is a head of household, the effect on his wife and child is the loss of a head of family figure responsible for their living, raising and giving protection to the family.

Protection for Women and Children
Legal protection is any capacities and efforts performed consciously by any individual or governmental institution, private sector aiming to attempt for securing, controlling and fulfilling welfare pursuant to the existing basic rights. 10 Women protection is any efforts addressed to protecting women and giving a sense of security in fulfillment of their rights by giving consistent and systematic attention addressed at gender equality. 11 As a United Nations member, Indonesia has strong commitment to human rights protection, as shown with the Indonesian Government's willingness to ratify the international instruments of Human Rights. Indonesia's responsibility for protecting human rights will apply fully when the Indonesian Government agrees on and arrange regulations accommodating women's equal rights and non-discrimination in any conditions. The concrete action to do is to create national regulations by both the central and local governments. Child is a mandate and blessing from God Almighty, where the dignity and honor as complete human is inherent in. 12 With their position as the nation's next generation, children must have the broadest possible opportunities to grow and develop without any restraint with anything occurring with their family. Parents are one of the parties obliged to give child protection. Any parents are obliged to educate their children to be devout, useful for their religion, land and nation. More specifically, they need welfare in order to grow to live their life firmly. 13 The purpose of legal protection for children is to guarantee fulfillment of their right so as to live, grow and participate optimally pursuant to human's dignity and honor, and be protected from any violence and discrimination in realizing Indonesian children who are quality, of noble character and prosperous. 14 Children as a future valuable asset of a nation and country whose rights need to be well kept and protected, since it is their hands that determine the advancement of a nation. The more modern and advanced a country, the state should pay bigger attention to creating conditions conducive to children's growth and development. Children's growth and development need to be accompanied with the state's comprehensive protection. The state's obligation of administering child protection should be realized to assure that each child has the right to viability, growth and development and to protection from violence and discrimination.
Constitutionally, child protection is set forth in Article 28B of the 1945 Constitution as follows: (1) Every person shall be entitled to establish a family and to further descendants through legal marriage; (2) Every child shall be entitled to viability, to grow up, and to develop as well as be entitled for protection against violence and discrimination.  Legal protection for children can be defined as the effort to legally protect them on the fundamental rights and freedoms of children 16 and various interests related to children's welfare. Therefore, the issues on legal protection for children cover very broad scopes, such as: 1. Protection for children's freedom; 2. protection for children's basic rights; and 3. legal protection for all of children's interests related to welfare.

Efforts to Seek for Protection for Wife and Child as the Result of Sentence on Head of Household
According to Emile Durkheim, crime is a normal symptom in every community characterized with heterogeneity and social development, thus it impossible to be eliminated. Radeliff Brown has defined crime in association with responsibility that crime is deemed as a habit that encourages enforcement of criminal sanction. From juridical concept, crime means human's behavior that is punishable under criminal law. 17 In the last decade Indonesia have been more incessantly fighting and eradicating narcotics crimes, even if still Indonesia is one of the highest rankings in narcotics cases, not to mention the more common international-level smugglings that prevention is difficult. 18 The narcotics crimes eradication is implemented through legal enforcement related to three factors of legal system: legislation (substance), law enforcing institution (structure) and legal culture). In this case, it is to implement legal culture on law enforcers, in which they need to be skillful, honest, dedicated and of assured dedication. 19 One type of sanctions prevailing for narcotics criminals is imprisonment. Criminal imprisonment is a sentence in the form of restriction of the movement freedom of a convict by confining him/her in a place named Correctional Facility (LAPAS), obligating him/her to comply with all regulations and orders prevailing in relevant Correctional Facility. 20 Finally, narcotics issues are also related to domestic stability. This issue also signifies that family does not serve well in the illegal item's spread. 21 Sentencing individual committing such crime or causing such illegal condition, in criminal law, is called Criminal responsibility. It is known in Dutch as "torekenbaarheid", and "criminal responsibility" or "criminal liability" in English, which is a series of processes done on violator in According to Kant, the sentence received by an individual is an integral part of the crime he/she commits, not a logical consequence of a social contract. Kant even rejected the view that sentence is intended for perpetrator's goodness or community goodness. Kant only received the only reason that sentence is rendered only because relevant perpetrator has committed a crime. This opinion of Kant was based that "humans must build a moral order on the basis of moral imperative autonomy for it to humanize the world and humans. The imperative moral that Kant mentioned was unconditional moral. For example, "a borrowed item must be returned". It is only a "must", not depending on any other consequence or factor beyond such must. 23 From the background of criminal sentencing that Kant developed born the retributive theory on which sentencing purpose was based emphasized on perpetrator's responsibility to the victim. 24 According to Leonard Orland, meanwhile, the purpose of criminal sentencing is not only as retaliation against perpetrator, but as a means of achieving useful goal of protecting the community towards community's welfare. This theory raised criminal sentencing goal as the means of prevention, both special prevention addressed to perpetrator and general prevention addressed to the community.
Based on the description above, criminal responsibility by perpetrator shall at least aim at deterrence and prevention. Convict placement in Correctional Facility is deemed as a medium for perpetrator's moral education, as perpetrator's moral and spiritual reflections. Convicts need moral and religious teachings in order to renew their belief and view, for their tendency to do crime to be in controlled.
Finally, criminal responsibility focuses on perpetrator, victim and community aiming at order and welfare, while there are small group who is directly affected by perpetrator's criminal responsibility, that if the perpetrator is a head of household, the small group is the family comprised of wife and child. The impact on the wife and child is loss of the figure of head of family responsible for earning a living, raising and giving protection for the family.
In the research on the coastal area in Aceh, there were some families whose heads of household were undergoing a sentence due to committing narcotics crimes. 25 Based on the table, observation was conducted through interview with Secretaries of Gampong Alue Muka Dua O, Gampong Aceh and Gampong Baro Villages on the life of the families of the prisoners and the accused above after they were left for undergoing their respective sentence. They certified as follows: 1. AZ bin Zainal (39 years old) had a wife and two children, a female (13 years old) and a male (10 years old), both still at school. As the husband was imprisoned, economically the wife was aided by her family and BLT (cash transfer) from the Social Department. The aid was also tentative, as per the family's capacity. 26 2. SA bin Zakarian (33 years old) had a wife and one 3-year old daughter. As the husband was imprisoned, the wife and the child lived with the aid of Samsul's family as per their capacity. 27 3. KK bin Kamarud Zaman (38 years old) had a wife and three children, two females and one male, the three still at school. The family life as the husband was imprisoned was with their families' aid and BLT (cash transfer) from the Social Department. 28 4. AZ bin Zainal (39 years old) had a wife and four children, two females and two males, the four still at school. The family life was temporarily with the aid of the families and of BLT (cash transfer) from the Social Department.
5. SY bin M. Juned (49 years old) had a wife and three sons who were still at school. As the husband was imprisoned, the wife's economy was aided by BLT (cash transfer) from the Social Department, and working odd jobs to earn the children a living. 29 Based on the description of the facts above, there was no child having their school terminated, but such conditions might potentially lead to it, as the wives in the families were housewives and they at the end claimed for a divorce and consequently they assumed the full responsibility to full their needs, while the jobs on the coastal area were dominated by men as fishermen. In fact, the children lost their father figures both in love and protection aspects. Such family life could also be categorized of the poor, which would affect the children's growth and development and viability. It is in such scope that the children need legal protection, since besides as family asset, they are also the nation's asset. (2) The State, Government, and Local Government supervise administration of Child Protection.
The Government as the administrator of child protection in this case only waits for report from the community to provide maximum protection, since the government usually has had aid program such as PKH and other aids. 31 The author argues that on the basis of such provisions, the state should take care of and responsible for the children's welfare in the cases above and need to make certain efforts, such as allocating certain fund in managing special aid for the children's education fee and welfare other than BLT (cash transfer) from the Social Department, in consideration that they are directly affected by their fathers undergoing a sentence. It is true that the fathers have committed a crime and been responsible for it, but the children are not to be responsible for such crime. This conforms to the non-discrimination principle of the Convention on the Rights of the Children and the mandate of Article 21 paragraph (1) and (2) that: (1) The State, Government and Local Government are obligated and responsible for respecting fulfillment of Children's Rights without discrimination over tribe, religion, race, group, sex, ethnicity, culture and language, legal status, birth order, and physical and/or mental conditions.
The constraint was that the East Aceh area was quite large, thus the information was not given smoothly.

CONCLUSION
As a conclusion of this discussion, husband's responsibility as perpetrator of criminal act directly affects the wife and child's welfare as they lose their provider. Fulfillment of the wife and child is not secured and protected. The coastal community earns a living as fishermen, thus it is difficult for the wives to do, while they have many limitations from education, skill and business capital aspects. Legal protection and the efforts need to be given to the wives and children as the result of enforcement of sentence on the heads of households as the government's responsibility, especially local government for the children's welfare. Local government can allocate certain fund in specific-purpose aid for the children's educational fee and welfare other than the Social Department's BLT (cash transfer), in consideration that the children have directly experienced the impact of their father's undergoing sentence. Child protection is set forth in the 1945 Constitution of the Republic of Indonesia, Convention on Children's Rights, Law of Children's Welfare, Law of Human Rights, and Law of Child Protection. These children can be classified into minority group (certain conditions) and Children as victims of stigmatization out of labeling related to their parents' conditions. Therefore, geuchik (heads of villages) are suggested to actively coordinate with the PPPA Department of East Aceh Regency for aid in fulfillment of the wives and children's welfare in a situation of case a quo.