Fighting
for Recognition: Plaintiffs argue interpretation of 1974 Marriage Law is
inconsistent with Constitution and Pancasila
Jakarta Globe, Kennial Caroline Laia & Yustinus Paat, Sep 05, 2014
 |
| If plaintiffs prevail at the Supreme Court, couples of different religions may soon find it easier to have their marriages legally recognized in Indonesia. (JG Photo/Fajrin Raharjo) |
Jakarta.
Five people filed a petition for a judicial review at the Constitutional Court
on Thursday that, if successful, would legalize interfaith marriage in
Indonesia.
The
petitioners argue that the 1974 Law on Marriage, which requires all marriages
in Indonesia to be conducted in accordance with the respective religious
beliefs of the bride and groom, violates the Constitution and principles of
Pancasila.
“We feel
that our constitutional right can potentially be harmed by Article 2(1) of the
law, which states that a marriage is only legitimate if it is conducted
according to one’s religion and belief,” Anbar Jayadi, one of the plaintiffs,
said on Thursday after a preliminary hearing.
Anbar
argues that the clause has been interpreted by officials to mean that all marriages
inconsistent with the parties’ stated religious affiliations — as interpreted
according to the officiants’ understanding of that religion’s tenets — are
illegitimate and unlawful.
“The clause
has therefore created legal uncertainty for those who want to get married in
Indonesia because implementation of religious law is highly dependent on the
interpretations of different individuals or institutions,” Anbar said.
The
plaintiffs’ petition may be helped by a 1989 Supreme Court decision, Andy Vony
v. The State , which found the 1974 Marriage Law does not apply to interfaith
marriages.
The case
involved the a Muslim woman and Protestant man. The Supreme Court held that
“the Marriage Law did not regulate marriages between partners of different
religions” since the 1974 law only repealed colonial laws to the extent they
were inconsistent. Because the woman sought to register her marriage at the
Civil Registry Office, the court allowed it to be formalized as a non-Muslim
marriage.
However,
the 1989 Supreme Court decision failed to clear the way for interfaith
marriages, as many attest.
“The
experience of having an interfaith marriage in Indonesia is really infuriating
and bothersome. Why? Well, I am a Catholic and my husband is Muslim. We
couldn’t register our marriage in the Religious Affairs Office (KUA) because
they oblige everyone who wants to register to be a Muslim — which is not fair,”
Antonia Timmerman said.
Antonia is
a reporter for Investor Daily, which is affiliated with the Jakarta Globe.
“We
couldn’t register our marriage in the KUA, so we went to the Civil Registration
office, which was also difficult. They asked for a ‘Certificate of Baptism for
the non-Catholic or non-Christian’ [presuming conversion],” she said. “So, my
husband signed a letter that stated he was in the process of studying my
religion even though he did not intent to convert.”
A woman who
asked to be identified only by her initials, A.D., shares a similar experience.
“My husband
and I agreed to pretend that I would convert to his religion solely for the
purpose of getting a marriage certificate. But in fact, I’m still practicing my
own religion,” she said. “I believe it’s a country’s duty to issue regulations
protecting its citizens, but as an individual I also have the right to choose
to keep my religion. Therefore I lied,” she said.
University
of Indonesia sociologist Johannes Frederik Warouw said that the regulation of
marriage in Indonesia is premised on its citizens’ protection.
“The
regulation is created to ‘protect’ society in terms of living their lives
peacefully, without having difficulties that stem from interfaith marriage,” he
told the Globe on Friday.
“Problems
that could come from interfaith marriage are marriage certificate and recognition
of children from the marriage, especially when it comes to social institutions.
Many will question it,” he said. “However, the regulation becomes quite
discriminative, as we know that there are also many people who marry people
from other religions. People should start to look things differently and
critically. However, we also couldn’t blame people for being not open-minded
about it.”
Legal
expert Frans Winarta said the 1974 Marriage Law is inconsistent with the state
ideology, Pancasila.
“At one
time, a marriage was considered already legal by only registering it to the
Civil Registration Office. But now with the unclear and burdensome law it’s
become so complicated. The law forces people to look for loopholes, marrying
overseas and returning home to register their marriage. So, what’s the
use of the law?” he said.
“The law is
clearly discriminative and irrelevant with our nation’s current condition. It
should be eliminated because it doesn’t reflect Pancasila,” he said.
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