HPII Firdaus Akhirus 1902016152

NAMA : Firdaus Akhirus Zamansyah

    Kelas   : HKI D3

    NIM    : 1902016152

    MATKUL : Hukum Perdata Islam Indonesia

State Marriage and Civil Marriage The Role of State Policy on Interreligious Marriage in Central Java

 

Concepts on Legal Policy and Legal Justice

      The word “policy” etimologically originates from English word “policy” or Dutch word “politiek”. Terminologically, policy means a set of concepts or principles which form the basis for doing a job, leadership and how to behave.11 Thus, the phrase of legal policy is synonymous with political law.

         Mahfudh furthermore says that political law is also a legal policy or legal direction that the state needs to enforce it in order to achieve its purposes by either creating a new law or replacing the old one.

      Foucault also explains that the legal and judicial systems are areas that are definitely associated with domination and power through conquest. According to him, law should not be demonstrated with established legitimacy, when in fact it is always a process of conquest.

   However Rawls said that a just law must be based on justice and a sense of justice for the public, while obeying the law determines the extent to which laws, institutions and policies are fair. Not only normative, justice is also at the procedural level of justice.

    Marriage in Indonesia before the birth of the Marriage Law Number 1 of 1974 is regulated in several laws, namely religious law, customary law and Western law. During the reign of the Netherlands, marriages were arranged in several rules according to the following groupings. First, Europeans follow the Civil Code (Burgerlijk Wetboek / BW). Second, Chinese in general also participate in BW with the exception of Civil Registration and pre-marriage events. Third, Arabs and Easterners outside China follow their own customary laws. Fourth, Indonesian indigenous peoples follow customary law in which Christians follow the Christian, Javanese, Minahasa and Ambon Marriage Deed (Ordinance Huwelijk Christen Indonesiers Java, Minahasa an Amboina / HOCI) based on Staatsblad No. 74 in 1933. Fifth, non-people from the previous class / group follow the rules of mixed marriage.

   Prior to the provision of marriage in the Marriage Law Number 1 of 1974, interfaith marriages had legal legitimacy based on Staatsblad 1898 no. 158. In the Marriage Law, it is clear that there are no provisions     regarding interfaith marriage because the law itself only recognizes and only states the validity of interfaith marriages as referred to in Article 2 paragraph (1).

   The state appears to allow interfaith marriages because they must not be legally registered. Unfortunately, interfaith marriage is only recognized as an administrative marriage registered with the Population and Civil Registry Office instead of a marriage that is legalized as a legally valid marriage even though some religious understandings allow this type of marriage.

   The policy for organizing interfaith marriages is very much influenced by how and to what extent stakeholders understand or consider the provisions regarding interfaith marriage. In this view, Mahfudh argues that state policy does affect the color of the existing law. Likewise, Birkland explained that among its characteristics, policies are made based on the public interest.

   There are several procedures that must be done to be able to register the marriage. Article 2 paragraph (1) of Law No. 1 of 1974 concerning Marriage is indeed an assistance that "Marriage is legal, carried out according to the law of each religion and belief". Meanwhile, Article 8 letter f of the Marriage Law states that marriage is prohibited if religious regulations are prohibited as well as other applicable regulations.

   If the validity of the marriage can be ascertained, then the next mandate of the Marriage Law must be carried out, namely the registration of marriage.

   According to Article 35 of the Adminduk Law, marriages determined by the court must be reported. Described in the elucidation of Article 35 letter a of the Adminduk Law, a marriage determined by the court is a marriage between people of different religions.

   The reporting procedure is regulated in Article 34 of the Adminduk Law. Reporting must be made no later than sixty days from the date of marriage. Then, based on this report, the civil registration official recorded it in the Marriage Certificate Register and issued a Marriage Certificate. Meanwhile, residents who are Muslim reported it to the religious affairs office (KUA).

   This article stipulates that only interfaith marriages that can be registered at the civil registry office are non-Muslim. However, it is not automatic that interfaith marriages involving Muslim residents can be registered at the KUA. Because, this is regulated in Article 2 paragraph (1) Government Regulation no. 9 of 1975 concerning the Implementation of Law Number 1 of 1974 concerning Marriage.

    PP No. 9 of 1975 states explicitly that marriages that can be registered at the KUA are those that are carried out in Islam. This means that interfaith marriages, if carried out by court order, are registered at the civil registry office.

   marriage registration is absolutely essential. This is because there are many consequences if this obligation is not fulfilled. He revealed that unregistered marriages can have an impact on the status of children and also involve inheritance issues.