Journal Resume Al Ihkam : State Marriage And Civil Marriage: The Role Of State Policy On Interreligious Marriage in Central Java

 

Journal Resume Al Ihkam : State Marriage And Civil Marriage: The Role Of

State Policy On Interreligious Marriage

in Central Java

 

NAME            : ABDILLAH MUSTAQIM

NIM                : 1902016139

CLASS           : HKI – D3

HPII

Introduction

Confirming validity of a marriage, Article 2 paragraph (1) of Marriage Law No. 1 of 1974 states that "marriage is lawful in accordance with religion and belief respectively".1 Furthermore, the implemented regulation of marriage law called the Implementation of Regulation (Peraturan Pelaksanaan/PP) No. 9 of 1975 Article 10, paragraph (2) explains that "marital procedure is done according to the law of each religion and belief". This provision applies to all religions in Indonesia except Islam since it combines the law with the provisions of Compilation of Islamic Law (Kompilasi Hukum Islam/KHI). For Muslims, Article 4 of Compilation of Islamic Law indicates that their marriage can be valid "if it is done according to Islamic law in accordance with article 2, paragraph (1) of Law No. 1 of 1974 on Marriage.” Although Compilation of Islamic Law does not normatively mention the terms of Muslims for the groom and the bride, Indonesian ulemas in general require that both of them must be Muslim although some of them allow Muslims to do interreligious marriage with non-Muslim.

Normatively, the Compilation of Islamic Law prohibits interreligious marriage both between a Muslim man with a nonMoslem woman (article 40 KHI) and a Moslem woman with a non Moslem man (article 44 KHI). Likewise, the Indonesian ulema mostly require bride and groom to be Muslim, 4 although some were of the opinion that Muslim and non-Muslim marriages could be performed based on the permissible marriage of Muslim men and women of the book. Even administratively, Muslim and non-Muslim marriages are Such circumstances, according to Ratno Lukito,8 indicate the fact that since 1974, there was no definitive law on marriage between men and women of different religions in Indonesia and consequently, there exists legal vacuum condition. Relating to this, Mark Cammack9 commented that in Indonesia, there is no legalized marriage for different religion so that this kind of marriage cannot be performed in Indonesia.

The Rights of Civil Society

Mahfudh says that neither Islamic nor secular, Indonesia is a state based on Pancasila (Five Pillars). It is thus impossible to govern rules on civil society by Islam or other religion. In reality, however, the state regulates issues related to religious communities, including the issue of marriage. It, for instance, regulates the validity of marriage based on provisions of official religion in Indonesia, which is limited only to six religions. The problem arises when the policy of interreligious marriage which is not regulated in Indonesian marriage law seems contradictory to the national constitution, namely the 5th pillar of Pancasila on "social justice for all Indonesian people." Furthoremore, it is also contrary to the Constitution of 1945 section 28B which mentions the rights of citizens to establish a family and Law No. 39 of 1999 on Human Rights article 10 paragraph (1) which writes that "every person has the rights to build a family and continue their descendants through legitimate marriage and free will."

This becomes both problematic and contradictive because the state provides freedom and rights for every citizen to build a family and continue their descendants while on the other side, this permission is constrained by the provisions of the marriage law. It is also contradictive because according to the concept of Hans Kelsen on the Stufen theory,26 law should be a hierarchy, where the legal provisions of marriage law must follow the provisions from the higher existing law. It becomes more contradictive since the state only considers a marriage valid when its settlement is performed and registered under one of the official religions namely Islam, Catholicism, Protestantism, Buddhism, Hinduism and Confucianism, which in fact is a legal product of governments laden with political interests. According to Yudi Latif, Moh. Hatta and Supomo formulated the concept of the state and its obligations in providing protection to the citizens and their principal rights including civil and political rights such as national and social freedom (article 29 of the amended Constitution of 1945) and rights to get equality before law and government (article 27 paragraph(1). In fact, in addition to both rights, every citizen also has rights to social, economy and culture as accommodated in the Act of 1945. It also includes rights to work and to make a good living (article 27 paragraph 2), to defend the state (article 31 paragraph 1), to get education (article 31 paragraph 1), as well as economic rights and welfare (for the poor) in article 33 and 34.

The Regulation on Interreligious Marriage in Indonsia

According to Marriage Law No. 1 of 1974, "marriage is a physically and mentally bond between a man and a woman as husband and wife with intention of building a family or household that is happy and eternal based on the Divinity of the One God".

Marriage in Indonesia, before the birth of Marriage Law No. 1 of 1974, was regulated in several laws namely religious law, customary law and the West law. During the reign of the Netherlands, marriage was arranged in some rules according to the following grouping. First, Europeans followed the Civil Code (Burgerlijk Wetboek/BW). Second, Chinese in general also followed BW with the exception of the Civil Registration and the events before marriage. Third, Arabs and Orientals outside Chinese followed their own customary law. Fourth, indigenous Indonesian followed customary law in which Christians followed Marriage Act of Christian, Java, Minahasa and Ambon (Huwelijk Ordinance Christen Indonesiers Java, Minahasa an Amboina / HOCI) based on Staatsblad No. 74 of 1933. Fifth, people who belong to none of the previous classes/groups followed mixed marriage rules.

The provisions of mixed marriage were stipulated in Staatsblad 1898 No. 158. Its first chapter mentioned that "mixed marriages are marriages between people in Indonesia which are under different laws". Thus, mixed marriages are between two persons who are in Indonesia yet subjected to different laws including interreligious marriage as described in article 7 paragraph 2 that "differences of religion, race or origin are not an impediment to marriage."

The article 66 of Marriage Law obviously opens the opportunity to interpret some provisions that have not been explicitly regulated such as interreligious marriage. Since it has not been regulated, as the opinion of Bayu34, the provisions relating to mixed marriages based on the religious difference still follow Staatsblad 1898 No. 158, arguing that there is no other provisions including Marriage Law No. 1 of 1974.

Concerning to this, Ratno Lukito35 claims that the exclusion of interreligious marriage in the Marriage Law No. 1 of 1974 is a legal vacuum condition. It turns out that a Supreme Court’s verdict, using human rights considerations, accepted a petition of interreligious marriage filed by Andy Vonny and Andrianus Pertus Hendrik Nelwan. As described in the legal considerations, the Supreme Court accepted their petition on interreligious marriage considering the constitutional rights of all citizens described in Article 27 of the Constitution of 1945 that every citizen is equal before the law.

Therefore, before the provisions of marriage on Marriage Law No. 1 of 1974, interreligious marriage has had its legal legitimation based on Staatsblad 1898 no. 158. It is obvious that Marriage Law has no provision on interreligious marriage since the law itself just recognizes and only declares the legitimation of intrareligious marriage as stated on Article 2 paragraph (1). Therefore, it makes sense if some argue that old provision such as Staatsblad 1898 No. 158 still has its own legitimation to justify interreligious marriage in Indonesia.

Administration System and Its Mechanism towards Interreligious Marriage in Indonesia

Law No. 23 of 2006 on Demographic Administration describes the systematic order of people’s important events, one of which is the event of marriage mentioned in Article 8 and 9 in addition to Article 34 and 35 which clarify the provisions of marriage registration. Article 34 states as follows: (1) A valid marriage under the provisions of law must be reported by the resident to the official agency where the marriage takes place 60 (sixty) days on the latest from the date; (2) Based on the report referred to number (1), Civil Registry officer records it on Marriage Act’s register and publishes its Quoted Marriage Act. Afterward, Article 35 states that "the marriage registration referred to in Article 34 shall also apply to: (a) marriage determined by the court.

It is obvious from the above explanation that the critical events including marriages of couples outside Moslem communities are listed in the Office of Population and Civil Registry as described in the Article 8 of Law No. 23 of 2006. However, the elucidation of Article 9 paragraph (1) letter b mentions that the recording is performed after the civil records receives Court decision indicating that the person concerned has got a State Court’s deicision.

Regarding to administrative registration in accordance with Indonesian Government Regulation No. 9 of 1975 on the implementation of Law No. 1 of 1974 on Marriage Article 2 which describes the marriage registration, Civil registry’s tasks are as below:

(1)   To register marriages of those who perform its settlement according to Islamic teaching before the Registrar Officer based on Law No. 32 of 1954 regarding the record of Marriage, Divorce and Refer.

(2)   To register marriage of those who perform its settlement according to their religion or belief (other than Islam) before the Registrar of Marriage Officer at the Office of Civil Registry as meant by various legislation on marriagge registration.

Meanwhile, mechanism of interreligious marriage registry in Indonesia as well as the provisions of Article 21 of Marriage Law No. 1 of 1974 are as follow:

1)      Should the officer of marriage registrar find prohibition against the marriage according to the law, then he/she will refuse to accept the petition.

2)      In case of rejection, the registrar will give a written statement of refusal accompanied by refusal reasons based on the request of one party who wishes to enter into the marriage.

3)      By getting a letter of rejection mentioned above, the parties whose marriage plan is rejected have rights to apply to the Court at the area in which the marriage registrar rejected their submission

4)      The court will shortly examine the case and will provide decision whether to strengthen the refusal or give an order so that the marriage can take place.

5)      This provision loses its power when the barriers causing the rejection disappear and as a consequence, the party who wants to get marriadge can repeat the notice of their intent

The Policies of Implementing Interreligious Marriage

The implementation of interreligious marriage in Central Java, namely, Surakarta, Semarang and Jepara regency has different experience, especially in terms of providing legal license. This is mainly because different legal understanding of the law enforcers on interreligious marriage. At Surakarta State Court, after the issuance of Marriage Law No. 1 of 1974, interreligious marriage was still prohibited.

It recently changed after ratification of the Law No. 23 of 2006 in which the Court received totally 39 petitions of interreligious marriage from 2007 to 2013. The petition itself is firstly submitted when the applicants register the marriage to the Civil Registry Office. After the Office checks it, the applicant will typically get a rejection letter because of interreligious marriage prohibition based on the provisions of article 21 of Marriage Law No. 1 of 1974.

The rejection letter from the Office of Civil Registry then becomes one of requirements for applying permission/license to the State Court. Furthermore, the Court examines the petition from either its formal or material requirements namely compliance with requirements, reason on the applicant and the spouse’s will to build interreligious marriage, and explanation of witnesses from each family to ensure that both parents have allowed and approved their marriage plan. At first, the judge always advises the couples to get marriage with those with same religion by explaining the risks of interreligious one. However, if a couple has already had strong willingness to perform interreligious marriage, the judge can order a new examination to continue.

However, when there found a lack of one of the conditions, the license application of interreligious marriage will not be granted. This happened to a case of petition submitted by LNW to Surakarta State Court with Number of Registration: 375 / Pdt.P / 2013 / PN. Ska. The Court refused his petition by reasoning that there was one incomplete requirement namely a rejection letter from the Office of Civil Registry. However, after LNW filed again and fulfilled its missed requirement, finally the Court granted him license of interreligious marriage at the Decision of Surakarta State Court No. 408 / Pdt.P / 2013 / PN. Ska.

Shortly after the provisions of Law No. 23 of 2006 on the Demographic administration ratified, from 2007 to 2013, all applications for interreligious marriage licenses submitted to the State Court of Surakarta were granted but one as mentioned before. Besides, there was a petition filed twice since its first submission was withdrawn by the applicant and graned on Decision of Surakarta State Court No. 65 / Pdt / 2012 / PN.Ska about revocation. However, after the applicant filed back and fulfilled all terms and conditions, the request was granted on the Decision of Surakarta State Court No. 237 / Pdt.P / 2012 / PN.Ska.

Interreligious Marriage: Between State Policy and Rights of Civil Society

A state, according to Rawls’ concept, should ideally give a sense of justice for its people not only in normative level but also in the procedural ones. Thus, when the freedom to practice religion has been normatively specified in the Indonesian constitutional law, namely Article 29 of the Constitution of 1945, the issue of interreligious marriage should have been regulated in detail in Marriage Law No. 1 of 1974. Policies of state stakeholders then exacerbate this condition by considering uncomprehensive understanding on the provisions of interreligious marriage.

The reality in Semarang and Jepara implies that the chosen policies have not yet reached the level of normative justice and procedural fairness. It appears on how the normative understanding of interreligious marriage has not been combined and balanced with other provision, especially Article 2 paragraph (1), Article 21 and Article 66 of Marriage Law No. 1 of 1974. Similarly, there found no effort to correlate the issue of interreligious marriage with the context of religious freedom as enshrined in Article 29 of the Constitution of 1945. Seemingly, the policy makers have failed to acknowledge relevancy of some related provision.

In the process of implementing interreligious marriage policy, this normative and narrow point of view greatly affects the implementation of interreligious marriage policy. Rejection on the license application of the Court clerks obviously shows how the policy makers procedurally give no sense of justice to the citizens who apply for interreligious marriage. Because of such policy, the Office of Civil Registry automatically will not record the marriage because there is no permission from the State Court. In fact, each Civil Registry Office in Jepara and Semarang has recorded only one case of interreligious marriage with licenses granted by the State Court outside both regions.

It is clear, therefore, that the understanding of interreligious marriage in Indonesia should not only rely on an article only while ignoring other relevant ones. It needs a broader point of view beginning from understanding on the fifth precept of Pancasila,“social justice for all Indonesian people”, the Constitution of 1945, to the provisions of the laws and its related rules.

Among others, such legal consideration can be found in the State Court Decision No. 90 / Pdt.P / 2011 / PN.Ska as follow:

1)      Religious differences do not constitute a ban to build a marriage as mentioned at Article 8 (f) Marriage Law No. 1 of 1974 as well as Article 35 paragraph (a) of Law No. 23 of 2006 on Demographic administration which writes that the State Court has the authority to examine and decide on the issues of interreligious marriage;

2)      A citizen has the rights to maintain his/her religious belief, including to build households with spouses of different religions in accordance with Article 29 of the Constitution of 1945 concerning the freedom to believe in faith on one God Almighty;

3)      The Marriage Law No. 1 of 1974 Article 8 (f) governs the prohibition of marriage yet it does not explicitly regulate an interreligious marriage;

4)      The Marriage Law No. 1 of 1974 Chapter XIV Article 66 states: "For marriage and everything related to marriage is based on this Law; therefore, by the enactment of this Law, the provisions stipulated in the Civil Code, HOCI Stbl. No. 74 of 1993 (Marriage Ordinance for Indonesian Christian), Mixed Marriage Regulation (Regeling op de gemengde Huwelijke Stbl No. 158 of 1898) and other regulations governing marriage as long as has been regulated in this Law, are declared to be invalid;

5)      The No. 5 of general explanation of the Marriage Law No. 1 of 1974 says "to ensure legal certainty, the marriage and everything associated with it prior to the enactment of this law and is run according to the existing law, is considered valid. Similarly, if this law does not give any regulation on any specific thing, the existing provisions apply itself right away;

6)      The Court considers that because the Marriage Law No. 1 of 1974 does not explicitly regulate an interreligious marriage in which the applicants insist on maintaining their religious beliefs, then the provisions of Stbl: 1898 No. 158 on the Rules of Mixed Marriage can be applied in the petition of the applicant;

 

 

Source of : http://ejournal.iainmadura.ac.id/index.php/alihkam/article/view/2689/1866