Nur Khafidhin Review hpii

 Nama : Nur Khafidhin 

 Mata Kuliah : Hpii

NIM : 1902036145 

 Tugas : Review  

In the context of state's obligation to provide legal rights to its citizens, the void of interreligious marriage regulation becomes a problem since it contrasts to article 27 of the Constitution of 1945 which concedes that every citizen is equal before the law. Similarly, Article 28B of the Constitution states that "everyone has rights to build a family and continue their descendants through a legal marriage." It also contrasts to Law No. 39 of 1999 on Human Rights in article 10 paragraph (1) which describes "everyone has the rights to build a family and continue their descendants through legitimate marriage and free will". This contoversy even leads to a judicial review of Law No. 1 of 1974 Article 2 paragraph (1) submitted to the Constitutional Court with registration number 68/PUU-XII/2014, although the Constitutional Court finally rejected the petition on the reason that the Marriage Law does not violate the Constitution.

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. 

As Subekti explains, the birth of the Marriage Law No. 1 of 1974 symbolized the beginning effort of government to create uniformity of marriage law and eliminate its diversity. However, he believes that the provisions of Marriage Law has not set uniformity as stipulated in Article 66 on "closing provision" which states that "the rules contained in the Civil Code, the Marriage Ordinance for Christian People of Indonesia (Staatsblad 1933 No. 74) and Regulation of mixed marriage (Staatsblad 1898 No. 158) are no longer valid in so far as regulated in the Marriage Law No. 1 of 1974.” 

The implementation of interreligious marriage in Central Java is different from one region to another. In Surakarta, the implementation begins when a couple from different religion applies for registering interreligious marriage to the Civil Registry Office. The Office then provides a rejection letter as the basis for the couple to apply for interreligious marriage license to the State Court. After the Court granted license to perform the marriage, then the Civil Registry Office will record that interreligious marriage. 

There also occurs a model of marriage that does not follow the religion of husband or wife; they choose another religion (outside what they both believe) and rituals they deem as the most convenient one. Conclusively, in addition to the different interpretation to the rules of interreligious marriages in Indonesia, those interreligious marriage policies closely relate to the religious understanding of its policy makers and law enforcers.

 See the decision of Judicial Review on reviewing Law No. 1 of 1974 on Marriage towards the Constitution of 1945 on case No. 68/PUU-XII/2014.

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