Review

NAMA : ELSA NURUL FATCHIYAH

KELAS : HKI D

NIM : 1902016140

REVIEW HPII

This article discusses interreligious marriage phenomenon in Central Java particularly in in Surakarta, Semarang and Jepara where policies of stakeholders on judicial system as well role of demographic officials and religious leaders heavily influence each other. Interestingly, the policies of State Court as authorized institution to legalize interreligious marriage vary among those three. The Surakarta State Court receives petition and allows interreligious marriage in contrast to Semarang and Jepara which deny this kind of petition. This difference comes from several factors, namely understanding of Indonesian marriage laws, religious understanding and role of religious leaders. In the context of state and civil society relations, interreligious couples whose petitions are rejected consider it unfair, while those with accepted petition also deem it the same since they consider their marriage as a civil marriage only which the state does not wish. 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. The Rights of Civil Society Mahfudh25 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." 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 29Kaelan, Negara Pancasila,. 390. 30Ninan Koshy, Religious Freedom in Changing World (Geneva: WCC Publication, 1992),. 22. 31Said Agil Husin Al-Munawar, Fiqh Hubungan Antar Agama (Jakarta: Ciputat Press, 2005),. 35-36. State Marriage and Civil Marriage al-Ihkam: Jurnal Hukum dan Pranata Sosial, 15 (1), 2020: 1-30 11 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 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. 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 marriageInterreligious 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 59See The Constitutional Court of the Republic of Indonesia. State Marriage and Civil Marriage al-Ihkam: Jurnal Hukum dan Pranata Sosial, 15 (1), 2020: 1-30 25 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. 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. It is different from what happens in Semarang and Jepara. In Semarang, interreligious couples cannot perform any marriage settlement and it has forced a temporarily religious subjugation of one spouse to his/her couple’s religion for the sake of a legalized marriage. Jepara also experiences the same, even there is a model of interreligious marriage performed in two religious rituas, although they only register one religious marriage to the government. 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