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

 

Nama            : Izzul Mutho’

NIM              : 1902016138

Kelas             : HKI D3

Makul           : Hukum Perdata Islam Indonesia

Tugas Review Jurnal “State Marriage and Civil Marriage: The Role of State Policy on Interreligious Marriage in Central Java” oleh Anthin Lathifah

Concept of Legal Policy and Legal Justice

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.

Civil Society Rights

Human rights in society and nation therefore include: freedom of religion, from education and teaching, thought both orally and in writing, owning a house or place of residence, association and association, rights to protection and legal equality, equality of constitutional rights, protection of self and property. objects, individual freedoms that the state cannot exercise. fight over it, and the right to have an equal position in government. According to him, both the majority and the minority have the same rights and obligations as citizens and there should be no groups that are liked and discriminated against. In conclusion, it seems that the right to marry is fundamental for citizens because it is part of the civil rights that should be guaranteed by the state.

Regulation of Marriage between Religions in Indonesia

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.

Administrative System and Mechanism Towards Interfaith Marriage in Indonesia

Law Number 23 of 2006 concerning Population Administration describes the order of important community events, one of which is the marriage event mentioned in Articles 8 and 9 in addition to Articles 34 and 35 which clarify the provisions for registration of marriage. Article 34 reads as follows: (1) A marriage which is valid according to the provisions of law must be reported by the population to the official institution where the marriage is carried out no later than 60 (sixty) days from that date; (2) Based on the report as referred to in number (1), the Civil Registry officer shall record it in the Marriage Deed book and issue the Marriage Deed that it issues. Furthermore, Article 35 states that "the registration of marriage as referred to in Article 34 also applies to: (a) marriages determined by the court.

From the description above, it is clear that critical incidents including spouse marriages outside the Muslim community are recorded at the Population and Civil Registry Service as described in Article 8 of Law Number 23 of 2006. However, the explanation of Article 9 paragraph (1) letter b states that the recording is carried out after the civil record has received the Court's decision which shows that the person concerned has received the District Court's decision.

Interfaith Marriage Implementation Policy

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.

Interfaith Marriage: Between State Policy and Civil Society Rights

This normative and narrow view has greatly influenced the implementation of interfaith marriage policy. The rejection of the request for permission from the Court clerk of the Court clearly shows how procedurally policy makers do not provide a sense of justice to citizens who apply for interfaith marriage.

Policy makers and law enforcers must first understand the legal basis of Pancasila and the provisions in Article 29 paragraph (2) of the 1945 Constitution which states "the state guarantees the freedom of every citizen to adhere to his religion", Law Number 39 of 1999 concerning Human Rights (HAM ) Article 10 paragraph (1) which explains "everyone has the right to build a family and continue their offspring through legal marriage and free will", as well as related articles concerning interfaith. marriages that are not explicitly described in the Marriage Law Number 1 of 1974.

This is all aimed at the state providing a sense of justice for the benefit of its people in order to obtain the legality of interfaith marriage.

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