The enigma of legal pluralism in Indonesian Islam: the case of interfaith marriage

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Notes

¹In this context legal nationalization refers to the efforts to nationalize the legal traditions that exist in Indonesia so they can be incorporated into the National Law system.

²See Article 66 of Law No. 1/1974. Some of the laws on marriage governing the Indonesian people prior to passage of the Marriage Law in 1974 are as follows: (1) For indigenous, non‐Muslim people, marriage was governed by the adat law; (2) For Muslims, the law used for regulating their marriage was Islamic marriage law; (3) For indigenous Christian people living in Java, Minahasa and Ambon, the law to be used was Huwelijks Ordonantie Christen Indonesiers (HOCI) as explained in S. 1933 No. 74 and S. 1936 No. 607; and (4) For non‐indigenous people (such as Chinese and European and their descendents), their marriage law was the rules derived from Burgelijk Wetboek. The laws and regulations above can be found in W.A. Engelbrecht and E.M.L. Engelbrecht, Kitab‐Kitab Undang‐Undang dan Peraturan‐Peraturan serta Undang‐Undang Dasar 1945 Republik Indonesia. De Wetboeken Wetten en Verordeningen Benevens de grondwet van 1945 van de Republiek Indonesie (Les Editions A. Manteau SA. and AW. Sijthoff’s Uitgeversmaatschappij NV, Bruxelles and Leiden, 1960); and also Thoralf Hanstein, Islamisches Recht und Nationales Recht (Frankfurt am Main: Peter Lung, 2002).

³New Order is the name of the governmental system of Indonesia that existed at the time when Soeharto took power to replace the Old Order government, led by first president Soekarno (1966–1998).

⁴This is the logical consequence of the principle of legal unification since, with the nationalization of the country, the classification of the citizen as an object of national law is only understood in terms of Indonesian or non‐Indonesian, leaving all other classifications existing prior to independence, such as Chinese, European, Indian, Arab, etc. outside the new criteria.

⁵Particularly on the matter of interfaith marriage, the Marriage Law seems to follow the principles of religious law, which ban marital relationships between people of different faiths.

⁶Article 57 of the Marriage Law states: “What is meant as mixed marriage in this Law is marriage between two people in Indonesia to whom different laws apply due to their having different citizenships, when one of the parties is an Indonesian citizen.”

⁷In the Regeling op de Gemengde Huwelijken promulgated in Staatblad No. 158 of 1898 Article 1, the Dutch gave a definition of mixed marriage: “Huwelijken tusschen personen, die in Indonesië aan een verschillend recht onderworpen zijn, worden gemengde huwelijken genoemd.” See WA Engelbrecht and EML Engelbrecht, Kitab‐Kitab Undang‐Undang dan Peraturan‐Peraturan serta Undang‐Undang Dasar 1945 Republik Indonesia. De Wetboeken Wetten en Verordeningen Benevens de Grondwet van 1945 van de Republiek Indonesië (Les Editions A Manteau SA and AW Sijthoff’s Uitgeversmaatschappij NV, Bruxelles and Leiden 1960) 745.

⁸Article 6 of the Regeling stated very clearly that mixed marriage could take place by following the law of the husband in the marriage (“De voltrekking van gemengde huwelijken geschiedt volgens het voor den man geldende recht, behoudens de toestemming der aanstaande echtgenooten, welke steeds wordt vereischt.”). In addition, Article 7 of the same Regeling stated that differences of religion, state or sibling were not an impediment to the marriage contract (“Verschil van godsdienst, landaard of afkomst kan nimmer als beletsel tegen het huwelijk gelden.”). See Engelbrecht and Engelbrecht, op. cit. 745–746.

⁹S Pompe, ‘Mixed Marriages in Indonesia: Some Comments on the Law and the Literature’ (1988) 144 Bijdr. Taal Land Volkenk, 259, 262–264.

¹⁰See Nani Soewondo and others., Analisa dan Evaluasi Hukum Tidak Tertulis tentang Hukum Kebiasaan dalam Perkawinan Campuran (Proyek Pusat Perencanaan Pembangunan Hukum Nasional, Badan Pembinaan Hukum Nasional, Jakarta 1991–1992) 41–42.

¹¹Article 2 (1) of the Universal Declaration of Human Rights states very clearly that: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” 〈http://www.unhchr.ch/udhr/lang/eng.htm〉 accessed 3 June 2008.

¹²Soewondo, op. cit.

¹³The data on these local government and departmental letters is as found in the appendix of Soewondo, op. cit.

¹⁴An example of legal circumvention and its impact on the future of marital relationships is seen in Tati Djuwati v Tr Aritonang. In this case, the wife (Tati Djuwati) brought the case to the Religious Court of Cirebon when her husband (Aritonang) reconverted to his previous religion after marriage so that their marital relationship was no longer harmonious. The court, as expressed in letter No. 612/82 dated 22 October 1982, decided the marriage should end with a divorce. The husband appealed to the Religious Court of Appeal for a judgment reversing the decision of the lower court. However, the Court of Appeal affirmed the judgment of the lower court (Letter of Judgment No. 12/1983, dated 2 February 1983). Unsatisfied with that judgment, the husband appealed to the Supreme Court in Jakarta. As explained in Supreme Court Judgment No. 32 K/AG/1983, dated 22 September 1983, the judgment was affirmed and the marital relationship was terminated. The decision can be found in Hukum & Pembangunan, January 1984, 58–73.

¹⁵Registration of marriage in the office of the KUA for Muslims and the KCS for non‐Muslims is based on Article 2 (2) of Law No. 1 of 1974 and Article 2 (1–2) of the Government Regulation No. 9 of 1975 on the Implementation of the Marriage Law. See also marriage registration in general in Law No. 32 of 1954. The organization of the Office of Civil Registration is based on Presidential Decision No. 12 of 1983. See also on this matter in the Decision of the Secretary of the Interior No. 221a of 1975. The role of religious experts to help registration of Christian, Hindu and Buddhist marriages in the KCS is based on the Decision of the Secretary of the Interior No. 97 of 1978.

¹⁶On the discussion of the religious concept of interfaith marriage, see J⊘rgen S. Nielsen, Islam and Mixed Marriages (Research Papers: Muslims in Europe 20, Centre for the Study of Islam and Christian–Muslim Relations, Birmingham, UK 1983) 8–13; Guy Harpigny, ‘Muslim‐Christian Marriages and the Church’ (Research Papers: Muslims in Europe 20, Centre for the Study of Islam and Christian–Muslim Relations, Birmingham, UK 1983) 18; for the case of Indonesia, see Pompe, op. cit. 259–275.

¹⁷It is interesting to note that most, if not all, applications to enter into an interfaith marriage brought to the Primary Court are approved. The judges are of the opinion that Law No. 1 of 1974 does not regulate interfaith marriages and the use of the Dutch law is valid. See: Hartoyo and Etty Endang Poedjo Moelyati v the State, with the decision of the Primary Court of Surakarta (Central Java) No. 140/1983/ Pdt/P/PN.Ska., dated 2 March 1983; Victor Simon Paat and Puji Aryanti v the State, based on the decision of the Primary Court of North Jakarta No. 71/Pdt/P/1985/PN.Jkt.Ut., dated 2 February 1985; and Ferdinan Zebedeus Gahana and Eeng Hadijah v the State, with the decision of the Primary Court of Ciamis (West Java) No. 56/Pdt.P/1985, PN. Cms., dated 22 April 1985. Departemen Kehakiman, Himpunan Putusan‐Putusan Pengadilan Negeri 1990 (Dirjen Badan Peradilan Umum & Peradilan Tata Usaha Negara, Jakarta 1990) 73–77; 89–91; 101–106.

¹⁸This was based on the letter of the KUA No. K.2/NJ‐1/834/III/1986, dated 5 March 1986, and the letter of the KCS No. 655/1.1755.4/CS/1986, dated 5 March 1986.

¹⁹On the regulation of the office see n 13 above.

²⁰Decision of the primary court of Central Jakarta No. 382/PDT/P/1986/PN.JKT.PST.

²¹See also the legal explanations of the judges in the primary court in Z Asikin Kusumah Atmadja, Beberapa Yurisprudensi Perdata yang Penting serta Hubungan Ketentuan Hukum Acara Perdata (2nd edn, Mahkamah Agung RI, 1992, Jakarta) 409–413.

²²Decision of the Supreme Court No. 1400 K/Pdt/1986, dated 20 January 1989.

²³Article 27 (1) of the 1945 Constitution states: “All citizens have equal status before the law and in government and shall abide by the law and the government without any exception.” This is the text of the Constitution quoted before the amendments. The text is not essentially changed by the amendments. For the 1945 Constitution both before and after amendments, see 〈http://indonesia.ahrchk.net/news/mainfile.php/Constitution/34?alt=english〉 accessed 4 June 2008.

²⁴See the explanation in Asikin Kusumah Atmadja, op. cit. 55, 414–419.

²⁵It is interesting to note here that it was because there were so many interfaith marriage cases that the Supreme Court sent the letter to the Minister of Religious Affairs and the Secretary of the Interior on 20 April 1981, No. KMA/72/IV/1981. The letter basically explained the legal opinion with regard to interfaith marriage, as well as appealing on behalf of the Primary Court for the Ministry of Religious Affairs and related government offices to ease the implementation of the interfaith marriage. It is also interesting to note that, in this letter, the Primary Court used the term “mixed marriage” rather than “interfaith marriage”. At least three ideas were presented in the letter. First, the pluralism of the Indonesian society meant that interfaith marriage was essentially unavoidable in the community. Second, the Marriage Law was in fact silent on the matter so that, on the basis of Article 66 of that Law, the Dutch regulation (S. No. 158 of 1898) was valid as a reference for judging in the matter of interfaith marriage. Third, since the marriage contract in Indonesia is in essence a state matter (staatshuwelijk), it is the responsibility of the government to manage interfaith marriage so that it does not become a “lying” contract.

²⁶See a number of interfaith marriage cases brought to the courts presented in n 16 above.