Religious law and the problematic marriage law Joeni Arianto Kurniawan ;   A researcher and lecturer at Airlangga University’s School of Law, Surabaya; Alumnus of the International Institute for the Sociology of Law (IISL), Oñati, Spain

JAKARTA POST,  26 September 2014

                                                                                                                       

Many have been surprised by a judicial review motion filed by students and alumni of the University of Indonesia’s school of law with the Constitutional Court (MK) against Marriage Law No. 1/1974, which they say contradicts the Constitution because it bars citizens from marrying if they are of different faiths. Does the contentious Article 2 section (1) of the law really prohibit interfaith marriage? The article stipulates: “A marriage is legal if it is conducted according to religious law.” Since the legality of a marriage is firstly determined by whether or not it is conducted according to religious law, there are at least two serious consequences. Firstly, the law assumes that all people in Indonesia adhere to a religion recognized by the state. Such an assumption doesn’t reflect the factual situation of Indonesian society because there are at least three groups of people who will encounter obstacles if they want to conduct a legal marriage: those who do not profess any religion, those who embrace a religion not recognized by the state and couples who follow different religions. Regarding the first group, these people may and do exist, and their existence does not contradict Article 29 section (1) of the Constitution, which explicitly stipulates: “The state is based on the Deity”. That’s because religion and belief are two different things. A person may have any belief. Belief is subjective and individual in its characteristics, and therefore can differ from the beliefs of others. Religion, on the other hand, is an institutionalized belief, which is developed and defended in a group and needs institutionalization to ensure the beliefs of its adherents when they institute an organization based on similarity of belief. Therefore, one doesn’t have to profess a religion just to have a certain belief, including the belief in God. Aliran Kepercayaan Kepada Tuhan, or Javanese mysticism, is an example of this. Regarding the second group, there are various indigenous religions in Indonesia that are not recognized by the state, such as Kaharingan (the religion of the Dayak tribes), Sunda Wiwitan (the religion of the Baduy tribe) and Agama Adam (the religion of the Sedulur Sikep community), to name a few. There have been many cases of people unable to register their marriage because their religions are not among the official religions, and consequently, their marriage has not been considered legal by the state. The second problem related to the controversial article of the Marriage Law concerns the so-called religious law. From the legal science point of view, there are some requirements that a set of norms have to meet to be qualified as law. One of the most important conditions is that such a set of norms be established and enforced by and within a social institution, either formal or informal. In this way, the norms can be enforced over the members of the institution, and any violation of the norms will have particular consequences for the perpetrator. Norms that fails to meet these qualifications are considered moral values only. Religious law therefore needs a religious institution in order to have the law enforced. Because such laws are embedded in an institution, their jurisdiction is limited to the members of that institution. The problem is that not all adherents of a religion are also members of a religious institution, because many, if not most, of them accept religious teachings but refuse to attach themselves to any religious organization. Religion, therefore, is simply a belief that works individually. Therefore, the set of norms they believe in serves not as a law but only as moral guidance that works voluntarily and individually and can be implemented differently from one believer to another. Forcing someone to obey a particular religious law means forcing him or her to be attached institutionally to a religious organization, which goes against the Constitution’s stipulation that freedom of religion is a citizen’s prerogative. Furthermore, there are numerous religious organizations operating in Indonesia that adhere to the same religion. Pluralism, then, is a characteristic of the nation; each religious institution will obviously uphold its own laws. Which religious law should be chosen to validate a marriage? Does the state recognize any religious law from any religious organization? Given the fact that the state does not recognize all religions, it seems the issue of interfaith marriage will continue to pose a problem, unless the Constitutional Court abolishes the controversial article of the Marriage Law. ●