Bhinneka sans Ika to review the Marriage Law Mochtar Karuwin Komar  ;   A legal consultant; Graduate of Atma Jaya Catholic University, Jakarta

JAKARTA POST,  28 September 2014

                                                                                                                       

The national motto of Indonesia is “Bhinneka Tunggal Ika”, which translates as “unity in diversity”. This diversity encompasses people of various religions and cultures. Furthermore, the Constitution stipulates that each person has the freedom to practice his or her religion of choice. Indonesian marriage law, which effectively prohibits inter-faith marriage, however, contradicts these founding principles. According to the law, a marriage requires a religious ceremony in order to be valid. The Indonesian government officially recognizes six religions: Islam, Buddhism, Catholicism, Protestantism, Hinduism and Confucianism. In practice, this means that both members of a couple must belong to the same religion if they seek a legal marriage. Many people in Indonesia have had to convert, sacrificing their beliefs, in order to tie the knot with the person they love. The difficulty is often augmented by pressure from families and the cultural stigma attached to inter-faith couples. Many families force their sons or daughters to break ties with their partners of different faiths, or they ask the partners to convert. Younger generations, however, accept inter-faith relationships. While pressure from families may be an important factor for couples, the law can be an insurmountable obstacle. Of course, parents are free to convince their children to follow their beliefs, but the law should be fair and unbiased. Fairness and equality do not encompass forcing people to convert in order to marry people they love. This forced conversion has many negative consequences. It separates people from their beliefs, religious practices and culture. It also often sparks friction or even division between them and their families. This tension can undermine the love and intimacy between a married couple. The person who has to convert may feel he or she has sacrificed too much and may even begin to resent his or her spouse for it. Implementation of the marriage law can result in misleading data about the growth of followers of a certain religion as many of its new members may not genuinely believe in the new faith. Do we want to keep a law that undermines Indonesian culture, religions, marriages and families? Should we maintain a law that fundamentally violates our constitutional freedom of religion? A number of inter-faith couples have sought alternate ways to get around the law’s requirement. Some people have officially changed their religions immediately ahead of their wedding ceremony and then returned to their original religion shortly afterwards. Others have travelled abroad to get married and some couples have even resorted to living together without getting married. Couples who love each other should not have to use such desperate means in order to be together. Indonesian law should support a healthy family life without violating its citizens’ rights and free will. Happily, a group of legal scholars has recently challenged Indonesian marriage law by filing a judicial review with the Constitutional Court against the article in Indonesia’s marriage law requiring religious ceremonies. One of the petitioners argued that he and the others “[found] that this law has the potential to violate people’s rights to adhere to their chosen religion and to bypass religious wedding rituals.” Government officials have countered that Indonesia is at its core a religious country and that this justifies the law’s requirement for religious ceremonies. Allowing inter-faith marriages does not mean that marriage and culture in Indonesia will not have a religious underpinning. In fact, allowing everyone to stay true to their beliefs, even when marrying people of different religions, will only strengthen their faith. One of the great aspects about Indonesia is that we have a diverse population with different beliefs. Our laws should respect those beliefs and support the unique nature of our culture. Most importantly, Indonesian law should not violate people’s freedom to practice whatever religion they choose or marry whomsoever they love. Indonesians should never have to choose between love and their beliefs. We can all hope that the challenge to the Marriage Law will be successful. The Constitutional Court should listen to its citizens’ concerns and follow its own constitutional principle: upholding freedom of religion for all. Inter-faith marriage should be a freedom accessible to all Indonesians. ●

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. ●