THE JUDICIAL REVIEW OF THE POLYGAMY PROVISIONS IN THE MARRIAGE LAW
Image


The Constitutional Court conducted a judicial review on Law Number 1 Year 1974 on Marriage (Marriage Law) against the 1945 Constitution on last Tuesday (10/5) in the court room of the Constitutional Court, Jalan Medan Merdeka Barat Number 7, Central Jakarta. The hearing scheduled for the preliminary examination was presided over by the Chairperson of the Panel of the Constitutional Justices Lieutenant General (Ret.) H. A. Roestandi, SH. with the members of the panel, Prof. Dr. HM Laica Marzuki, SH. and Maruarar Siahaan, SH. and assisted by the Substitute Registrar Wiryanto, SH., M.Hum.

The case which was registered on Friday, April 20, 2007 under number 12/PUU-V/2007 was filed by M. Insa, S.H., a private entrepreneur from Bintaro Jaya, South Jakarta.

In the hearing, Insa requested the Panel of Constitutional Justices to declare Article 3 Paragraph 1 and Paragraph 2, Article 4 Paragraph 1 and 2, Article 5 Paragraph 1, Article 9, Article 15, and Article 24 of the Marriage Law are in contradictory to Article 28B Paragraph 1, Article 28E Paragraph 1, Article 28I Paragraph 1 and Paragraph 2, Article 29 Paragraph 1 and Paragraph 2 of the 1945 Constitution as well as to declare that the provisions of the aforementioned articles do not have binding legal force.

Insa considered the aforementioned articles in the Marriage Law have impaired his constitutional rights to acquire the freedom of religion namely to practice religions teachings and to establish family as well as to have descendants through polygamy that is lawful according to the Islamic Marriage Law as acknowledged by the law.

Insa also added that due to the application of those articles, he felt that he has been prevented by the marriage registrar from exercising his rights because the official refused to register his polygamic marriages, which are lawful pursuant to the Islamic Marriage Law at the Religions Affairs Office. As a consequence of the absence of such registration, his legitimate marriage is merely considered as a siri (unregistered) marriage and therefore, it has different legal power regarding inheritance, the children rights, etc.

Aside from the above, Insa also considered polygamy as one of the citizen rights in practicing religious activities according to Islamic teachings guaranteed by the 1945 Constitution. “As a consequence of the existence of these articles, a Muslim man intending to perform religious activities as modeled by the Prophet, namely to engage in polygamy, cannot do so because of the difficulty in obtaining the first wife’s permission,” he said firmly.

As a response to the petition, Justice Roestandi asked the Petitioner to revise the petition by presenting stronger arguments in his petition because not all Islamic Law experts have the same opinion regarding such matter. Meanwhile, Justice Maruarar gave an input to the Petitioner that the petition should be focused more on the substance of the law being petitioned and impressions which can draw the involvement of other parties not related to the petition should be eliminated. “Your petition should not cause new fronts of conflict with women’s right activist, “he warned.

The petitioner was given two weeks to revise his petition. (ardli)

 


Friday, May 11, 2007 | 15:16 WIB 146