Machica Mochtar accompanied by her legal counsels, Rusdianto, Miftachul Ikhwan Al-Annur after a hearing session on judicial review of Act No. 1 of 1974 on Marriage (Marriage Law), Wednesday (9/2/11).
Jakarta, MKOnline - Constitutional Court (The Court) again held a session for case Number 46/PUU-VIII/2010, Wednesday (9/2). The Judicial Review case for Act No. 1 of 1974 on Marriage (Marriage Law) against the 1945 Constitution was hearing testimony of government, the House of Representatives, and the Expert from the Petitioner and the Government as the agenda.
As in her petition, the state was considered to discriminate children born out of wedlock with the enforcement of Article 2 paragraph (2) and Article 43 paragraph (1) of Marriage Law. This was confirmed by Aisyah Mochtar or better known as the Petitioner Machica Mochtar in this review.
Machica accompanied by her legal counsels, Rusdianto, Miftachul Ikhwan Al-Annur, and Ferdinand Robot considered the requirement to list marriages (in state administration) was a restraint on freedom of wills, as well as a form of discrimination. Children who were born from an unlisted marriage, by the law would be considered a child out of wedlock. These articles made Machica experience a constitutional detriment in form of not having the name of the father written in her child’s birth certificate. Article 2 Paragraph (2) of the Marriage law deemed contradictory to Article 28B Paragraph (1) and Paragraph (2) and Article 28D Paragraph (1) of the 1945 Constitution.
On Machica’s request, the Government, Parliament, and Expert Witness of the Petitioner and the Government gave their testimonials before the court, on Wednesday (9 / 2). Expert Staff of the Ministry of Religious Affairs, Tulus, explained about Article 2 paragraph (1) of Marriage Law which stated that a marriage is legal when performed according to the teaching of each religion or belief. Furthermore, Article 2 paragraph (2), stated that each marriage had to be recorded according to the existing laws and regulations. "It means that by law a quo, the legality of a marriage rests in their respective religious laws. However, a marriage validity can not be recognized, if it is not accounted for in accordance with the provisions of legislation, "said Tulus.
Furthermore, he said the marriage records as referred to in Article 2 paragraph (2) aimed to curb the administration of marriage, to provide legal certainty and protection on the legal status of the husband, wife or children, also to provide security and protection on certain rights arising from marriage, such as inheritance rights, the right to obtain birth certificates and others.
"The government does not agree with the Petition stating that Article 2 paragraph (2) were contradictory to Article 28D paragraph (1) and paragraph (2), and Article 28D of the 1945 Constitution, because the recording of marriages was not intended to hinder the citizens’ human rights of, in fact it protected the citizens in building a family and continue their heredity and to provide legal certainty to the rights of the husbands, the wives, and the children, "said Tulus.
Tulus also said that the Petitioner had no legal standing. Because the case faced by the Petitioner was not a case of the substance of the constitutional validity of norms that was asked for review by the Petitioner. He said the case occurred because the Petitioner in marrying a man who has a wife did not fulfill the procedures, ordinances, and requirements as stipulated in Article 3 paragraph (2), Article 4, Article 5, Article 9 and Article 12 of Law a quo and Government Regulation No. 9 of 1975.
Marriage Registration
Pieter C. Simabuea Zulkifli, Member of the House of Representatives Commission III on the same occasion also conveyed the information related to the Marriage Act. One, it needed to be understood by the Petitioner that, to understand the laws related to marriage with the provisions of the articles in the Act a quo, the Petitioner must first understand the meaning of a marriage. According to Pieter, marriage is a physical and spiritual bond of a man and a woman as husband and wife, with the aim of forming a happy and everlasting family or household based on the Belief in God Almighty. "This provision implies that marriage as a bond between a man and a woman, closely related to religion / spirituality. When viewed from this understanding, any marriage that is based on religion is legitimate, but if it is associated with the purpose of marriage to establish a happy and prosperous family, and descendants, then the result of the marriage raises civil rights and obligations, "said Pieter.
Pieter continued that in order to guarantee their civil rights and obligations that had arisen from the result of a legitimate marriage, then every marriage needs to be recorded. Recording every marriage became a formal requirement for the legality of an event that could lead to a juridical consequences of their civil rights and obligations, such as the obligation to give maintenance and inheritance rights.
At the end of his statement, Pieter said that the House believed that the Petitioners' argument stating the provisions of Article 2 paragraph (2) Marriage Act had created legal uncertainty, was the assumption of false and without any base. (Yusti Nurul Agustina/mh/Sisil)
Monday, February 14, 2011 | 14:00 WIB 187