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Women’s Alliance conducted sympathetic action after the verdict announcement session on Act of Marriage, on Thursday (18/6) at Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) decided a minimum age of 16 years for woman to marry didn’t violate the 1945 Constitution. Thus, verdict number 74/PUU-XII/2014 was read by Chief Justice Arief Hidayat on Thursday (18/6) at Plenary Room, the Constitutional Court Building.

“Applicant’s petition has no legal ground. (The Court, red) Declares reject Applicant’s petition in its entirely,” said Arief when read the verdict filed by several woman activists of the Children\'s Human Rights Foundation (Yayasan Pemantau Hak Anak –YPHA) and the Women\'s Health Foundation (Yayasan Kesehatan Perempuan –YKP).  

In Court’s consideration read by Constitutional Justice Patrialis Akbar, the Court assessed marriage was the right of each person which should be guaranteed and protected by the state because marriage was a fundamental right and nature and instinctive humanity which attached on each person. Moreover, the Court assessed the need to determine age limit of marriage, particularly for women, was relatively adjusted with various aspects development, from health aspect to socio-economic aspect. “Even, no guarantee which could assure that the raising of age limit for women from 16 years to 18 years will further reduce divorce rate, prevent health issues, and minimize social issues,” said him.

If the Court requested to determine certain age as minimum age which considered constitutional, the Court argued that it would limit any policy change efforts by the State to determine the best policy for its citizens, in accordance with civilization development. The Court viewed it was possible in the future, the age of 18 years was no longer used as minimum age for women to marry based on the development of technology, health, social, culture, economy, and other aspects. However, ideal age limit could be considered below or above 18 years.

“In fact, as argued by the Applicant, several countries also determined minimum age for women to marry are 17 years, 18 years, and even 20 years,” said Patrialis.

According to the Court, if the Applicant willing for changes towards age limit of marriage for women, it could be done through legislative review process under the scope of legislators to determine ideal minimum age for women to marry. “Under entire consideration above, the Court declares Applicant’s arguments have no legal ground and reject Applicant’s petition,” he asserted.

Dissenting Opinion

In the verdict, Constitutional Justice Maria Farida Indrati declared dissenting opinion. Maria said based on recent legislation development in Indonesia, it was clear that age limit of marriage for women in Act of Marriage was no longer appropriate with prevailing legislation, in order to protect children’s rights, particularly for girls. Maria argued the phrase ’16 years old’ in Article 7 (1) Act of Marriage had caused legal uncertainty and violated children’s rights as stipulated in Article 1 (3), Article 28B (2), and Article 28C (1) the 1945 Constitution.

“In addition, it could be concluded that child marriage would endanger children’s survival and growth and put children in vulnerable situation of violence and discrimination. Marriage needs physical readiness, psychological readiness, social readiness, economical readiness, intellectual readiness, culture readiness and spiritual readiness; Child marriage cannot met marriage requirement as stipulated in Article 6, which is the free will from brides due to brides’ immaturity,” she explained.   

Maria added, in several court verdicts –including verdict a quo–, the Court basically declared age determination was open legal policy which contained consequence that long process of legislative review should be conducted for legal changes, particularly on minimum age of marriage. Concerning on this matter, she argued that recently legal changes was needed immediately, through Court verdict as a tool for social engineering which in case a quo would affected on the changes in form of adjustment to Act of Marriage implementation, which resulted on efforts to change child marriage culture and tradition which still prevailing in the society.

“Under entire reasons above and for closing legal uncertainty which so far prevailing, I argue that Applicant’s petition in order that the phrase ’16 years old’ in Article 7 Act of Marriage was constitutional if interpreted as ’18 years old’ is grounded by law. Therefore, the Court should grant Applicant’s petition,” she justified.

In the petition points, the Applicant argued age limit on Act Number 1 Year 1974 of Marriage, particularly for women, had no compatibility with several Indonesian legislations by a contrario. According to the Applicant, the phrase ’16 years old’ had caused massive child marriage, particularly for girls, which led to child’s rights depriving, rampant cases of forced marriage to children, as well as threatened child’s reproductive health and education right.  (Lulu Anjarsari/Ilham MW/Prasetyo Adi N)

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