Two experts taking oath before testifying for the Petitioner of case No. 24/PUU-XX/2022 at the material judicial review hearing of Law No. 1 of 1974 on Marriage, Monday (6/27/2021). Photo by Humas MK.
Tuesday, June 28, 2022 | 10:41 WIB
JAKARTA, Public Relations—Various provisions contained in the Universal Declaration of Human Rights (UDHR); various international treaties on civil rights, political rights, economic, social, cultural rights; as well as various conventions that eliminate discrimination against women clearly give rights and freedoms to both men and women to marry and form a family without any restrictions based on religion, ethnicity, or other social statuses. One of the legal bases is Article 16 paragraph (1) of the UDHR, which reads, “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.” Another relevant legal basis is Article 23 paragraph (2) of the International Covenant on Civil and Political Rights (ICCPR), which reads, “The right of men and women of marriageable age to marry and to found a family shall be recognized.”
The statement was made by Usman Hamid, an expert presented by the Petitioner of the material judicial review of Law No. 1 of 1974 on Marriage as amended by Law No. 16 of 2019 on the Amendment to Law No. 1 of 1974 on Marriage on Monday. June 27, 2022. At the plenary hearing for case No. 24/PUU-XIX/2022 presided over by Deputy Chief Justice Aswanto and seven other constitutional justices, Usman explained interfaith marriage in the eyes of international human rights law and Islamic law.
He said human rights organizations across the world, including NGOs such as Amnesty International, believe the right to marry and to found a family to be part of human rights. When examining disputes between citizens and UN member states on marriage, the UN Human Rights Committee has declared that there should be no doubt about allowing interfaith marriage in those cases.
Also read: Failed to Have Interfaith Marriage, Citizen Challenges Marriage Law
Different Treatment or Discrimination
Usman then talked about the interpretation of interfaith marriage in Islamic law practices and international human rights laws. Unlike international laws that allow interfaith marriage, in Islamic law there are general consensus on prohibition against it. There is a general consensus among Sunni and Shia fiqh experts that Surah Al-Baqarah 221 and Surat Al‑Mumtahanah 10 ban Muslim women from marrying non-Muslim men. This consensus is still standing strong. On the other hand, the Quran allows Muslim men to marry non-Muslim women (“People of the Book”).
“In the eye of international laws, such a provision will be deemed discriminatory. At glance, it seems a different treatment, but clearly there is an element of discrimination. The simple question is why Muslim men can marry non-Muslin women while Muslim women cannot marry non-Muslim men? Where is the equality of rights?” he said.
Usman explained that the Human Rights Committee had stressed that in the event that the right to marry is limited by legal norms or that women of any one religion is prohibited from marrying an atheist or a man of a different religion, the state must provide information on such rights and practices. The state must also take the steps to eliminate such practices and provisions.
“So, although the Human Rights Committee’s stance is clear—that states that restrict rights to marry immediately take the steps to eliminate such provisions or practices—in practice, it is not easy because the issue not only lies in interpretation, but in norms,” he explained.
Also read: Petitioner of Provision on Interfaith Marriage Reduces Object
Usman explained that international laws guarantees equal rights between men and women in marriage. Prohibition against interfaith marriage may be linked to the concern of the low standing of women in patriarchal society in Prophet Muhammad’s era, where access to education and economy for women was heavily restricted, when Islam was a new religion, weak due to the low number of adherents.
“So, when Muslim women married non-Muslim men, there was a general assumption that there would be a great possibility for the wife to convert, because at the time women would submit to the husbands. That was thought to have reduced the already low number of Muslims at the time,” he added.
However, he argued, today there have been new traditions that protect women’s rights and freedoms in Indonesia or other democracies. These countries provide clear guarantee to both Muslim and non-Muslim women as well as men to access education and the economy while maintaining their religions and faiths even in interfaith marriage.
Also read: House’s and Govt’s Stance on Interfaith Marriage
Religion and Pluralism
At the hearing, the Petitioner also presented an expert of social psychology, Risa Permanadeli. Risa asserted that religion is one of the variables of change and (supposedly) makes Indonesia more open. “In addition, religion must be dynamic because it represents the intelligence of the nation, who dares to face the changing times. So, pluralism in Indonesian society remains part of the identity of the nation,” she explained.
She further revealed that she held her view after observing the way of thinking of heterogenous modern society, which consists of a mixture of elements of life that move people to change, including in Indonesia. Risa urged everyone to realize the basic foundation of a very heterogeneous nation so they would understand that it is vulnerable to social problems.
Also read: Indonesian Ulema Council Requests Court to Reject Interfaith Marriage
The case No. 24/PUU-XIX/2022 was filed by E. Ramos Petege, a Catholic who had intended to marry a Muslim woman. The union fell through because interfaith marriage was not accommodated by the Marriage Law. Consequently, the Petitioner’s constitutional rights were harmed.
He also felt harmed from losing freedom of religion and faith because if he wishes to have an interfaith marriage, either the bride or the groom will be coerced to convert. In addition, he also lost his freedom to have offspring by forming a family based on free will. The Petitioner challenges Article 2 paragraphs (1) and (2) as well as Article 8 letter f of the Marriage Law, which he believes contradict Article 28D paragraph (1) and Article 29 paragraphs (1) and (2) of the 1945 Constitution.
Article 2 paragraph (1) of the Marriage Law reads, “A marriage shall be legitimate, if it has been performed according to the laws of the respective religions and beliefs of the parties concerned.” Article 2 paragraph (2) reads, “Each marriage shall be registered according to the regulations of the legislation.” Meanwhile, Article 8 letter f reads, “[A marriage shall be prohibited between to people that] have a relationship that, by religion or other statutory regulations, are forbidden to marry.”
Writer : Sri Pujianti
Editor : Nur R.
PR : Raisa Ayuditha
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/28/2022 13:14 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.