The petition revision hearing of the judicial review of Law No. 23 of 2006 on Population Administration, Wednesday (8/3/2021). Photo by Humas MK/Ifa.

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Wednesday, August 3, 2022 | 19:27 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) held another material judicial review hearing of Law No. 23 of 2006 on Population Administration in conjunction with Law No. 24 of 2013 on the Amendment to Law No. 23 of 2006 on Population Administration on Wednesday, August 3, 2022 virtually. This hearing for case No. 71/PUU-XX/2022 had been scheduled to examine the revised petition.

One of the Petitioners, Emir Dhia Isad, conveyed the revisions to the petition virtually. The subject of the petition was changed to the judicial review of the elucidation to Article 35 letter a of Law No. 23 of 2006 on Population Administration in conjunction with Law No. 24 of 2013 on the Amendment to Law No. 23 of 2006 on Population Administration against the 1945 Constitution.

The Court’s authority had been expanded following Law No. 48 of 2009 of Judicial Power, Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court, and Law No. 15 of 2019 on the Amendment to Law No. 12 of 2011 on Lawmaking, the Constitutional Court Decision No. 48/PUU-IX/2011 that annulled Article 45 and Article 57 paragraph (2A) of Law No. 8 of 2011, as well as the Constitutional Court Regulation (PMK) No. 2 of 2021.

The Petitioners also revised the elaboration of legal standing and background of the petition. “The Petitioners also added potential impairment,” Emir said to the presiding panel—Constitutional Justices Enny Nurbaningsih (panel chair), Suhartoyo, and Wahiduddin Adams.

Also read: Provisions on Interfaith Marriage in Population Administration Law Challenged

The petition was filed by Emir Dhia Isad, Syukrian Rahmatul'ula, and Rahmat Ramdani. They challenge the elucidation to Article 35 letter a of the Population Administration Law, which reads, “‘Marriage determined by a court’ is marriage between people of different religions.”

The Petitioners, who are graduates of family law who studied and understand the Marriage Law, do not agree with the provision of the elucidation to said article, which allows marriage without a religious ritual as regulated in Article 2 paragraph (1) of the Marriage Law. At the hearing, Emir Dhia Isad said the Petitioners challenged the Population Administration Law on the basis of the protection of religious values ​​in Indonesia, the principles of marriage, and family resilience.

“The elucidation to Article 35 letter a of the Population Administration Law clearly contradicts the values ​​of constitutional philosophy implied in Article 29 paragraph (1) of the 1945 Constitution and the first precept of Pancasila that is included in the Preamble to the 1945 Constitution, which can also be interpreted that the state is based on religious values as one of the constitutional foundations in establishing the state and administering the government,” he said virtually.

Emir asserted that the article implies that the state is obliged to imbue all forms of legislation and policies with faith in God Almighty. The 1945 Constitution does not separate religion from the state, and freedom of religion is guaranteed by the state.

“Religious values ​​are the source of state policies so all policies that contradict religious values ​​are constitutional," said the Emir.

Meanwhile, Syukrian (Petitioner II) stated that the word ‘family’ as guaranteed in Article 28B paragraph (1) of the 1945 Constitution and Article 28G paragraph (1) of the 1945 Constitution cannot be interpreted solely as a form of physical/biological relationship between a mother and father and their children, but also that psychological, religious, security, and educational elements within family relations as a constitutional institution are recognized by the State because family resilience has a direct effect on national resilience (if the family is not strong, the nation and state are weakened, and it could lead to national division where foreign interferences could control it.

“Based on the abovementioned explanation, interfaith marriage has legal consequences because it is not valid according to religion, so it is also invalid according to Law No. 1 of 1974 in conjunction with Law No. 16 of 2019 on Marriage. Such an illegitimate marriage can have consequences on the status and position of the children. Based on Article 42 of the a quo Law, a legitimate child is a child born within or as a result of a legal marriage. If the marriage of both parents is not legal according to religious law or marriage law, children born from an interfaith marriage is illegitimate or born out of wedlock,” he explained.

Based on these reasons, the Petitioners asked in the petitum that the Court declare the elucidation to Article 35 of the Population Administration Law unconstitutional.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/4/2022 11:37 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.

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