Hairunas and Euis Nurlaelawati taking oath before testifying virtually as experts for the Government at the judicial review hearing of Law No. 16 of 2019 on Marriage, Thursday (8/11/2022). Photo by Humas MK/Ifa.
Thursday, August 11, 2022 | 16:19 WIB
JAKARTA, MKRI—The solution to interfaith marriage is only religious conversion so that the marriage is carried out according to one religion, either Islam, Christianity, Catholicism, Hinduism, Buddhism, or Confucianism, said the rector of the Sultan Syarif State Islamic University (UIN) of Riau Hairunas, an expert for the Government at the material judicial review hearing 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 Thursday, August 11, 2022.
He went on to talk about the impact of interfaith marriage from a psychological perspective. Religion is a citizen’s individual right that cannot be forced. Forced conversion due to marriage can actually harm one’s psyche and lead to emotional turmoil. Interfaith marriage can also disrupt family harmony on the side of the prospective wives and husbands. Those united in interfaith marriage might tend to find some family matters difficult, such as determining the religion of the child born out of such a union.
Hairunas argued that one can be said to be mentally sound if their psychological, emotional, and social well-being is ensured. One’s mental health affects their way of thinking, feeling, acting, as well as their decision-making and interaction with others. “Therefore, from the perspective of any religion, theologically, ritualistically, and normatively, religious behavior of couples of different faiths can cause emotional and intellectual conflicts, making them vulnerable to division and deep-seated anxiety,” he said in his testimony.
Love, Hairunas argued, could be a temporary emotion that would overpower principles but can change due to those principles, such as religion. Therefore, couples in interfaith marriage might have psychological conflicts. Any children born out of such a marriage could face issues in choosing their belief. This could go on and harm those involved, and even lead to divorce.
“So, the solution of religious conversion to obtain legal standing is not a solution because it relates to choosing religion and emotional matters. Thus, it takes awareness and sacrifice, and only the prospective spouses can understand. Religious conversion will lead to new issues,” he said virtually before Chief Justice Anwar Usman and the other eight constitutional justices.
Compilation of Islamic Law
The Government also presented professor of UIN Sunan Kalijaga Euis Nurlaelawati to testify as an expert at this hearing. She offered her view that Article 40 (C) of the Compilation of Islamic Law (KHI) stipulates that men are not allowed to marry women who fall under several conditions, such as being non-Muslims. In this case, a shared religion is mandatory for kafaah (alignment/harmony), given that Indonesia is a Muslim-majority country that prohibits interfaith marriage, she argued.
Although many people do not apply the Marriage Law strictly despite understanding it, she added, the KHI does not allow for interfaith marriage and follows the MUI’s (Indonesian Ulema Council) fatwa. A majority of clerics, she said, believe that marriage is part of worship and so interfaith marriage is seen as not bringing benefits but instead the opposite.
“The harm that comes out of interfaith marriage is seen to be more significant [than the benefits] so to avoid it is seen as the main choice is in accordance with the fiqh rule of dar’u al-mafâsid muqaddamun ‘alâ jalb al-mashâlih,” she explained.
Euis then explained normative and empirical legal studies on the have legal, psychological, and social consequences of interfaith marriage. Juridically, interfaith marriage raises legal issues relating to registration, legal status of the children, guardianship, inheritance, and marital property since there are different legal provisions in Islam and in the statutory laws and regulations in Indonesia.
Interfaith marriage, she added, can trigger psychological and sociological conflicts and even aggravate existing ones. It may also lead to psychological and educational problems for children because they might have confusion about which religion to follow.
“Allowing interfaith marriage will cause inconsistency with relevant legal provisions relating to guardianship, inheritance, and so on. So, in my opinion, interfaith marriage ought to be regulated, such as by Article 2 and Article 8 of the Marriage Law. In addition, the regulation is in line with the principles of human rights, the application of which can depend on religious teachings and beliefs as well as the locality of the region or country,” she said.
Marriage Law vis-à-vis Population Law
Euis admitted that many couples believed interfaith marriage was allowed legally and religiously, although some decided against it. There are loopholes in the Marriage Law and the Population Law that couples have taken advantages of. Article 57 of the Marriage Law stipulates that marriage that takes place abroad can be legalized in Indonesia within one year after the couple’s return to Indonesia. It does not specify interfaith marriage, but the ambiguity has led to people assuming it includes interfaith marriage. Meanwhile, Article 35 of the Population Law stipulates that marriage that is allowed by the district court can be recorded by a civil registrar, and this includes interfaith marriage.
Euis said those articles do not explicitly mention that those who would like to be united in an interfaith marriage can request a decree by the district court. However, she argued that they have led to the assumption that people rejected by the civil registry office could request the district court to issue a decree. In other words, district court judges are authorized to give such dispensation.
“Interfaith marriage can be allowed. Provisions on legal mechanism within the Marriage Law and the Population Law can be a middle ground, I believe. Indeed, it is necessary to mention that the Supreme Court considers the provision of Article 35 of the Population Law legally contradictory to Article 2 of the Marriage Law, but Article 35 of the Population Law still exists. If this legal loophole, which has caused conflict in society due to the judges’ interpretation of Article 35 and Article 36 of the Population Law and decisions to allow [interfaith] couples to marry and register the marriage, is considered contrary to the principles of law, certainty, and justice, other ideas need to be proposed and stipulated by the Government by aligning Article 35 and Article 36 of the Population Law; Article 2 Article 8 of the Marriage Law; and Article 40, Article 44, and Article 66 of the Compilation of Islamic Law,” she explained.
Before concluding the hearing, Chief Justice Anwar Usman informed the litigants that the hearing would continue on Wednesday, September 7 at 11:00 WIB to hear two experts for the MUI and requested that their written testimonies be submitted by two days prior.
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The case No. 24/PUU-XX/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 for 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 8/12/2022 12:21 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.
Thursday, August 11, 2022 | 16:19 WIB 2615