Article 29 of 1945 Constitution, Legal Basis for Marriage in Indonesia
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The judicial review hearing of Law No. 16 of 2019 on Marriage to hear an expert for the Indonesian Ulema Council, Wednesday (9/7/2022). Photo by MKRI/Ifa.

Wednesday, September 7, 2022 | 19:12 WIB

JAKARTA (MKRI)—The Marriage Law is the embodiment of the Indonesian law-based state as stipulated in Article 1 paragraph (3) of the 1945 Constitution and a state based on the belief in One Supreme God as stipulated in Article 29 paragraph (1) of the 1945 Constitution. Islamic law applies for Muslims, Christian law for Christians, and Hindu law for Hindus. To carry out sharia, the state must act as an intermediary. Therefore, the legal basis for the Marriage Law is none other than Article 29 of the 1945 Constitution. As such, every article in the law must be inspired by and must not conflict with Article 29 of the 1945 Constitution. This means that all provisions (including marriage) must absolutely be in accordance with Article 29 of the 1945 Constitution.

This statement was made by Neng Djubaedah as an expert for the Indonesian Ulema Council (MUI) (Relevant Party) 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 Wednesday, September 7, 2022.

Neng added that according to the Compilation of Islamic Law (KHI), a marriage contract becomes valid after the requirements are fulfilled. This includes for a Muslim prospective groom, a Muslim prospective bride, and no obstacles to marriage between them or due to religious differences. Interfaith marriage is prohibited among Muslims in Indonesia following Article 2 paragraph (1) of the Marriage Law, which is related to Article 8 letter f, Article 40 letter c, and Article 44 of the KHI.

“According to Islamic law, marriage is worship, so the protection of Muslims to carry out worship through marriage is contained in Article 28E paragraph (1) of the 1945 Constitution. Marriage is related to social order. It must be between [adherents of] the same religion, because then there is no coercion to practice the other’s religion,” she said at the plenary hearing presided over by Chief Justice Anwar Usman and the other eight constitutional justices. 

Living Legal System

At the hearing, the MUI also presented Muhammad Amin Suma as an expert. He mentioned written laws and regulations on marriage: Law No. 1 of 1974, Government Regulation No. 9 of 1975, and Presidential Instruction No. 1 of 1991 on the Compilation of Islamic Law Book I.

Amin believed that the Marriage Law had overlapping parts with a living (fiqh al-hayâh), applicable law within Indonesian society, including religious laws and customary laws.

“Religious laws, including the Islamic sharia or fiqh, have a strong guarantee and protection in the legal system and the administration of Indonesia. This also includes family law or al-ahwâl al-syakhshiyyah/ahkâm al-usrah and marriage (munâkahât) law,” he explained.

Aspects of Marriage Law

Amin then mentioned the aspects of religious law and state legislation on marriage. He asserted that there are not only formal legal and administrative normative aspects to marriage because marriage is only one aspect or the first step in forming a family or household, which has many aspects. For this reason, he added, marriage is expected to last a lifetime, as mandated by religious law and state legislation.

“Therefore, marriage in particular and family in general have a broad scope and involve many aspects: at least history, customs, sociology, culture, psychology, economy, and politics. Of course, the legal aspect, including religious law and Islamic religious law or fiqh, are no exception,” he explained.

Interfaith Marriage Not Valid

In response to the Petitioner’s claim that his marriage had been hindered by different religions, Amin explained that Article 2 paragraphs (1) and (2) and Article 8 letter f of the Marriage Law were not unconstitutional because they did not harm the constitutional rights of Indonesian citizens. He added that interfaith marriage between a Muslim and a non-Muslim is haram according to Islamic law (fiqh) and not legally valid.

“In fact, according to many Muslims and the majority of non-Muslims, Article 8 letter f of the Marriage Law prohibits interfaith marriage, in this case between Muslims and non-Muslims,” he said.

Also read:

Failed to Have Interfaith Marriage, Citizen Challenges Marriage Law

Petitioner of Provision on Interfaith Marriage Reduces Object

House’s and Govt’s Stance on Interfaith Marriage

Interfaith Marriage in International and Islamic Laws

Indonesian Ulema Council Requests Court to Reject Interfaith Marriage

DDII: Petitioner’s Arguments on Interfaith Marriage Legally Groundless 

Ade Armando and Rocky Gerung Speak on Interfaith Marriage 

Interfaith Marriage Brings More Harm 

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 9/12/2022 08:36 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.

Wednesday, September 07, 2022 | 19:12 WIB 498
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