The ruling hearing for the judicial review of Law No. 16 of 2019 on Marriage, Tuesday (1/31/2023). Photo by MKRI/Ifa.

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Tuesday, January 31, 2023 | 16:37 WIB

JAKARTA (MKRI) — The validity of marriage is the scope of religion through religious institutions or organizations authorized to provide religious interpretations. The state’s role is following up on the interpretation by the institutions or organizations. Meanwhile, registration of marriage by state institutions serves to provide certainty and order in population administration in accordance with the mandate of Article 28D paragraph (1) of the 1945 Constitution, the Constitutional Court (MK) asserted in its legal considerations in Decision No. 24/PUU-XX/2022 on the 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 as read out by Constitutional Justice Enny Nurbaningsih on Tuesday, January 31, 2023.

In the verdict for the petition filed by E. Ramos Petege, the Court declared it rejected the entire petition. “[The Court in its] verdict adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman alongside the other eight constitutional justices.

In its legal considerations, the Court asserted that religion and the state has interest and responsibility in marriage. “Therefore, through Decisions No. 68/PUU-XII/2014 and No. 46/PUU-VIII/2010, the Court has provided a constitutional basis for the relationship between religion and the state in marriage law, that religion determines the validity of marriage, while the state determines the administrative legal validity of marriage,” Justice Enny said.

Human Rights on Marriage

In terms of the constitutionality of Article 2 paragraph (1) in conjunction with Article 8 letter f and Article 2 paragraph (2) of Law No. 1 of 1974, the Court asserted that human rights are recognized in the Constitution as constitutional rights but must be in line with state ideology Pancasila. Guarantees for universal human rights protection are contained in the Universal Declaration of Human Rights (UDHR). Despite international convention, the implementation of human rights in each country is also adapted to the ideology, religion, society, and culture of the people.

Justice Enny explained that, based on Article 28B paragraph (1) of the 1945 Constitution, the right to form a family and the right to continue their generation are strictly guaranteed. The next phrase shows that ‘a legitimate marriage’ is a prerequisite in order to protect those two rights. That is, marriage is not seen as a right but as a prerequisite for the right to form a family and the right to continue their generation. So, based on this description, it is clear that the UDHR and the 1945 Constitution have fundamental differences in perspectives on protecting the right to marry. As a rule of law that upholds constitutional supremacy, without prejudice to universal human rights in the UDHR, the Constitutional Court should make the 1945 Constitution the main foundation to assess the citizens’ constitutional rights.

“Although Article 28B paragraph (1) of the 1945 Constitution stipulates that a legitimate marriage is a requirement to protect the right to form a family and the right to continue generation, this condition is mandatory. [One] cannot form a family and continue their generation without a legitimate marriage. Legally, something that is a requirement for a legal obligation becomes mandatory (mâ lâ yatiimmu alwâjibu illâ bihî fahuwa wâjib), so a legitimate marriage is also a constitutional right that must be protected,” she added. 

Provisions on Marriage

In its next legal considerations, read out by Constitutional Justice Wahiduddin, the Court had considered the state’s regulation of marriage in Decision No. 56/PUU-XV/2017, which was pronounced at a public plenary session on July 23, 2018. It also asserted that practicing religion basically meant two things: first, believing in a particular religion, which is forum internum that cannot be restricted through coercion and cannot be prosecuted; second, religious expression through public statements and attitudes in accordance with conscience, which is externum forum.

Marriage is seen as a form of worship and a religious expression. Thus, it is categorized an external forum in which the state can intervene, as is the case with the management of zakat and hajj. The state’s role is not to limit beliefs but rather to prevent religious expressions from deviating from the main teachings of the religion in question. Marriage is one of the problem areas regulated in the legal order in Indonesia in Law No. 1 of 1974.

All actions and actions by citizens, including relating to marriage, must obey and not contradict or violate laws and regulations. Laws and regulations regarding marriage were formed to regulate and protect the rights and obligations of citizens in relation to marriage and are in line with Article 28J of the 1945 Constitution, which stipulates that in exercising the rights guaranteed by the 1945 Constitution, every citizen everyone shall adhere to the given limitation in the law solely intended to guarantee the recognition and respect of the rights and freedom of the others and fulfil fair demands in accordance with moral considerations, religious values, security, and public order in a democratic community. 

State’s Guarantee through Marriage Organizers

Justice Wahiduddin also stated that despite its interference in organizing marriages, the state should not become a religious interpreter for the legitimacy of marriage, but should follow up on the results of interpretation by religious institutions or organizations to ensure that marriage be in accordance with their religions and beliefs. The results of this interpretation are then set forth by the state in statutory regulations. Thus, only religious leaders through religious institutions or organizations should interpret the legitimacy of interfaith marriage, not individuals, which can lead to legal uncertainty.

Article 2 paragraph (1) in conjunction with Article 8 letter f of Law No. 1 of 1974 are in accordance with Article 28B paragraph (1) and Article 29 of the 1945 Constitution on the state’s obligation to guarantee the implementation of religious teachings. Law No. 1 of 1974 defines marriage as a relationship of body and soul between a man and a woman as husband and wife with the purpose of establishing a happy and lasting family founded on belief in God Almighty. Article 28B paragraph (1) of the 1945 Constitution necessitates not only marriage but “legitimate marriage,” which is performed according to the laws of the respective religions and beliefs of the parties concerned.

“In Article 2 of Law No. 1 of 1974, the registration referred to in paragraph (2) must results in legitimacy in paragraph (1). Thus, the law stipulates that a legitimate marriage is registered. The mandatory registration of marriage by the state is an administrative obligation. Whereas regarding the legitimacy of marriage in Article 2 paragraph (1) of the a quo Law, the state actually leaves it up to religions and beliefs because a legitimate marriage is one that is in accordance with the laws of the religion and belief,” Justice Wahiduddin explained.

The Court also asserted that the enactment of Article 2 paragraph (1) of Law No. 1 of 1974 does not restrict freedom to choose religion and belief. Article 2 paragraph (1) only stipulates that a legitimate marriage be performed according to religion and belief, but does not stipulate choosing religion and belief. Adherence to religion and belief remains an individual right guaranteed by Article 29 paragraph (2) of the 1945 Constitution.

Article 34 of Law No. 23 of 2006 stipulates that every citizen that enters into a legitimate marriage according to statutory regulations has the right to register their marriage at the civil registry office for non-Muslim couples and the Religious Affairs Office (KUA) for Muslim couples. Guarantees for the registration of marriage can also be provided for marriages determined by the court. Even though the elucidation that a marriage determined by the court is one between a couple of different religions, the Constitutional Court believes this does not mean that the state recognizes interfaith marriage as the state follows interpretation by authorized religious institutions or organizations, which can resolve any disagreement in interpretation.

The state’s in casu the Government’s interest is to properly record any changes in a person’s residence status so as to provide protection and recognition of their personal and legal status in case of population events, including the registration of marriage through determination by the court. The Court asserted that this provision must be understood as a regulation in population administration as the legitimacy of marriage refers to Article 2 paragraph (1) of Law No. 1 of 1974. Such provision shows that there is no constitutionality issue regarding Article 2 paragraph (2) of Law No. 1 of 1974. On the contrary, it shows the state’s role, function, and responsibility in guaranteeing the protection, promotion, enforcement, and fulfillment of human rights according to statutory regulations as per the Article 28I paragraphs (4) and (5) of the 1945 Constitution. 

Amendment to Marriage Law

Constitutional Justices Suhartoyo and Daniel Yusmic P. Foekh had a concurring opinion. Justice Suhartoyo stated that interfaith marriage seemed to have occurred due to the state’s lack of attention as it does not consider interfaith marriages religiously legitimate since the legalization of marriage according to civil law is only in the form of administrative registration.

Therefore, the state should resolve this legal uncertainty through an amendment to the Marriage Law, which was issued in 1974 when society was not as complex as it is today. Moreover, Law No. 16 of 2019 only amended the age limit for marriage in the Marriage Law to follow up on the Constitutional Court Decision No. 22/PUU-XV/2017.

Thus, he added, the state should consider providing a comprehensive resolution on the legitimacy of interfaith marriage and its administration when amending the Marriage Law following the development in society while promoting religious freedom as today interfaith marriage only results in administrative recognition by the state.

“I think it is more appropriate for the Court to leave it up to the legislators who have the authority to amend the Marriage Law if changes are to be made so that the root cause of interfaith marriage can be resolved, not only in terms of administration, but also to find a middle ground while still prioritizing the fulfillment of the citizens’ right and freedom to embrace their religions and beliefs and to worship according to their religions and beliefs,” Justice Suhartoyo said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh emphasized that the House of Representatives (DPR) and the President/Government as the legislative branch should regulate this. “These two institutions have more tools and resources than judicial institutions such as the Constitutional Court, especially in collecting the people’s aspirations, as well as the ability to conduct in-depth research involving various scientific disciplines in preparing academic texts,” 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 

Article 29 of 1945 Constitution, Legal Basis for Marriage in Indonesia 

Indonesian Islamic Organizations Ban Interfaith Marriage 

Marriage Based on Religious Norms in International Human Rights Perspective 

Interfaith Marriage Causes Continuous Harms

The Petitioner of case No. 24/PUU-XX/2022 is a Catholic who intended to marry a Muslim woman but could not because interfaith marriage was not accommodated by the Marriage Law. Consequently, his constitutional rights were harmed.

He also felt harmed for losing freedom of religion and faith because if he wished to have an interfaith marriage, either the bride or the groom would be coerced to convert. In addition, he also lost his freedom to have offspring by forming a family based on free will. The Petitioner challenged Article 2 paragraphs (1) and (2) as well as Article 8 letter f of the Marriage Law, which he believed 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.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 2/2/2023 11:00 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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