Constitutional Justices Enny Nurbaningsih, Suhartoyo, and Daniel Yusmic P. Foekh entering the courtroom for the material judicial review of Law No. 23 of 2006 on Population Administration, Monday (9/4/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Provisions on marriage registration for non-Muslims in Article 34 of Law No. 23 of 2006 on Population Administration has been challenged materially in the Constitutional Court (MK). Harry Pratama filed the case No. 89/PUU-XXI/2023. The preliminary hearing for the case took place in the plenary courtroom, with Constitutional Justices Enny Nurbaningsih, Suhartoyo, and Daniel Yusmic P. Foekh presiding.

Article 34 paragraph (4) of the Population Administration Law reads, “For Muslim Residents, the reporting referred to in Article 34 paragraph (1) shall be completed at the KUAKec.” Meanwhile, Article 34 paragraph (5) reads, “Registration data from the events referred to in Article 34 paragraph (4) and Article 8 paragraph (2) must be conveyed by the KUAKec to the Implementing Agency within 10 days of the registration of marriage.” Subsequently, Article 34 paragraph (6) reads, “The registration data referred to in Article 34 paragraph (5) shall not require a Copy of a Civil Registration Certificate.”

The Petitioner revealed that when he applied for his child’s birth certificate at the Regency/City Population and Civil Registry (Didukcapil), he needed to attach his marriage certificate since he and his spouse are both Christians. However, such a requirement is not expected of Muslim couples. He alleged Article 34 paragraphs (4), (5), and (6) of the Population Administration Law has discriminated against him.

For population registration to be processed, Muslim citizens only need to attach a copy of their marriage certificate from the subdistrict Religious Affairs Office (KUA). Meanwhile, non-Muslim ones have to get another marriage certificate from the Population and Civil Registry since marriage certificates from the church/vihara/temple are ineligible for government’s population registration. Weddings in those places of worship only serves as proof of marriage but not an official, government-registered one. In other words, the Petitioner added, it can be said that the Government only recognizes weddings of non-Muslims if the authorities have issued a marriage certificate.

The Petitioner claimed this to be a form of implicit discrimination and intimidation of citizens’ rights. He wondered how the Government made non-Muslims a special requirement based on Article 34 paragraphs (4), (5), and (6) of the Population Administration Law. Such discrimination would restrict non-Muslim citizens from obtaining their rights as citizens when facing bureaucracy. It also compels them to use scalpers to save time. The Petitioner alleged that the Government had led citizens into using money to solve this issue.

“I, the Petitioner, hopes the Constitutional Court will hand down a decision to declare the content of Article 34 paragraphs (4), (5), and (6) of Law No. 23 of 2006 on Population Administration unconstitutional and not legally binding conditionally if the marriage certificate from KUAKec remains valid while that from the church/vihara/temple (must have a civil marriage) in population registration in the Regency/City Population and Civil Registry is not recognized,” the Petitioner said while reading out his petitum virtually from Pematang Siantar.

Norm Implementation

Constitutional Justice Suhartoyo advised the Petitioner to make revisions to the petition, such as contrasting the articles petitioned and touchstones in the Constitution, explaining the Court’s authority in the judicial review of the case, and elaborating his constitutional impairment due to the petitioned norm.

“Is this an issue of norm or implementation? I believe there should not be any restriction to having population administration registration. What is the issue with such a restriction? If the population administration is the issue, find the missing requirements from the requested birth certificate?” he asked.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioner to observe five past petitions on the Population Administration Law and review their format and arguments in order to help him revising the petition.

“On the discrimination that [you] allege, please read the Constitutional Court Decisions No. 27 of 2007, No. 56 of 2012, and No. 22 of 2018 as the petition has not shown the correlation between the norm and the elaboration of constitutional impairment that [you] have suffered, which explains [your] constitutional rights. Hopefully [you] can ask a legal aid institute for help to explain the subject matter, since there doesn’t seem to be any constitutionality issue with the norm,” he said.

Next, Constitutional Justice Enny Nurbaningsih advised the Petitioner to provide a clearer argument in the posita. “Is the norm petitioned [in violation of] Article 28D and Article 29 paragraph (2) of the 1945 Constitution, or is it just a matter of implementation?” she asked.

At the end of the hearing, Constitutional Justice Enny announced that the Petitioner had 14 workdays to revise the petition and submit it to the Registrar’s Office no later than Monday, September 18, 2023 at 09:00 WIB to the Registrar’s Office, who will notify him of the schedule for the next hearing.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : Yuniar Widiastuti (NL)

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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