Published daily by the Lowy Institute

Religion over rights in Indonesian marriage law

Religion over rights in Indonesian marriage law
Published 1 Jul 2015 

Rights activists around the world are hoping that the historic ruling in favour of same-sex marriage in the US last week will help them achieve the same in their countries. For Indonesia, however, changes to the institution of marriage are a long way off, both in terms of law and public opinion.

While the Supreme Court in the US was deciding on the constitutional protection offered for same-sex unions, Indonesia's Constitutional Court was weighing in on other aspects of marriage, with far less progressive results.

The court last Thursday rejected two petitions for judicial review of Indonesia's marriage law, which asked for interfaith marriages to be permitted by the state, and for the minimum age of marriage for girls to be raised from 16 to 18 years. The court rejected both petitions, using religious arguments to defend the controversial 1974 Marriage Law.

Under the current law, girls and women can marry from age 16, while the legal age for men to marry is 19. Both can marry at an even younger age with the permission of the Religious Court or a government official. These conditions conflict with international standards as well as Indonesia's own law on child protection, which defines children as all individuals under the age of 18. In other words, the marriage law as it stands effectively legalises child marriage.

This has implications not only for children's rights, but also for reproductive health in Indonesia. The country this year is struggling to meet a Millennium Development Goals target on reducing its maternal mortality ratio, which is among the worst in the region and has only worsened in recent years. One factor driving the high rate of maternal deaths in Indonesia is teenage pregnancy, which poses health risks to mother and child. The judges in last week's court decision showed less concern for the dangers of teenage pregnancy and more for pregnancy arising from pre-marital sex, which they said would be prevented by keeping a low minimum age for girls to marry.

The panel of eight male judges and one female judge (who also happened to be the only dissenting voice on the issue) further referenced an Islamic teaching that allows marriage for girls at any age after reaching puberty. [fold]

Religion plays a strong role in marriage law in Indonesia. The second article of the Marriage Law states that a union is only considered legal if it is conducted according to one of the officially recognised faiths: Islam, Catholicism, Protestantism, Hinduism, Buddhism, and now Confucianism. This article does not specifically forbid interfaith marriage, but effectively prevents it by not allowing for the option of a civil ceremony, by deferring authority to religious laws on whether interfaith couples can be married, and by creating complications for civil registration of interfaith marriages after a ceremony has taken place. The petition at the Constitutional Court last week challenged the general interpretation of this article, which holds that one party of an interfaith couple must convert to the other's religion if the union is to be legally recognised. But the court rejected the petition, citing moral and religious values.

Lukman Saifuddin, the Minister for Religious Affairs, welcomed the court's decision on interfaith marriage, saying that it reflected the religious values of Indonesian society and the inseparability of marriage from religion. He made similar comments about the ruling by the Supreme Court in the US last week, stating via his Twitter account that 'In the Indonesian context, marriage is a sacred event and a part of religious worship. The state will not recognise same-sex marriage.' In Indonesia's active Twittersphere, the comment attracted some criticism, but mostly received support from netizens who agreed that marriage was primarily a religious matter. 

The difference between the discourse over marriage in Indonesia and the US this week is that in Indonesia, religion was prioritised over human rights. Allowing for girls to be married at age 16 impinges on their ability to fulfil their potential and their rights to health, education special protection as children. Requiring couples to marry under a single religion impinges on their rights to religious freedom. Separating law from religion in this matter will go a long way in fulfilling human rights in Indonesia.

Photo by Flickr user Ashley Ringrose.

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