Introduction

Is it really impossible in the Indonesian state that two people who are in love can freely marry without one of them having to convert?

E. SUNDARI and E. SUMIARNI¹

Indonesia is a pluralistic country that acknowledges cultural and religious diversity in its state motto Bhinneka Tunggal Ika (Unity in Diversity).

In this quite unique setting of the Indonesian state as being neither reli­gious nor secular,^[652] interfaith marriages are constantly and controversially debated. According to Otto, they, “remain one of the most problematic areas” in the Indonesian Marriage Law (Undang-Undang No. 1 Tahun 1974 Tentang Perkawinan), enacted in 1974 to substitute the colonial plural system of mar­riage laws.^[653] As a result of political and social struggles over the integration of religious law - and Islamic law in particular - into a unified national statute in the early-1970s, the Marriage Law does not contain any regulation explic­itly allowing or prohibiting marriage across religious lines.^[654] Instead, it only declares that a marriage is valid “if performed in accordance with the respec­tive religious law(s) and belief(s) of the couple concerned” (Art.

The dependency of marriage validity on religious law and the dualism of marriage administration have led to considerable difficulties for interfaith couples intending to marry. Particularly when a Muslim party is involved, marriage registrars of both branches have tended to refuse their services, in­voking their own lack of authority and religious law. In classical Islamic juris­prudence (fiqh), the view is generally held, based on several Quranic verses, that Muslims are prohibited from marrying non-Muslims. As an exception to this rule, based on Quran 5:5 and early Islamic practice, Muslim men are al­lowed to marry women of ahl al-kitab (Christians and Jews), as according to the majority opinion in classical Sunnifiqh including the Shafi^ti school of law predominant in Indonesia.¹¹ In contrast to this, the dominant interpretation of Indonesian Islam as mirrored by the legally non-binding Kompilasi Hukum Islam (Compilation of Islamic Law) of 1991 and by major Indonesian fatwa or­gans has come to prohibit marriage with non-Muslims altogether.

Although it is “generally regarded as common knowledge in Indonesia that marriage between persons of different religions is not allowed” unless religious difference is eliminated by conversion, the dependency of marriage validity on religion as laid down in Art. 2 (1) Marriage Law has never been authoritatively interpreted to contain an outright ban on interfaith marriages?² Consequently, legal scholars and practitioners are at odds over differing interpretations of the provision itself and the Marriage Law in general, depending on whether they attach greater importance either to religious law or to constitutional and human rights. Despite the legal confusion on the validity of interfaith mar­riages, the conclusion of such marriages has never ceased. According to the Indonesian civil law scholar Wahyono Darmabrata, there are four principal means to circumvent the national Marriage Law; one of them being (tempo­rary) conversion practiced by one of the partners to eliminate the difference ^{[659] [660] in religious affiliation (at least for the wedding ceremony).[661] [662] [663] [664] [665] [666] [667] In fact, following Seo, “inter-religious marriage has been principal in generating conversion in contemporary Indonesia”, making conversion less focused on spirituality and “more a matter of state administration”?4 As an alternative, interfaith couples marry in two religious ceremonies and register their marriage as a non-Islamic one in the civil registry?5 A third option is to file a suit: As will be shown, civil courts order civil registries to perform and register marriages concluded in a ceremony in accordance with the non-Muslim partner's religion or marriages concluded in a non-religious civil ceremony?6 Wealthier couples simply go abroad (mostly to Singapore or Australia) for marriage and have it acknowl­edged by the Indonesian state subsequently?7 Couples can also marry in an unofficial religious ceremony (nikah sirri) and refrain from registration with the consequence of the marriage being non-existent in the eyes of the state.}

This chapter discusses how the Indonesian state tries to find a balance between, on the one hand, the principle Ketuhanan Yang Maha Esa (Belief in One Supreme God) and the dominant Islamic legal discourse which pro­scribes interfaith marriage, and, on the other, implementing constitutional and human rights. The dilemma between provoking outright opposition by Muslim groups and sacrificing basic rights becomes especially obvious regard­ing constitutional guaranties such as equality before the law and religious freedom (Art. 28 D (1) and Articles 28 E and 29 (2) Constitution) as well as international law obligations?⁸ Accordingly, state bodies such as Komnas ham (National Commission on Human Rights) push for change that explicitly of­fers a legal solution for interfaith couples wishing to marry?⁹ The first part of the chapter portrays the dominant Indonesian interpretation of Islamic law proscribing interfaith marriages as reflected by the Compilation of Islamic Law and the fatawa of the two Muslim mass organisations Nahdlatul Ulama (Ulama Awakening, NU) and Muhammadiyah, as well as the Indonesian state- endorsed national fatwa council Majelis Ulama Indonesia (Indonesian Ulama Council, Mui).^{[668] [669] [670] [671] Nevertheless, several Indonesian Muslim organisations and scholars such as Ulil Abshar Abdalla of Jaringan Islam Liberal (Network of Liberal Islam) challenge this restrictive interpretation of Islamic law?1 In the second part, differences and major developments in the practice of the dual system of Islamic and civil courts will be outlined, paying special attention to the new Administration Law of 2006 (Undang-Undang No. 23 Tahun 2006 Tentang Administrasi Kependudukan). Containing a “veiled invitation” to le­galise interfaith unions, the law and its application in civil courts will be anal­ysed as a, “stealth strategy for legal change” adopted by the Indonesian state?7 The final part discusses the Constitutional Court's treatment of the appeal lodged against Art.}

Whereas the issue of interfaith marriages in Indonesia has already received scholarly attention?³ the new Administration Law and its application in civil courts as well as the judicial review of Art. 2 (1) Marriage Law still constitute a gap in research not only in Indonesian but also in international academia. By analysing these recent developments, this chapter sheds some light on the state's management of legal pluralism between statute law and religious laws. It argues that, given the sensitivity of the subject and the inseparability of mar­riage and religion especially in the dominant Islamic discourse, legal change regarding interfaith marriages is most likely to occur through the backdoor.

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