The (Non-)Regulation of Interfaith Marriages in the Marriage Law of 1974 and the Dual System of Islamic and Civil Courts

Against the background of various possible interpretations of Art.

Since the enactment of the unified Marriage Law in 1974, two major devel­opments in the practice of Islamic and civil judiciary and administration are discernible. In the period after the promulgation of the national Marriage Law, the branches continued their respective established pre-Marriage Law prac­tice by using distinct interpretations of the scope of Art. 2 (1) Marriage Law. Islamic courts began to hold that the provision applied for interfaith marriages and that they were valid as long as they were concluded between Muslim men and women of ahl al-kitab.5² In contrast to this, civil courts reasoned that there was a legal vacuum on interfaith marriages in the law and continued to apply the colonial Mixed Marriage Act.5³ Accordingly, interfaith marriages involv­ing Muslims - especially those who were turned away at the Islamic registry when it invoked Islamic law - were registered in the civil registry.54 At least from the 1980s onwards, however, this permissive approach towards interfaith marriages involving Muslims in both the civil and Islamic branch has changed. This policy change has been due to two developments, one of them being the ‘hardening of Islamic law’^[703] as promoted in the fatawa and the Compilation of Islamic Law outlined in the previous chapter. At least since the enactment of the Compilation, Islamic courts and marriage administration have tended to judge based on the general prohibition of interfaith marriages.5^[704] The other development has been Muslim criticism of the civil registries’ role in perform­ing marriages that involve Muslims despite lacking legal authorisation.

Up to the late 1980s, the Indonesian Supreme Court endorsed the applica­tion of the Dutch Mixed Marriage Act to fill the acknowledged legal vacuum on interfaith marriages.5^[706] This changed in 1989 with the influential and contro­versial decision in the so-called Andi Vony case, which is still the most recent Supreme Court ruling and the “most authoritative statement on the permis­sibly of interreligious marriage“5^[707] under the Marriage Law. The case involved Andi Vony, a Muslim woman, and a Protestant man who wanted to marry al­though prohibited by prevailing opinion under Islamic law.^[708] Instead of ap­plying the Mixed Marriage Act via Art. 66 Marriage Law, the Supreme Court based its decision to allow matrimony on the constitutional right to equality before the law (Art. 27 of the Constitution). The court reasoned that this right included the “basic right to marriage with fellow citizens even if there is a dif­ference in religion”^[709] and declared the Mixed Marriage Act invalid due to its normative origins divergent from those of the Marriage Law^[710] To overcome the problem of marriage registration in the case involving a Muslim party, the court argued that Andi Vony could not have wanted to conclude her marriage in accordance with Islamic religious prescriptions because she - as a Muslim woman - had turned to the civil registry. This supposed intention to marry not following Islam led the court to the conclusion that Andi Vony no longer “paid attention to her religious status” (tidak lagi menghiraukan status agamanya). Consequently, the civil registry as “the only agency that has the authority to perform or help perform marriages between prospective husband and wife who are both non-Muslims (emphasis mine)” had to accept the marriage ^[711] Thus, the court justified the civil registry’s authority to perform the marriage by implicitly suggesting that Andi Vony was no longer a Muslim, even though in general it considered the case as an interfaith marriage.

Following Lukito, the Supreme Court’s acceptance of interfaith marriage “based on general principles enshrined in the Constitution, was ample proof that the teachings of Islamic law would have to make way when these conflict­ed with state law”^[712] The court’s tacit assumption that Andi Vony abandoned Islam is nevertheless not only questionable regarding her diametrically op­posite testimony in court and the constitutional right to religious freedom^{[713] [714]} It is also problematic regarding Islamic law itself because the latter harshly and unanimously prohibits apostasy.66 Accordingly, the judgement might have paid respect to Islamic marriage law in that it circumvented the prohibited union between a Muslim woman and a Christian man, but then it clearly vio­lated Islamic penal law in a severe manner.^[715] In addition, it seems questionable to speak of a right to marriage across religious lines if the court effectively re­garded Andi Vony as an apostate. Indonesian legal circles, including civil court judges, have interpreted the judgement to mean that Andi Vony followed her partner's religion - Protestantism - in the realms of marriage^[716] The similarity to the Dutch Mixed Marriage Act declared invalid in the very same judgement is therefore undeniable. The Supreme Court decision thus confirmed the fear of Muslim critics that interfaith marriages lead to conversions to Christianity. Since the mid-1990s then, “it has been extremely difficult, if not impossible, to register inter-religious marriages. without one partner changing his or her religion”^[717]

The unclear legal status of interfaith marriages in the national 1974 Marriage Law and the difficulties of interfaith couples in obtaining legal marriage have been criticised repeatedly. For example, in 1992, the then Minister of Religious Affairs Munawir Sjadzili argued for a new bill expressly allowing interfaith marriages. Because of strong opposition, efforts like this have so far been with­out any result.7° However, the Administration Law passed in 2006 marks a new development in the issue of interfaith marriages. The law substitutes the plural colonial administrative regulations still in force, particularly in the realm of civil administration, and it originates from a human rights framework?¹ Being primarily procedural in nature, it was passed “almost unnoticed and hardly debated in public’?²

As a reaction to the civil registrars’ reluctance to perform and register inter­faith marriages by referring to religious law, the Administration Law not only stresses that registrars have no authority whatsoever to evaluate religious mar­riage obstacles.^[718] With Art.

A survey of civil court decisions on the validity of interfaith marriages in­volving Muslims that are accessible in the official Supreme Court database in­dicates that civil judges do not interpret Art. 35 Administration Law in itself as a sufficient ground to grant the petitions?⁸ Nonetheless, the general trend seems to be that courts grant such claims, regardless of the specific constellation of gender and religious affiliation. They base their decisions on constitutional and (inter-)national human rights laws.^[720] It is striking that the only two nega­tive decisions are based on the interpretation of Art. 2 (1) Marriage Law as cov­ering and permitting interfaith marriages if the parties' religions do so.^[721] In contrast to this approach, the vast majority of judgements allowing the con­clusion of marriage are based on the assumption that the Marriage Law does not regulate interfaith marriages and that difference in religion does not count as an impediment to marriage^[722] In all of the adjudications, the judgements - whether directly or indirectly and to different degrees - quote from or refer to the Supreme Court's decision in the Andi Vony case^{[723] [724] The argument of mutual love and the parties' desire to marry notwithstanding different religious affili­ations play a major role and the adjudications draw heavily on the constitu­tional rights of equality before the law (Art.}

With regard to the line of reasoning followed by the courts, the decisions applying Art. 35 Marriage Law can be classified into three main groups. Within the first group, the main legal basis for allowing interfaith marriages and their inclusion in the civil registry is the Dutch Mixed Marriage Act, even though the Supreme Court declared this act invalid in the Andi Vony case.^[725] In the second group, the courts invoke the 1970 Law on Judicial Power (most recently revised in 2009), regarding the principles of legal reasoning by judges^[726] The law covers the basic features of the Indonesian legal system such as the differ­ent judicial bodies, the appeals process and basic procedural principles^[727] In the third group, the decisions draw exclusively on rights of liberty as enshrined in the constitution and/or ratified international human rights law^{[728] [729] Two of the analysed judgements stand outside of this categorisation: In addition to the abovementioned judgement based on Art. 57 Marriage Law on mixed marriages, there is a Surakarta Civil Court decision that uses a circular letter from the Ministry of Home Affairs issued in 1990 as a legal basis in order to comply with the couple's wish for civil marriage. Technically, the letter is not intended for adherents of the state-recognised religions, as it deals with the registration of marriages between adherents of indigenous religious beliefs.88}

Civil courts thus do not always order the civil registries to perform and register wedding ceremonies in line with the non-Muslim partner's religion. Given the absence of further procedural regulations like that announced by Art. 38 Administration Law, and notwithstanding the exclusion of non­religious marriages in the Marriage Law, they sometimes decree the conclusion of civil marriages.^{[730] [731] In a case decided in 2014, the Probolinggo Civil Court explicitly directed the civil registry to marry an interfaith couple in a non­religious ceremony based on the Law on Judicial Power after having discussed the permissibility of civil marriage in the International Bill of Human Rights and the absence of its regulation in the Marriage Law.9° In general, the posi­tive judgements barely mention religious law while they essentially order the conclusion of marriages that are non-existent in the eyes of at least one party's religion[732] [733] This dual nature of the concepts regarding the validity of marriages in state law and religious law is best exemplified by the disclaimer contained in several Surakarta Civil Court decisions based on the application of the Mixed Marriage Act, stating that:}

[A]lthough the Petitioners' claim has been granted, it is inevitable that the Petitioners' marriage is invalid [tidak sah] in the eyes of religion (wheth­er Islam or Protestantism) corresponding to the condition of Art. 2 (1) Marriage Law. As it is judged as invalid from the viewpoint of religion, the sin [dosa] of the relationship between Petitioner I and Petitioner II as husband and wife is the Petitioners' responsibility to God. The state only gives a solution via national statute law for a marriage between two persons willing to marry who both want to keep their religious affiliation [i.e. without conversion of one party to eliminate religious difference.^²

In respect of Art. 35 Administration Law as a ‘stealth strategy for legal change’,^[734] the general trend thus seems to be that civil courts follow the ‘veiled invitation' to allow interfaith marriages. With all due caution given the sample size of the survey and the assumed incompleteness of the Supreme Court da­tabase, Lukito’s conclusion regarding the Supreme Court’s judgement in the Andi Vony case can therefore also be drawn regarding the application of Art. 35 Administration Law: “[t]he teachings of Islamic law would have to make way when these conflicted with state law”^[735] It is striking in this regard that almost all positive judgements draw on the Supreme Court’s reasoning in the Andi Vony case, except for the part indicating the abandonment of religion or the in­validation of the Mixed Marriage Act. Thus, the courts deviate from this part of the Supreme Court’s reasoning and instead use different legal bases to decide their cases in a way they consider to be more fitting and accurate. In doing so, the civil courts also find legal bases for meeting the parties’ wish for civil mar­riage at the expense not only of the concept of marriage as enshrined in the Marriage Law but also of religion itself. However, Art. 35 Administration Law is not always interpreted to allow interfaith marriages, as the two negative judge­ments show. The regulation might also make interfaith marriage registration more difficult if civil registries understand the court decision as a condition for marriage permission and registration^[736]

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