Who Is to Define Religious Law? The Judicial Review of Art. 2 (1) Marriage Law in the Indonesian Constitutional Court

The discussion on interfaith marriages reached its most recent peak after four legal consultants and one law student brought the debate to the Constitutional Court in September 2014.

The case attracted much attention from the media. The petitioners claimed that Art. 2 (1) Marriage Law was materially and formally unconstitutional and in conflict with Pancasila state philosophy as well as with ratified international human rights law, as it had been used by the registries to refer to religious law to dismiss interfaith marriages. They argued that the non-accommodation of inner-religious pluralism on the validity of interfaith marriages in favour of interpretations of religious laws as prohibiting them violated the rights to freedom of religion and marriage.^[737] Furthermore, they claimed that without even considering the different interpretations between and within the respective religions, Art. 2 (1) Marriage Law did not establish legal certainty by leaving space for multiple interpretations on the validity of interfaith marriages, leading to unequal and discriminative treatment of citizens in the registries.9^[738] They also referred to the hidden remedy offered by Art. 35 Administration Law and argued that this “legal channel” (jalur hukum) constituted no real solution since judges could still decide to refuse the claims brought before them.9^[739] ^{^[740] In order to harmonise Art. 2 (1) Marriage Law with the constitution and international human rights treaties, the petitioners suggested changing it. According to them, the article should read: “A marriage is legitimate if it has been performed according to the laws of the religions and beliefs of the parties concerned, as long as the interpretation of the religious laws and beliefs is placed in the hands of the couple willing to marry (emphasis mine).”99 Accordingly, the petitioners upheld the dependency of marriage validity on religious law, but rather than delegating the authority to determine the exact stance of religion in the matter to the state via the registries, they suggested handing it to the couple wishing to marry.^[741] The Constitutional Court perceived the case as a highly sensitive issue that touched the very self-understanding of the Indonesian state.
Therefore, it invited the president and official representatives of all state-recognised religions as well as a coalition of NGOs concerned with problems related to human rights, tolerance and peace to give their opinion as interested parties (pihak terkait)}^m MUI, Muhammadiyah, NU, and the fundamentalist organisation Front Pembela Islam (Islamic Defenders Front, fpi)^[742] ^{^[743] ^[744] ^[745] ^[746] represented Islam. After a lawsuit lasting more than one year, the court rejected the judicial review as “having no legal basis” (tidak beralasan hukum).^w3 In its relatively short statement, the court explained that “in the life of nation and state based on Pancasila and the Constitution, religion becomes the foundation and the state has an interest in matters of marriage.’™⁴ It emphasised the social relevance of religion in Indonesia as well as the religious aspect of marriage and reaffirmed that the state-recognised religions were to decide on marriage validity, whereas the state only intervened in administrative matters.^ω5 In an implicit manner, the court thus argued that the state did not intervene in religious matters when refusing marriage, as the petitioners had claimed, but only accommodated religious laws. Referring to Art. 28 J (2) Constitution on the limitation of constitutional rights, the court elaborated that in order to prevent conflicts while putting into practice the constitutional right to marriage, the state had to issue regulations, “in accordance with moral considerations, religious values, security, and public order in a democratic society.”^[747] ^{^[748] ^[749] ^[750] ^[751] ^[752] The court's rejection of thejudicial review mainly reflects the arguments forwarded by the government, MUI, and fpi, who explicitly called on the court to reject the petition since in their eyes, Art.
2 (1) Marriage Law did not violate any constitutional rights but in fact was ensuring them.^ω7 mui and fpi took up the petitioners' constitutional and human rights law rationale and referred to the role of religion in the Pancasila state, instead of focussing on Islam. In their statements, the three interested parties defined marriage as “sacred” (sakral) and an act of “worship” (ibadah), with the result that it could not be treated only as a civil law action.^ω8 They argued that to realise Pancasila, the state was obliged to secure the ideals of every religion based on Ketuhanan Yang Maha Esa.109 The state performed this duty by accommodating religious law in the exact same manner as interpreted by religious authorities in applying Art. 2 (1) Marriage Law. In doing so, the dependency of marriage validity on religious law as stipulated by the article was the exact realisation of the right to worship in accordance with religion as guaranteed under Art. 29 (2) Constitution.™ By implicitly defining religious freedom as the duty to profess religion in accordance with authoritative interpretations of religious law and neglecting the aspect of negative freedom of religion, the interested parties thus promoted an understanding of the concept distinct from the one prevalent in international human rights treaties. The government and fpi also pointed to the fact that it was impossible to guarantee the rights of both parties in a marriage if they did not adhere to the same religion, given the distinct and contradictory rules and procedures in the respective religious laws.111 As done by the Constitutional Court judges, the government and mui placed Art. 2 (1) Marriage Law in the context of the constitutional regulation on limitations of individual rights and freedoms (Art. 28 J (2) Constitution).^[753] ^{^[754] ^[755] ^[756] ^[757] ^[758] In the eyes of the government, MUI and fpi, the petitioners’ proposal was an attempt to install foreign, secular values into the Marriage Law, which would not only lead to social disorder, but was also incompatible with the state being based on Ketuhanan Yang Maha Esa and the right to worship in accordance with religion.11³ According to fpi, the proposal was “not only a strike against religious norms but [it would] also render the customary marriage procedures of every single ethnic group in Indonesia meaningless"ⁿ⁴ Assuming that every citizen was a religious being wishing to conclude marriage in accordance with religious law and considering marriage as an act of worship, the issue of interfaith marriages becomes a question of belief in the parties’ line of reasoning.
As the MUI put it, the different legal circumvention practices used by society to get married despite difference of religion constituted an act of disobedience against religious law rather than raising doubts about the constitutionality of the norm.11⁵ Reacting to the petitioner’s human rights law argument, the mui claimed that owing to the distinct “social-religious cultural reality of Indonesia” (realitas sosio-religio-kultur Indonesia) human rights could not be implemented as freely as in other states.ⁿ⁶ Limiting marriage only by age and the consent of both parties and not by religion - as regulated in international human rights law - would certainly lead to legal disorder with consequences beyond description. Furthermore, the acknowledgment of the udhr did not affect the state’s right to issue regulations to maintain social order, equally being a collective right honoured by the universal values of international human rights.ⁿ⁷ In contrast to the line of reasoning forwarded by the government, MUI and FPI, the NGO Tim Advokasi Untuk Kebhinekaan and the representatives of the Catholic and Protestant Church largely supported the petitioners’ criticism on the application of Art. 2 (1) Marriage Law.^[759] The statements of the other related parties neither included any explicit statement on the constitutionality of Art. 2 (1) Marriage Law, nor a plea to reject or accept the petition. They instead contained a discussion on both the concept of marriage and the validity of interfaith marriage in their respective religions with Hinduism proscribing matrimony with non-Hindus and Confucianism only allowing for a blessing as a recognition and notification that marriage has been concluded.ⁿ⁹ The two Muslim mass organisations Muhammadiyah and NU declared their positions from the perspective of Islamic law, Muhammadiyah referring to its fatwa and NU listing the different stances in classical Islamic law arguing for an Islamic proscription of interfaith marriages?²⁰ The representative of Buddhism refrained from presenting legal opinions.121
In summary, the Constitutional Court's decision and the rejection of the judicial review of Art.
2 (1) Marriage Law show the central importance of religion and religious law within the Indonesian legal discourse on marriage to the detriment of religious freedom and the right to marriage as understood in international human rights law. During the process, all involved parties argued with distinct interpretations of both the Pancasila-state philosophy and Ketuhanan Yang Maha Esa. At the same time, the decision to reject the judicial review is a further example of the Constitutional Court's, “critical position as an arbiter between the central government and Islam, because the Constitution contains both Pancasila - Indonesia's state ideology, which requires a role for religion within the state - and provisions guaranteeing freedom of religion for citizens.”^[760] ^{^[761] ^[762] ^[763] This is because, as argued by Tobroni, the decision places the state in an intermediate position, since it neither supports nor rejects interfaith marriages. In addition, it neither supports those parts of society who plea for legal change, nor those groups - above all Islamic ones - that consider interfaith marriages a violation of religious law. As Tobroni puts it: “The decision of the Constitutional Court is simply a confirmation that the state is obliged to carry through the implementation [i.e. registration] in accordance with the religious organisation’s interpretation of its religious doctrines.”^³ By maintaining the status quo, the court leaves open the possibility for interfaith couples to get married, albeit facing difficulties in having their marriage registered. It also leaves it up to the administration at local levels to define their policy towards interfaith marriages and to diverge from the dominant interpretation of religious laws. Against this background, the decision can be seen as the continuation of the “wait-and-see attitude” that the state has adopted in approaching interfaith marriages with the promulgation of the national Marriage Law in 1974.12⁴ 5}}}}}

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Source: Oberauer Norbert, Prief Yvonne, Qubaja Ulrike (eds.). Legal Pluralism in Muslim Contexts. Brill,2019. — x, 258 p.. 2019

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