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Religious Law And The Problematic

Marriage Law
Joeni Arianto Kurniawan
A researcher and lecturer at Airlangga Universitys School of Law, Surabaya;
Alumnus of the International Institute for the Sociology of Law (IISL), Oati, Spain
Jakarta Post, 26 September 2014
Many have been surprised by a judicial review motion filed by students
and alumni of the University of Indonesias school of law with the
Constitutional Court (MK) against Marriage Law No. 1/1974, which they
say contradicts the Constitution because it bars citizens from marrying if
they are of different faiths.
Does the contentious Article 2 section (1) of the law really prohibit
interfaith marriage? The article stipulates: A marriage is legal if it is
conducted according to religious law.
Since the legality of a marriage is firstly determined by whether or not it
is conducted according to religious law, there are at least two serious
consequences.
Firstly, the law assumes that all people in Indonesia adhere to a religion
recognized by the state.
Such an assumption doesnt reflect the factual situation of Indonesian
society because there are at least three groups of people who will
encounter obstacles if they want to conduct a legal marriage: those who
do not profess any religion, those who embrace a religion not recognized
by the state and couples who follow different religions.
Regarding the first group, these people may and do exist, and their
existence does not contradict Article 29 section (1) of the Constitution,
which explicitly stipulates: The state is based on the Deity.

Thats because religion and belief are two different things.


A person may have any belief. Belief is subjective and individual in its
characteristics, and therefore can differ from the beliefs of others.
Religion, on the other hand, is an institutionalized belief, which is
developed and defended in a group and needs institutionalization to
ensure the beliefs of its adherents when they institute an organization
based on similarity of belief.
Therefore, one doesnt have to profess a religion just to have a certain
belief, including the belief in God. Aliran Kepercayaan Kepada Tuhan,
or Javanese mysticism, is an example of this.
Regarding the second group, there are various indigenous religions in
Indonesia that are not recognized by the state, such as Kaharingan (the
religion of the Dayak tribes), Sunda Wiwitan (the religion of the Baduy
tribe) and Agama Adam (the religion of the Sedulur Sikep community),
to name a few.
There have been many cases of people unable to register their marriage
because their religions are not among the official religions, and
consequently, their marriage has not been considered legal by the state.
The second problem related to the controversial article of the Marriage
Law concerns the so-called religious law.
From the legal science point of view, there are some requirements that a
set of norms have to meet to be qualified as law.
One of the most important conditions is that such a set of norms be
established and enforced by and within a social institution, either formal
or informal.
In this way, the norms can be enforced over the members of the
institution, and any violation of the norms will have particular
consequences for the perpetrator.
Norms that fails to meet these qualifications are considered moral values
only.

Religious law therefore needs a religious institution in order to have the


law enforced. Because such laws are embedded in an institution, their
jurisdiction is limited to the members of that institution.
The problem is that not all adherents of a religion are also members of a
religious institution, because many, if not most, of them accept religious
teachings but refuse to attach themselves to any religious organization.
Religion, therefore, is simply a belief that works individually. Therefore,
the set of norms they believe in serves not as a law but only as moral
guidance that works voluntarily and individually and can be implemented
differently from one believer to another.
Forcing someone to obey a particular religious law means forcing him or
her to be attached institutionally to a religious organization, which goes
against the Constitutions stipulation that freedom of religion is a
citizens prerogative.
Furthermore, there are numerous religious organizations operating in
Indonesia that adhere to the same religion.
Pluralism, then, is a characteristic of the nation; each religious institution
will obviously uphold its own laws.
Which religious law should be chosen to validate a marriage? Does the
state recognize any religious law from any religious organization?
Given the fact that the state does not recognize all religions, it seems the
issue of interfaith marriage will continue to pose a problem, unless the
Constitutional Court abolishes the controversial article of the Marriage
Law.