Klibel5 law 16

Proceeding - Kuala Lumpur International Business, Economics and Law Conference Vol. 4.
November 29 - 30, 2014. Hotel Putra, Kuala Lumpur, Malaysia. ISBN 978-967-11350-4-4
136
A DEVELOPMENT ON THE ROLE OF STATE:
THE LEGAL DAN PRACTICAL COMPLEXITY ON INTERFAITH MARRIAGES IN INDONESIA
Nanda Saraswati
Faculty of Law Brawijaya University
Jalan MT. Haryono No.169, Malang, East Java, Indonesia
Email : anandasaraswati@yahoo.com,
Kadek Wiwik Indrayanti
Faculty of Law Merdeka Malang University
Jalan Terusan Raya Dieng No.62-64 Malang, East Java, Indonesia
Email : astinaagra@yahoo.com,
ABSTRACT
Interfaith marriage today has become a phenomenon that could not be separated from the life of Indonesian society laden with pluralism. It is still one of the most complicated and sensitive issues in the country, involving the questions of the role of state and the individual’s rights to choose a partner. Statistics shows that the number of interfaith marriage continues to increase. Unfortunately, the validity of interfaith marriages is not or has not yet been strictly regulated by laws and regulations in Indonesia. This raises a legal vacuum related to the validity of marriages of different religions in Indonesia. If the existing policy continues to raise issues related to interfaith marriage, it will obviously have an impact on the performance of the civil registration office, or known as Dinas Kependudukan dan Catatan Sipil (DKCS), as a state apparatus that directly provide services to the public. The legal vacuum in the 1974 Marriage Law has led to different and various understandings and interpretations in the community as well as the government causing many couples circumvent the law in ways that should not be the case if the country acts more decisively. Given the aforementioned facts and conditions, there are at least two main issues at hand. First, this article will analyze about the role of the state in providing legal protection towards the validity of interfaith marriage in Indonesia. This is related to the laws, both national and international law, which provides protection to marriages of different religion. Secondly, the analysis will focus on the role of state and its contribution to the technical implementation of interfaith marriage in Indonesia today. This is related to the position of the civil registration office in registering interfaith marriages and also courts in providing orders and determining the validity of interfaith marriages in Indonesia.This issue has been subject to various interpretations by scholars and states from different aspects. Although religious aspects could not be totally excluded from the analysis process, this article will focus on the national and international law aspect.
Keywords: interfaith marriage, law, human rights, role of state, civil registration office
INTRODUCTION
Interfaith marriage today has become a phenomenon that could not be separated from the life of Indonesian society laden with pluralism, where such plurality comes not only from ethnic, racial, cultural, and language aspect, but also religious aspect. The practice of interfaith marriage has been done by several couples, including Ahmad Nucholish (Moslem) with Ang Mei Yong (Confucianism) in 2003, and Deddy Corbusier (Christian) with Karina (Moslem) in 2005. The data shows an increase of interfaith marriage in Indonesia. In Yogyakarta (DIY) for example, there are at least 15 interfaith marriages from 1.000 marriage registered. In 1990, that number increased into 18 cases. The program held by Indonesian Conference on Religion and Peace (ICRP) i.e.: Harmonious Family Counselling and Advocacy registered between 2005 and 2007, from 100 couple who got engaged in interfaith marriage, 60 couples succesfully married. From 2012-2014, interfaith marriage reached 1.109 marriage

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couples. The data shows that interfaith marriage continously increases. Unfortunately, the legality of interfaith marriage is not or has not been clearly regulated by regulations in Indonesia.
Article 2(1) of the Law Number 1 of Year 1974 on Marriage (1974 Marriage Law) provides that “a marriage is legitimate, if it has been performed according to the laws of the respective religions and beliefs of the parties concerned.”1 This is emphasized in the implementing regulations, which require that “the marriage ceremony shall be performed according to the laws of the respective religion and faith.”2 The 1974 Marriage Law also requires that every marriage must be “registered according to the regulations of the legislation in force.”3 The implementing regulations state that non-Muslim marriages must be registered with the Civil Registry Office following the religious ceremony,4 while Muslim marriages must be registered with the local Office of Religious Affairs. These provisions have been interpreted as prohibiting marriage between people of different religions. This is because, in order for a marriage to be registered, a marriage ceremony must be conducted in accordance with a recognized religion, and in most cases at least one of the parties will adhere to a religion that does not allow a person to marry someone of a different faith.
The 1974 Marriage Law does not explicitly forbid or allow marriage between people of different religions, given the rise of a considerable debate regarding its interpretation and application. Some argue that there is a legal vacuum. In connection with that, the Supreme Court of Indonesia argued that it is unjustifiable that because of legal vacuum such social needs and reality as mentioned remains lawfuly unsolved. Letting the problems continued will cause negative effects in societal aspect and religious aspect in the form of the smuggling of social and religious values and/or positive law.5 This will also affect the interpretations made by the government. On the government side, if the policies in Indonesia still continuously raises problems related to interfaith marriage, then such thing will an impact to the performance of the Dinas Kependudukan dan Catatan Sipil (DKCS) or the Population and Civil Registration Office (Civil Registration Office) as the state apparatus that directly serves public in matters of marriage records. This is related to what foundation is being used by such institution that able to protect citizens especially for interfaith couples who will engage in marriage. The difference of perception and interpretations between societal group and government on the legality of marriage in Indonesia has made the government difficult to implement one rule to regulate good attitudes in all marriage aspects that are attainable to all citizens. This is significant to understand especially related to the state’s responsibility to protect and serve its citizens’ rights.
INTERNATIONAL INSTRUMENTS ON INTERFAITH MARRIAGES
Interfaith marriage is recognized in a number of international instruments, such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and Convention on the Elimination of All Forms of Discrimination Against Women.
1. Universal Declaration of Human Rights 1948
The Universal Declaration of Human Rights mentioned that men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.6 Marriage shall be entered into only with the free and full consent of the intending spouses.7 Principles in this declaration have been recognized as customary international law.8
1 Law No. 1 of 1974 on Marriage art. 2(1)
2 Government Regulation No. 9 of 1975 on Marriage art. 10(2)
3 Law No. 1 of 1974 on Marriage art. 2(2)
4 Government Regulation No. 9 of 1975 on Marriage art. 2(2)
5 Supreme Court Decree No.1400/1986/1989
6 Universal Declaration of Human Rights 1948, Article 16 paragraph (1)
7 Ibid, Article 16 Paragraph (2)
8 Although the UDHR is non-binding upon the signatories, some contend of the provisions of the UDHR are approaching the status of jus cogens or customary law and therefore may be regarded as holding significant standing and approaching the nature of a binding obligation upon all states.

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2. International Covenant on Civil and Political Rights (ICCPR) 1966
Everyone shall have the right to freedom of thought, conscience and religion. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.9 Indonesia has ratified this covenant through Law number 12 Year 2005 on International Covenant on Political and Civil Rights.
3. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) 1979
The convention states that the States Parties shall take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women: (a) The same right to enter into marriage; (b) The same right freely to choose a spouse and to enter into marriage only with their free and full consent.10 Indonesia has also ratified CEDAW through Law number 7 Year 1984 on July, 24th 1984.
INTERPRETATION ON THE LAW
In a number of countries, interfaith marriages are still generally frowned upon due to customary and or religious norms, and in some places, such unions are illegal or impossible. Basically, it needs to be understood that the problems on interfaith marriage are not on religious difference itself but on state’s responsibility to serve and protect citizens rights. What is the issue at this matter is the vertical relation of state and citizens, not about horizontal relation concerned with relations of citizens with various religions, faith, and interpretations. This is important to note because the problem of interfaith marriage in Indonesian context is a problem of law, while religious interpretations on interfaith marriage is theological problems and religious interpretations. Since Indonesia is not a religion state therefore we have to refer to national law.
Interfaith marriage is a marriage between man and woman who have different religion. Interfaith marriage can occur between Indonesian citizens who have different religion or faith. It also can occur among couples whom one of the spouse have different nationality and religion or faith. In the second amendment of the 1945 Constitution where article 28 E paragraph (2) stated that everyone is entitled with the rights of freedom of religion, faith, expression, and attituted according to her/his conscience. Some regulation in Indonesian positive law which regulates the legality of interfaith marriage are:
1. Law Number 1 Year 1974 on Marriage (1974 Marriage Law)
Marriage in Indonesia is regulated through Law Number 1 Year 1974 on Marriage. The definition on the legality of marriage is regulated in Article 2 paragraph (1) which state: “Perkawinan adalah sah, apabila dilakukan menurut hukum masing-masing agamanya dan kepercayaannya itu.” It means that a marriage is legitimate, if it has been performed according to the laws of the respective religions and beliefs of the parties concerned.” Paragraph (2) states that every marriage must be registered according to the regulations of the legislation in force. The provisions on marriage records are further regulated by Government Regulation Number 9 Year 1975 on The Implementation of Law Number 1 Year 1974 (“PP No.9/1975”). If a marriage conducted by moslems then the recording should be done by state employee registrar as referred by Law Number 32 Year 1954 on Marriage, Divorce, and Reconcilliation. As for those who conducted marriage according to religion and faith which are not Islam, then the registration is conducted in the Civil Registration Office.11
Article 2 paragraph (1) is the most widely interpreted article. Some scholars and legal professionals argue that such article dose not explicitly forbid marriage between persons of different religion. They argue that
9 International Covenant on Civil and Political Rights 1966, Article 18 paragraph (1)
10 Convention on the Elimination of All Forms of Discrimination Against Women 1979, Article 16
11 Government Regulation Number 9 Year 1975 on The Implementation of Law Number 1 Year 1974 on Marriage, Article 2

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such article is a form of restriction by the state towards the rights and freedom in marriage, where such restriction is highly contradicts with the principles regulated in the Universal Declaration of Human Rights and the 1945 Constitution which is the Indonesian constitution itself. The background of the formulation of Law on Marriage that involved many stake holders, among many others are Government and religious group has resulted in many provisions in Law on Marriage siding with the majority. Others also argue that such article does not contain any provision that states religion difference between men and women as a basis to ban that marriage. This is in accordance with 1945 Constitution Article 27 which decides that all citizens are equal before law, including, equal rights to marry with fellow citizens even though shares different religion, and as long the laws do not decide that religious difference is a basis to ban marriage, therefore this principle is in accordance with the spirit of 1945 Constitution Article 29 on the state’s guarantee towards every citizen to hold their own religion. On the other hand, that Article is instead being used as confirmation on the religious nature from a marriage, where such marriage is legal if conducted in accordance with each religion and belief. This party argues that the explanation of Article 2 paragraph (1) states that there is no marriage outside the law of religion and belief.
2. Law Number 39 Year 1999 on Human Rights (1999 Human Rights Law)
Article 4 states that the rights to live, free from torture, privacy rights, thoughts and conscience, freedom of religion, the rights to be free from slavery, the rights to be recognized as person and equality before the law, and the rights not to be prosecuted under retroactive law is human rights that unreducable under any circumstance and by anyone.12 While Article 10 states that (1) Anyone has the rights to make a family and continuing descendants through legal marriage; (2) Legal marriage can only be conducted by freedom of choice of the man and woman, according provisions of legislation.
The 1999 Human Rights Law that actualy recognizes free will of the man and the woman to engage in marriage, i.e.: a will that is born from sacral intention without force, fraud, or pressure from anything and anyone towards the men and woman, also faced with a dead end in the form of words that stated a legal marriage should be conducted in accordance with the rules of law. Of course what is meant here is as such rule of law is Law on Marriage. It returns again to the interpretation that there is no marriage outside the law of religion and faith. In other word, a marriage can only be conducted if both the man and woman shares the same religion.
3. Law Number 33 Year 2006 on Population Administration
According to Article 34, legal marriage according to law and regulation must be reported by citizens to implementing agencies no later than 60 (sixty) days since the marriage date. Marriage for moslem citizens recorded by District Office of Religious Affairs in accordance with regulations and laws.13 While Article 35 states that as mentioned in Article 34 also applies to marriage validated by court. The explanation of Article 35 point (a) stated, what is meant by marriage validated by Court is interfaith marriage. However, this will totally depend on the decision of the Court itself which will be analyzed below.
THE PRACTICAL IMPACT AND DIFFERENT METHODS
Different interpretation on such article cause the Supreme Court of Indonesia to state that it is injustifiable if because of such legal vacum results in such social needs and reality remains lawfully unsolved. Because letting such problems to be drag on continously will cause negative impacts both in societal life and religious life in the form of the smuggling of social values, religious values, or postive law.14 However, such provision which is normatively not accomodating interfaith marriage has resulted in some practice to circumvent the existing law. There are four popular methods among couples with different religion who want to conduct interfaith marriage, i.e.:
1. Marriage conducted according to each religion;
12 Law Number 39 Year 1999 on Human Rights, Article 4
13 Law Number 23 Year 2006 on Population Administration, Article 34 paragraph (1)
14 Supreme Court Decree Number 1400/1986/1989

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2. Temporary convert towards one of the religion;
3. Marriage overseas; and
4. Requesting a court’s order.
Viewing such methods, the most common option is for one person to convert to their partner’s religion prior to marriage so the marriage is valid and recognized by the state. This is conducted to acquire Marriage Certificate. Reportedly in most cases, following registration the person who converted continues to practice their original faith. Overseas marriages are recently also often chosen by couples with different religion, with Singapore and Australia being the two most favored countries.This choice is often taken by couples who are financially secured. However, overseas marriages are not free from problems especially on registering such marriage in the Civil Regitration Office when they return to Indonesia. While on the last point, it is stated that a court’s order is one of the ways to be able to engage in interfaith marriage. This is actualy accomodated by Law Number 35 Year 2006 on Population Administration that enabling couples with different religion to register their marrige as long it has been through a court’s order. However, interfaith marriage which is legalized by the Civil Court does not mean such couple gets married in the Civil Court. The Court only has the capacity to permit and not wed the couple with different religion, because the Court’s capacity is not for that. The status of couple with different religion in Civil Court also still results in problems especially those related with the registration process.
As a state apparatus, the main responsibility of the judges is to decide a case before them in conjunction with the legal philosophy followed by the state itself. Judging the case so as to outlaw interfaith marriage would, however have meant contravening the general principles of national law. In that sense, using the Marriage Law as a legal basis for proscribing interfaith marriage is diametrically in contradiction with the development of a national legal philosophy.
THE INCONSISTENCY OF INTERFAITH MARRIAGE REGISTRATION
Another problem which occurs from interfaith marriage is related with the marriage registration. In Indonesia, there are two institutions that register marriage, i.e.: Office of Religious Affairs for moslems and the Civil Registration Office for those who are not moslems. The interfaith marriage is registered in the Civil Registration Office.
Basically, the Civil Registration Office has the role in conducting local government affairs in population and civil registration in each city. Related with marriage registration, in the Law on Marriage stated that each marriage is registered according to the laws in force. Therefore, the role of the state here is only to register marriage.15 It means, the state only regulates the administrative aspect of marriage. But in reality Article 2 applies cumulatively. It means, those two paragraphs in the article are implemented to legalize a marriage. This is understandable because it is a consequence of the system of law products, where each component is inseparable from others, all is interconnected. However, such provisions results in the legitimacy of a marriage before the state eventhough a marriage already conducted in accordance to particular religion. In the end, although a marriage is considered legal according to particular religion but if it is not registered to an authorized government office (Office of Religious Affair for moslems and Population and Civil Registration Office for non moslems), then such marriage is not yet considered legitimate by the state. In many cases, the legitimacy of a marriage juridical is indeed crucial to be proved by a marriage book or certificate earned from the Office of Religious Affairs or the Civil Registration Office.
THE POSITION OF THE CIVIL REGISTRATION OFFICE AND COURT TOWARDS INTERFAITH MARRIAGE
As mentioned above, the second problem from interfaith marriage is the registration in the Civil Registration Office. The legal vacum related to the legitimacy of interfaith marriage in Indonesia results in different interpretation among many parties, including the government. Such interpretation will impact the performance of the Civil Registration Office as state apparatuses that directly serves the people. This is related to
15 Law Number 1 Year 1974 on Marriage, Article 2 paragraph (2)

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what foundation is used by that institution that can protect civil rights especially for those couple with different religion who want to engage in marriage in Indonesia. In reality, there are various practices of the Civil Registration Office.
With Law Number 35 Year 2006 on Population Administration, an interfaith marriage is actualy possible as long as it being through by court’s decision. But it need to be stressed that interfaith marriage which is now being legalized by Civil Court, does not mean that couple are married in Civil Court. The court capacity only to permit not to wedded couple with different religion, because the court’s capacity is not for that.
With the decision of Civil Court on Interfaith Marriage, Civil Court can give decision based on the provisions of Article 10 paragraph (1) Law Number 4 Year 2009 on The Judgemental Power, which states that the court is prohibited to refused to examine, hear and decide a case filed under the pretext that the law does not exist or that the law is unclear, but is obliged to examine and hear. The state Court has the authority to accept, examine and hear request if such case is determined by rules and regulations.
Eventhough acquired the decision from civil court, in reality, the registration in the Civil Registration Office did not always conduct the same practice. Since the year 2000, Malang Population and Civil Registration Office has never registered and issued Quotation of Marriage Certificate for Interfaith Marriage. Such refusal is based on Law Number 23 Year 2006 on Population Article 35 which is considered contradict with Article 2 paragraph 1 Law Number 1 Year 1974 on Marriage. Bali, which was considered bythe society as the most moderate province in accepting various belief, since the end of 2010, Denpasar State Court refuse the request of couples with different religion on the basis or reason to consider negative impacts for the descendants (children) in the future. In 2011, Denpasar State Court still gave decision to couple with pregnant female, but for the following year Denpasar Court refused.16
Regarding the technicality of the registration of interfaith marriage, there is no shared perception among the Civil Registration Office apparatuses in various cities in Indonesia. Therefore, the measures taken among those Civil Registration Offices are not the same. This is due to the inconsistences in several rules that regulates interfaith marriage that results in various interpretation among the Civil Registration Office. This situation gives impacts on the rights of couples with different religion left unprotected. The marriage registration is also the citizen’s human rights that need to be protected because based on Law Number 39 Year 1999 it is stated that everyone has the right of recognition, guarantee, protection, and a just law treatment and acquire law certainty and equal treatment before law.17
In the context of nation state, there may not be any sectarian law product that only benefits particular religious group and neglecting other religious community. Each citizen’s right is guaranted of the same rights and equality, despite of their religion, faith, and belief. Any consideration and reason to make rules of law have to consider the equality of citizens in fulfilling their rights, without discriminating one group of citizens and the others on the basis of religion and belief. Therefore, in the future for a solution to interfaith marriage in Indonesia, needs an effort to conduct a comprehensive research of the concept of marriage legitimacy where the results can give contribution theoretically on law system component sector, i.e.: law substance aspect and law structural aspect. Contribution on law substance aspect conducted because there is legal vacum in Law on Marriage for interfaith marriage. Such legal vacum can be conducted by forming a uniformed judicial rules towards the legitimacy of interfaith marriage to create law certainty. However, every formulation of law must considerate first the state obligation to promote, serve, and fulfill basic rights of it’s citizens. Furthermore, it is a principle of Indonesian nationality that all people have a right to enter into a marriage contract with anyone else, regardless of their backgrounds of custom or religion. The state has thus have no right to prohibit marriage between citizen of different religions since constitutional law itself secures the human rights of each person, especially since with the principle of national law all citizen do not recognize differences of background, beyond the variable of nationality itself.
Furthermore, the contribution on law structure aspect (which has various interpretations) can be conducted by forming special service units to give knowledge and understanding to stakeholders especially the
16 Interview with the Civil Registration Officer of Denpasar, 2011
17 Law Number 39 Year 1999, Article 3 Paragraph (2)

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Population and Civil Registration Office and also courts as state apparatus. Therefore, in the future the implementation and protection towards human rights can be experienced by couples who want to engage in interfaith marriage.
CONCLUSION
The number of interfaith marriage in Indonesia has increased. The rights to conduct interfaith marriage is also regulated in several international instrument such as the Universal Declaration of Human Rights 1948, ICCPR 1966, and CEDAW 1979. Unfortunately, the protection towards couples who want to engage in interfaith marriage is not accommodated in the rules of law in Indonesia. Such legal vacum causes the couples to commit practices in order to circumvent the law, such as temporary converting to one of law of religion, overseas marriage, or asking for court’s decision. The existence of several inconsistent rules that contradict each other also influence the performance of Population and Civil Registration Office as staet apparatus that directly serves society in registration process. This situation has triggered the absence of unified perception among the apparatuses of the Civil Registration Office in various cities in Indonesia that gives rises in different measures as well. This impact on the rights of couples with different religion remains unprotected.
The early effort which can be carried out by the government is to form rules and regulations of law material that uniformed towards the legitimacy of interfaith marriage in order to create law certainty. The uniformed rules will automatically form uniformed opinion among Population and Civil Registration Office and also courts. The formation of special service unit to give knowledge and understanding for the stakeholders (individuals, society, and government) in the future will improve the implementation and protection towards the rights of couple with different religion who want to engage in interfaith marriage. This will accommodate the interest and the bring benefits and also sense of justice to all parties, especially interfaith marriage couple.

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Andriaan Bedner, Andriaan & Van Huis, Stjin. (2010). Plurality of Marriages Law and Marriage Registration for Muslim In Indonesia: A plea for registration. Http:// www.utrechlaw review.org. Vol. 6, Issue 2.
Aribowo, Justinus Primanto. (2012) The Registration of Interfaith Marriage according to Canonic Law and Positive Law.
Arifin, Syamsul. (2010). Atitudes to Human Rights and Freedom of Religion or Belief in Indonesia. Voices of Islamic Religious Leaders in East Java. Kanisius
Baso, Ahmad & Nurcholish, Achmad. (ed.). (2005). Pernikahan Beda Agama: Kesaksian, Argumen Keagamaan dan Analisis Kebijakan. (Interfaith Marriage: Testimony, Religious Argument, and Policy Analysis). Jakarta: National Commission of Human Rights in cooperation with ICRP. p.8.
Darmabrata, Wahyono. (2003). Tinjauan Undang-Undang No. 1 Tahun 1974 Tentag Perkawinan Beserta Undang-Undang dan Peraturan Pelaksanaannya. (Observation on Law Number 1 Year 1974 on Marriage and It’s Implementing Rules). Jakarta : CV. Gitama Jaya.
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Monib, Mohammad. & Nurcholish, Achmad. (2008). Kado Cinta Bagi Pasangan Nikah Beda Agama. (Love Gift for Interfaith Marriage Couple), Jakarta: PT Gramedia Pustaka Utama.
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