S. Pompe Mixed Marriages in Indonesia: Some Comments on the Law and the Literature

S. Pompe Mixed marriages in Indonesia: Some comments on the law and the literature

In: Bijdragen tot de Taal-, Land- en Volkenkunde 144 (1988), no: 2/3, Leiden, 259-275

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MIXED MARRIAGES IN INDONESIA: SOME COMMENTS ON THE LAW AND THE LITERATURE1

'Kini kami bertikai pangkai Diantara dua mana mutiara.' (A. Hamzah)

From Amir Hamzah's Nyanyi Sunyi and Marah Rusli's Sitti Nurbaya on, obstructed marriages have been an often recurring source of inspi- ration in modern Indonesian literature. None of these sad cases so com- pletely fulfil the requirements of true tragedy as marriages obstructed by religious belief. As much as love is to the lovers, religious marriage stipulations are evidently of the highest order to believers. Conflicts between love and belief hence raise the spectre of inescapable unhappi- ness. So the unexpected and sudden death of the Muslim girl Farida after her marriage to the Catholic Sumarto in the novel Keluarga Per- mana (Ramadhan 1978), for instance, appears to be her just fate: these stories never have happy endings. The novel Keluarga Permana deals with a world with which the In- donesian reader can identify. Cases of the kind treated there are no fiction, they are fact. So-called 'mixed marriages'2 are a real problem in Indonesia. Published four years after the enactment of the Marriage Law of 1974, this novel is one that lawyers interested in Indonesian law also should take note of. It is evidence of the fact that the Indonesian legislator has failed to emerge as a deus ex machina providing answers to the burning problem of mixed marriages.

1 I am grateful to the staff of the NORZOAC institute of Leiden University and to Mr. E. Madjid for their helpful comments on a draft of this paper. 2 In this article the term 'mixed marriages', unless indicated otherwise, is used to refer to interreligious marriages, i.e. marriages between two partners of different religious convictions.

S. POMPE, who holds degrees from SOAS, London, and from Cambridge and Leiden Universities, is a lecturer in Indonesian law at the University of Leiden. His address is: NORZOAC, Faculty of Law, University of Leiden, Rapenburg 33, 2311 GG Leiden.

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This problem, to be sure, is not merely of a legal nature. Regulating the subject by law is not likely to put an end to the more emotional (and theological) sides of the debate on interreligious marriage. 'Must we remain unmarried?' asks a letter to the Kompas newspaper (12/4/1987) which looks like a last-ditch attempt of a Hindu man to marry his Muslim girlfriend. 'Just too bad, but indeed you must and God will see you through', is the general reaction of the reading public (Kompas, date unknown). But instead of preventing this form of social intercourse between persons of different religions, it appears that such social and religious control is pushing it to the informal, not to say illegal, sphere of 'kumpul kebo' - cohabitation. There are indications, in fact, that cohabitation is on the rise in Indonesia in particular among couples of mixed religious backgrounds.3 Those as opposed to interreligious marriage on religious as to cohabitation on moral grounds are faced with an unhappy choice. In this sort of dilemma, not surprisingly, religious arguments have tended to prevail. And although the consequence in the form of 'kumpul kebo' is strongly disapproved of, express religious marriage stipulations such as, most notably, the prohibition on a Muslim woman marrying a non-Muslim man cannot easily be set aside - either by the faithful or by the government.

In fact, the unhappy lovers of different religious backgrounds who are faithful both to each other and to their religions cannot turn to the state law for assistance. The simple reason is that, ironically enough, there is no law in the Pancasila state to bring two such Indonesians together .4 It is here that the problem really lies: there is no adequate legal provision for persons wishing to conclude a mixed marriage. The absence of an unambiguous regulation of the subject in the state law provisions for mixed marriages plays an essential role in the problems in this connection. And this legislative gap in its turn cannot prevent Indonesians of different religious backgrounds from wanting to marry: it is generally known that mixed marriages are and were concluded in spite of the unclarity in the law, and in apparent contravention of this law, as will become evident later on in this essay.

3 This information was óbtained through contacts in the Indonesian administration. See also recently Tempo 1/11/86; Kompas 18/1/87; Kompas 19/1/87; Kompas27/4/87; Terbit 7/4/87; Kompas 3/6/87; Pelita 5/6/87; Berita Buana 5/6/87. 4 It is interesting to note in this context, however, that the issue of mixed marriage is said to be the subject of an important debate in Indonesian government circles. In this debate, references to religious arguments are said to have been countered with arguments prompted by the Pancasila doctrine. These are evidently strong arguments, as all references to this doctrine have a unificatory effect ('After all, we all believe in one God'), whilst opponents to mixed marriages cannot disclaim them on political grounds. ;

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From a legal point of view, this situation is regrettable. The absence of unambiguous formal regulations in this field is encouraging the confusion besetting the subject. Can one or can one not conclude a mixed marriage in contravention of religious marriage stipulations? If, in f act, social intercourse between different religious groupings cannot be prevented, does not the absence of an unambiguous legal regulation of the subject affect the legal certainty? If, in fact, mixed marriages are concluded as they are, does this not foster disrespect for the law, and even corruption? ;

It is remarkable in this context that in a way one must turn to modern Indonesian literature to become aware of the social tensions which this situation generates in Indonesia.5 There are very few legal publications that make a thorough study of the subject. It is, of course, a delicate subject, hot in the last place because it involves important religious tenets. ,But what good is legal research if it does not address itself to burning social problems? What is fiction and what is fact here, if one has to,turn to novels to get to know social reality? In this short essay, I propose to take a look at Indonesian research on the .subject of mixed marriage after 1974 as reflected by most publications that are available in the Netherlands. First, I shall give an over- view of some of the legal problems involved in the question of mixed marriage in Indonesia. Then, a number of publications on the subject will be.considered. Finally, a short comment will be made on what must be regarded as a major source of confusion.

1. Some Comments on Mixed Marriage in the Law6 Indonesian marriage law is largely regulated in the Marriage Law of 1974, with its numerous implementing regulations. The Law is a political achievement aimed at creating a uniform marriage regulation for all Indonesians and at protecting the position of the woman in marriage more adequately. The way it came about, and the limitations it imposes on the exercise of Muslim (male) rights such as the right of polygamy

5 The problems involved are also a favourite subject of the popular Indonesian literature called sastra pop. 6 For the law as it stood during the colonial period the following references can be mentioned in particular: a. Colonial Legislation Card Index - Lemaire 1933:655-681; W. F. Prins 1938:741- 753; Cases - RvJ Soerabaja 10 January 1933, Indisch Tijdschrift van het Recht (hereafter abbreviated as T.) 140:584; Ldrd. Banjoemas 10 October 1934, T. 141:179; Ldrd. Bandoeng 7 March 1935, T. 142:138; RvJ Soerabaja 8 January 1936, T. 145:552. b. Other References - Hoeve 1932:451-455; Kollewijn 1930:4-9; Lemaire 1932; van Hasselt 1952; and Gouw Giok Siong 1955.

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and unilateral divorce, on which it was focused in particular, have been dealt with in several review articles.7 One of its most prominent features, which at the same time constitutes a clear break with the formal marriage law in force up to 1974, is its apparent institution of a religious basis for marriage. Article 2(1) states emphatically that marriage must be in accordance with religious marriage stipulations, and there is no reference to any civil marriage ceremony.8 The relationship between the religious marriage ceremony and the civil marriage ceremony is a deceptive and difficult subject. One important feature is that according to the Marriage Law a marriage between two Muslim parties must be considered legally valid upon the completion of the religious marriage ceremony (i.e., the moment of the signing of the marriage contract), whereas a marriage between non-Muslims is legally binding only af ter its registration at the civil registry office. This difference is one of many9 which appear to indicate that, although the Marriage Law unifies the diverse kinds of personal law in force during colonial times, one cannot speak of an identical marriage law for all Indonesians. What has happened is that, essentially on the basis of article 2(1), a formal pluralism based on the distinction between Muslims and non-Muslims has been introduced in Indonesia.

The religious basis of marriage in the Marriage Law is certainly one of the crucial aspects of this Law dominating the legal problem of mixed marriage. It is evident that if civil marriage had been retained, the issue of mixed marriages would have been different in legal terms, and assuredly not as problematical as it is now. One' of the curious aspects of the legislation on this subject is that mixed marriages, in the sense of marriages between two partners of the Indonesian nationality but from different religious backgrounds, are regulated explicitly neither in the Marriage Law itself nor in the implementing regulations. It is decidedly odd that a law which introduces religion as one of the essential bases of marriage does not specify what happens when two partners of different religious faiths intend to marry.

7 Some of these articles will be considered later in this paper. Recent research has indicated that the practical functioning of the Law has its problems. Cf., e.g., Rochijanto 1985:474-481; Poerbatin 1985:481-485; Nuraja 1985:486-490. These publications are the result of a research project investigating the effectiveness of the Mar- riage Law carried out under the supervision of the Universitas Indonesia. 8 Article 2(1) runs: Perkawinan adalah sah, apabila dilakukan menurut hukum masing- masing agamanya dan kepercayaannya itu, which may be translated as: 'A marriage is binding if it is concluded in accordance with the stipulations of the religion and beliefs of both parties'. 9 Such as also the above-mentioned new regulations with regard to polygamy and unilateral divorce.

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Legislative history indicates, interestingly enough, that the Marriage Bill discussed in parliament (DPR) did originally include an article (art. 11) stating that differences in religion should hot be regarded as an obstacle to marriage. In the political turmoil thatmarked the debate on the Bill both in- and outside parliament, however, the article was withdrawn without any clear alternative being presented. Now confusion reigns supreme. , • The lower regulations implementing the Marriage Law are equally unclear on the subject. A number of these regulations do state explicitly that this Marriage Law has not as a matter of course abrogatéd the Colonial Regulation governing mixed marriages (referred to hereafter as GHR)10 as a whole, but only those articles which are in conflict with it.11 This would imply that the GHR is at least still partially in force, which would seem to serve no other purpose than to indicate that this Regulation still applies to mixed marriages. But no specific formal state- ment to this effect having been given, the legal status of these regulations remains equivocal.

A number of articles of the,Marriage Law do, however, have a bearing on the subject, or are commonly construed as such. Firstly, the crucial art. 2(1) states that a marriage must be in accordance with the religious prescriptions and customs of both parties (see note 8), which can be interpreted as incorporating religious marriage stipulations into the formal legal system. Secondly, there actually is a section in the Law bearing the heading 'mixed marriages' (perkawinan campuran). It deals not with marriages between parties of different religious convictions, howev;er, but with marriages between Indonesian nationals and foreigners (artièles 57-62)12, which involves different legal questions. It could be interpreted, however, as also providing for mixed marriages in the sense in which I use the term (i. e. interreligious marriages). Some of the articles, in f act, allow of such an interpretation. Thirdly, article 66 states that all earlier regulations are nüll and void inasfar as they are in contradiction with

10 GHR is the commonly used abbreviation for 'Regeling op de Gemengde Huwelijken' [Mixed Marriage Regulation] (S. 98-158) of 1896. See also footnote 13. 11 Cf. Instruction of the Indonesian Supreme Court to all Indonesian Courts of 20 August 1975, no. MA/Pemb./0807, and the Decision of the Indonesian Minister of Home Affairs of October 1975, no. 221a/1975. 12 Article 57 runs: Yang dimaksud dengan perkawinan campuran dalam Undang-undang ini ialah perkawinan antara dua orang yang di Indonesia tunduk pada hukum yang berlainan, karena perbedaan kewarganegaraan dan salah satu pihak berkewarganega- raan Indonesia, which can be translated as follows:' What is meant by "mixed marriage" in this Law, is a marriage between two parties in Indonesia who are subject to different laws because of a difference in nationality, with one of the parties having the Indonesian nationality'.

Downloaded from Brill.com09/23/2021 05:30:37PM via free access 264 5. Pompe this Law. It is not clear in what way this provision relates to the pre-1974 law on mixed marriages.13 Essentially, two hypotheses can be formulated on the basis of the articles of the Marriage Law. The first is that mixed marriages are regulated by this Marriage Law, in either art. 2(1) (providing that a mixed marriage can be concluded only if it is in accordance with the religious beliefs of both parties) or art. 57-62 (prescribing that a mixed marriage may be concluded in accordance with the international mixed marriage procedure described therein). In the case of both, this hypothesis would entail that mixed marriages are impossible for a large number of Indone- sians.14 The second hypothesis is that mixed marriages are not regulated in the Marriage Law, and that as a result art. 66 applies to them. This would imply that the colonial GHR retained its validity. Mixed marriages would as a result be allowed by law. These hypotheses will be considered at greater length next.

2. The Literature on Mixed Marriage The most important effects of the Marriage Law of 1974 have been the establishment of the religious foundation of marriage, the restrictions on polygamy and unilateral divorce, and the extension of the competence of religious courts. Aside from a number of general introductory publications (some of which will be discussed later), the legal literature on marriage law generally concentrates on these subjects, with the polygamy and divorce questions figuring most prominently.1'

13 The law of before 1974 did, in fact, permit (interreligious) mixed marriages on tne basis of GHR S. 98-158 of 1896, as well as the Marriage Regulation for Christiah Indonesians (Huwelijksordonnantie Christen-Indonesiërs Java, Minahasa en Amboina S. 33-74 jo. 36-607). According to these regulations, a difference in religion between prospective marriage partners cannot form an obstacle to marriage between them (art. 7). Whilst such a provision can be regarded as a natural outcome of the system of ei vil marriages as provided by the Civil Code, this Code only applied to the European population group. In this group mixed marriages were definitely a rarity in the colonial context. Indonesians and Foreign Orientals were not subject to this Code in this respect, and it is precisely to these population groups that the above-mentioned regulations applied. 14 Islamic marriage stipulations are generally interpreted as indicating that marriage between a Muslim woman and a non-Muslim man is prohibited, whilst marriages between Muslim men and non-Muslim women are allowed only where the woman is an adherent of the Christian or Jewish faith (cf. Quran Sura IV:221, Sura V:5). The Roman Catholic faith forbids interreligious marriages unless the proper authorities have allowed such a marriage on certain conditions (such as coritinued adherence to the Catholic faith; cf. Codex Iuris Canonici Book IV Kan. 1124). See, in general, Prawirohamidjojo 1986:92, which will be discussed later on in this essay. 15 In addition to the references cited in note 3, the following recent publications may be mentioned: Rasjidi 1982; Djamil Latif 1982; Marpaung 1983; and Rasjidi 1983. This is but a small selection from the large and steadily increasing volume of publications with respect to polygamy and divorce in Indonesia.

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The subject of mixed marriage is on the whole a neglected one. I was able to tracé fewer than twenty publications dealing with the subject, only two amongst which contained an analysis that went beyond a mere superficial glance at the problem. The general publications will be considered first, with particular attention to the two hypotheses formulated above.

A. General Publications

(i) The Subject of Mixed Marriage is Regulated by Article 2(1) of the Marriage Law of 1974 The main question here is whether, since article 2(1) explicitly prescribes that the marriage must be concluded in accordance with religious stipulations (see note 8), that is where the discussion really ends. In f act, a number of publications refer explicitly to this article to support the argument that religious marriage stipulations are mandatory by law. Not surprisingly, this argument has found favour with the - generally Muslim - authors opposed to mixed marriages in particular. Thus, Hazairin (1975:5,25) asserts that the implication of this article is that marriages that are in conflict with religious stipulations are expressly forbidden, which necessarily puts a restriction on mixed marriages. For a Muslim girl cannot marry a non-Muslim boy, and a Muslim boycannot marry a girl who is non-Muslim, non-Christian or non-Jewish. Hazairin is supported in his view by Syahar (1976:77), Soemiyati (1982:31,62), Ramulyo (1986:34,159) and Asmin (1986:67-70). Aside from the material law problem of the competence of parties to marry, the article raises the procedural problem of how to conclude a mixed marriage. J. Prins (1977:17) states that, going by art. 2(1), mixed marriages will probably require two marriage ceremonies, in accordance with the religious beliefs of each marriage partner. But at what point is the marriage actually concluded in such a case? In attempting to settle this question, one must bear in mind that according to the Marriage Law a Muslim marriage is concluded with the conclusion of the religious marriage ceremony (i.e., the signing of the marriage contract), whereas a marriage between non- Muslims is concluded after it has been registered at the civil registry office. It would appear that a doublé marriage ceremony does not solve this dilemma.

(ii) The Subject of Mixed Marriage is Regulated by the Section of the Marriage Law Entitled 'Mixed Marriages', Dealing with Marriages between Indonesian and non-Indonesian Nationals (articles 57-62) There are a number of publications dealing with the section on mixed marriages of the Marriage Law (articles 57-62). Basically, the argument here is that, as the Marriage Law contains a section on mixed marriages, the colonial regulations must be considered invalidated by it. Whereas

Downloaded from Brill.com09/23/2021 05:30:37PM via free access 266 S. Pompe formally this may be an acceptable argument, materially it is not. There can be little doubt that the crucial article 66 of the Law refers to an overlapping not of legislative vocabulary but of material rules between this and previous legislation. The question we need to settle, therefore, is whether the existing rules address the issue of mixed marriage as defined in this essay. As has already been pointed out, the section on mixed marriages of the Marriage Law deals with marriages between partners of different nationalities. Whilst this may include marriages between Indonesian and non-Indonesian nationals which are also mixed in our sense of the word (i.e. interreligious), the wording of the section appears to preclude its application to marriages between Indonesian partners whether or not of different religions. An additional argument against the applicability of this section to mixed marriages of this kind is furnished by the drafting history of the Marriage Law. As was pointed out above, the original Bill included an article on mixed (i.e. interreligious) marriages besides the articles 57-62 discussed here. This would warrant the conclusion that, precisely because a distinction was made in the Bill between marriages between partners of the same nationality on the one hand and marriages between partners of different nationalities and of different religions on the other, one cannot apply the mixed marriage section of the Law to mixed marriages between Indonesian nationals. These formal legal arguments aside, there is the question of how to apply the section on mixed marriages to Indonesian nationals in practice. This section makes explicit reference to the requirement that both partners must be competent to marry according to their respective personal laws (art. 60(1)). This brings us back again to square one, namely art. 2(1), as there is no indication in this section of what these personal laws actually are. The only possible legal effect of such an argument could be abrogation of the earlier colonial regulations on mixed marriages on the basis of art. 66 (which will be considered hereafter).

These considerations have not prevented a number of authors from referring to this section when discussing mixed marriages between In- donesian nationals. Thus, Harahap (1975:238) asserts that the colonial regulations are voided by art. 66 because the Marriage Law contains a section on mixed marriages, which is assuredly too facile an argument. He claims that the section applies to mixed marriages between two In- donesian partners, which precisely is most unlikely. It is unclear as a result, as I have pointed out, in what way this changes things in practice. Saleh (1980:45) is more equivocal. He points out that the concept of 'mixed marriage' in the Marriage Law is, in fact, narrower than the concept as used in the colonial regulations. This approach would seem to lead to the conclusion that the section in question does not apply to mixed marriages between Indonesian nationals. Unfortunately, Sajeh

Downloaded from Brill.com09/23/2021 05:30:37PM via free access Mixed Marriages in Indonesia 267 does not go as f ar as this, and leaves this crucial question unanswered. Looking at his comment on art. 2 of the Marriage Law (Saleh 1980:16), in fact , one notes that he quotes Hazairin's views on the mandatory character of religious marriage stipulations with apparent approval, which suggests a stance that is quite contrary to that suggested by his remarks with regard to the mixed marriage section. Jafizham, in his article with the promising title 'Islamic marriage law and the problem of mixed marriages' (1982:130-134), whilst discussing the Islamic law on mixed marriages at some depth, refers to the mixed marriage section of the state Marriage Law only once. Nothing whatever is said in this article about how Islamic law relates to this Marriage Law, and so it is of little use for all practical and formal legal purposes. Syahmin (1986:56-66), finally, puts forward the most conclusive argument. He claims that marriage between different nationalities is one of the categories of marriage referred to in the colonial mixed marriage regulations. His suggestion that on this basis the colonial regulations are voided as far as internationally mixed marriages are èoncerned is certainly acceptable. Unfortunately, his book does not gö so far as to explicitly draw the logical conclusion to which this argument leads, namely that in that case the colonial regulations still stand as regards mixed marriages between persons of different religions.

(iii) The Subject of Mixed Marriage is not Regulated in the Marriage Law, and by Virtue of its Article 66 the Colonial Regulation (GHR) Applies It is difficult to deal with mixed marriages by sole reference to art. 66. Where the article states that it applies to subjects which have not been regulated in the Marriage Law, one must obviously first look at the Law to see whether a given subject is regulated therein. In the case of mixed marriages one cannot but notice the obstacles implied by art. 2(1) and the mixed marriage section. Nevertheless, some authors refer exclusively to this article. Some of these authors have considerable inside knowledge of the legislative history of the Marriage Law. Thus, Subadio (1981:23,26), one of the more prominent initiators of the Indonesian marriage legislation, states categorically and without further explanation that mixed marriages between persons of different religions are not regulated by the Law, and that art. 66 therefore applies to these. Soewondo (1977:283-294), another prominent figure connected with the introduction of the Mar- riage Law, points out that the article on mixed marriages in the original draft was withdrawn. She appears to suggest that the subject therefore is not regulated by the Law. Abdurrahman (1978:17-26), who to my knowledge did not play such an important part in the legislative prpcess surrounding the Law as the above-mentioned ladies, asserts the exact opposite, with equal certainty and with equally little explanation. Stating

Downloaded from Brill.com09/23/2021 05:30:37PM via free access 268 S. Pompe that the colonial Mixed Marriage Regulation and the Marriage Law of 1974 are plainly in conflict with one another, he claims that the former should be regarded as being voided on the basis of art. 66. Finally, Basuki (1987:235-243), who has written one of the most recent contribu- tions to the subject, unfortunately does not clearly decide the issue one way or the other. She does opt for art. 66, but her essential reason for this choice appears to be none other than that the problem lies with art. 2(1), as indeed it does. Her line of reasoning is somewhat difficult to follow at times. She appears to say that art. 66 should apply in precisely those cases in which art. 2(1) is problematical, such as the case of a Muslim girl wishing to marry a non-Muslim man (Basuki 1987:242). The point is, however, that the application of art. 66 depends not on whether art. 2(1) is problematical, but on whether this article governs the matter of mixed marriage. This question remains unanswered in this article.

It is clear from the above survey that no consensus exists on what the law on mixed marriages actually involves. This is clearly reflected in the literature on the subject. It should be noted in this connection that this literatufe is scarce and does not treat the subject at depth.

B. Two Interesting Recent Academie Theses

Against this background, particular attention should be given to two recent doctoral theses on the subject of Indonesian marriage law. The first is the long-awaited (by insiders) thesis of Prawirohamidjojo, Pluralisme dalam perundang-undangan perkawinan di Indonesia, defended at Airlangga University, Surabaya, in April 1986. The second is the doctoral thesis by Surianegara, La pluralité des statuts personnels dans Ie droit indonésien, defended at the University of Paris two months later. Both theses are of a high academie Standard and are notably better than any other longer study on Indonesian marriage law produced since 1974.16 It is gratifying to note, moreover, that as regards research method, argument, thoroughness and scope the Surabaya thesis is in no way inferior to the Paris one, which bears witness to the rising academie standards at Indonesian universities.17 Each thesis will be discussed in turn.

16 With the possible exception of the publications of J. Prins (1977) and Katz and Katz (1975 and 1978), which will be considered later. For the period prior to 1974 the doctoral thesis of Gouw Giok Siong (1955) must be mentioned as an outstanding contribution. 17 This thesis forms part of a recent series of qualitatively impressive theses produced at this university, such as Prasetya 1983 and Hadjon 1985. The latter has been reviewed in Bijdragen tot de Taal-, Land en Volkenkunde 143-IV, 1987, pp. 583-6.

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Prawirohamidjojo's analysis of the problem of mixed marriage (1986:5- 7, chapter 5), whilst forming only a small part of his general study on the Marriage Law, is itself more extensive than anything written on the subject since 1974. It is further a very thorough study of this subject. With respect to art. 57 of the Marriage Law, his findings can be briefly summarized as follows. After a careful analysis of the Regeling op de Gemengde Huwelijken (GHR), he concludes that this colonial regulation provides for a situation that is considerably more varied than the one envisaged in the said art. 57. The GHR, according to him, refers to marriages between persons subject to different laws within In- donesia.18 Article 57 is superfluous when regarded from this point of view, the matter being already more fully regulated in the GHR. How- ever that may be, the author points out that, in view of the transitional provision art. 66, the GHR can only be regarded as being voided with respect precisely to these international private law marriages (i.e., marriages between Indonesian and non-Indonesian nationals), the GHR remaining in force in all other matters, such as mixed (interreligious) marriages. The problem regarding these mixed marriages, it is stated, can really be traced back to art. 2 of the Marriage Law. The author does not seem too enthusiasic about this article. He wonders why marriage should be regulated on a religious basis, as this makes things a good deal more confusing in practice. With respect to mixed marriages in our sense of the word, it is assumed that art. 2 does not prevent such marriages from being concluded.19 Mrs. Surianegara's thesis follows a similar line of reasoning. After an exhaustive study of the colonial regulations and their precise scope (Surianegara 1986:239-279), she discusses their relation to the Marriage Law (Surianegara 1986:358-368). She then also reaches the conclusion that art. 57 of the Marriage Law by its very nature covers only one aspect of the wider concept of mixed marriage as used in the colonial regulations. Interreligious marriages are not covered by this art. 57, she states, and the colonial regulations must hence be regarded as being siill

18 The author states (in my view correctly) that the GHR can be interpreted as applying not only to marriages under private international law (in particular after nationality had become the prime point of reference in private international law in 1915), Indone- sians being in principle foreigners at the time of introduction of the GHR. 19 The author cites, with apparent approval, a draft marriage law of 1977 which re-establishes marriage on a civil law basis. His is not an isolated standpoint. There is some discontentment amongst lawyers in Indonesia in general about the religious basis of marriage, not so much for reasons of principle as because it causes practical difficulties, as is evident from the subject under consideration here. In spite of the implicit voiding of book 1 of the Dutch Colonial Civil Code by the 1974 Marriage Law, some lawyers and notaries have steadfastly continued pushing for reform along the Unes of this code, as is evident from the continuing stream of publications on the subject. Cf. Soerjo- pratiknjo 1983.

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These theses both make out a good case for the continuing application of the colonial regulations with regard to mixed marriages, with the exception of mixed marriages in the sense of international private law marriages involving Indonesian and non-Indonesian nationals. Inves- tigating the precise ambit of the concept of mixed marriage as used in both the colonial regulations and the Marriage Law, they reach the conclusion that, whilst there may be some overlap, this overlap is certainly not complete. For the purposes of this essay, it is important to note that there is no overlap on the subject of interreligiously mixed marriage.

3. Some Final Comments The Marriage Law of 1974, which has numerous good qualities, has a few problematical points as well. One prominent such point is the religious foundation of marriage as laid down in art. 2(1). Whilst it is beyond the scope of this essay to consider all the implications and aspects of this particular article, yet it is possible to make one or two comments on its basis. a. It is unclear in what relation the reference to religious marriage stipulations stands to the official (state) law of Indonesia. The question is, in short, whether the wording of art. 2(1) and its place in the Law should be taken to mean that in the field of marriage law, religious law takes precedence over state law. In the secular Pancasila state that Indonesia purports to be, this issue raises some fundamental questions. b. It is erroneous to deduce from art. 2(1) that the entire body of religious marriage laws applies to Indonesian marriages. Apart from the question óf how this could be reconciled with Indonesian principles of justice and public order, the main reason for this is that the Marriage Law and its implementing regulations themselves restrict the scope of a number of religious (notably Islamic) marriage rules. Notable exam- ples are the right of the man to marriage with more than one wife and that to unilateral divorce.20 This is in some cases not just a limitation on the exercise of certain religious rights, but an explicit prohibition against their exercise: thus Government Regulation no. 10 of 1983 forbids polygamous marriages among civil servants (art. 4(2)). How can this be reconciled with art. 2(1)?

20 See articles 3 and 4 of the Marriage Law and articles 40-45 of Government Regulation (Peraturan Pemerintah) no. 9 of 1975.

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No other interpretation seems possible than that religious laws are applicable inasfar as they do not conflict with the state laws. In other words, wherever a certain aspect of Indonesian marriage law is regulated by state legislation, religious laws do not apply to that aspect. This is true not just for the Marriage Law, but for all formal legislative instru- ments which are in force. Thus, as regards mixed marriages, the colonial regulations recognized by the Indonesian legislator have precedence over the religious laws.21 . c. In practice, the religious basis of marriage as prescribed in art. 2(1) has not prevented the conclusion of civil marriages. The institution of civil marriages has proven useful in the case of mixed marriages. As was stated in the interesting review article by Katz and Katz (1978:315)22, mixed marriages are still being concluded on this basis as before 1974. In fact, at least three acquaintances of the present author have married a person of a different religion in Indonesia, the marriage being concluded at the civil registry office (Catatan Sipil) - which in legal terms is doublé heresy, there being a legal provision neither for mixed nor for civil marriages in the Marriage Law. However, this solution has not contributed to legal certainty in In- donesia. It has become apparent that not all civil servants at the civil registry office are equally happy with the conclusion of civil marriages. Thus, it is known that in some places such marriages can be concluded,

21 There is practically no case-law with regard to this subject. This says little about whether or not there is a problem here. Case law in Indonesia is not systematically documented and the number of cases recorded is not necessarily a conclusive indicator of the existence of a social or legal problem in any case. There are a number of factors determining whether one does or does not take legal action. Even so, it is interesting to note in this connection that with regard to the only case to have come before the Mahkamah Agung in recent years and to be recorded in 'Yurisprudensi Indonesia' in which reference is made to mixed marriage, it has been explicitly stated that the Marriage Law of 1974 is inapplicable and that, on the basis of art. 66, the colonial regulations should be consulted for dealing with the matter. See also case MA 13-XI- 1979 no. 1650K/Sip/1974, 'Yurisprudensi Indonesia' 1980 (I), p. 111, also cited

Downloaded from Brill.com09/23/2021 05:30:37PM via free access 272 S. Pompe whilst in others they cannot. Wórse still, the possibility of a civil marriage is sometimes dependent on whether or not the civil servant concerned is prepared to conclude such a marriage, the decision accordingly varying from time to time. d. It has since appeared that on 12th January 1987, during a joint meet- ing of the Ministers of the Interior, Justice and Religious Affairs, it was decided that civil marriages could no longer be concluded.23 The legal status of this decision is uncertain. Is it a ministerial decree with direct and general effect, or must it be considered as a policy state- ment without legal force? Whilst no formal ministerial decision on this subject has to my knowledge so f ar been enacted, it appears that in practice civil registration offices consider themselves bound by this decision. Even if this decision has, in f act, the status of a ministerial decree, the question is in what relation it stands to the Colonial Regulation (GHR), assuming that it is still applicable, as argued by the two most serious publications on this subject, and as indeed the present author also believes. According to some authors, it may be argued that a colonial regulation can only be abrogated by a post-independence regulation of equal or higher status (Van Exel 1953; Böhtlingk 1953). It is doubtful that a ministerial decision has this status.24 Should it appear from the wording and the intent of the decision that it is in conflict with the Colonial Regulation, furthermore, the validity of the ministerial decision will be dubious from this point of view. According to another line of reasoning, not the status of the colonial regulation in question but the competence of the post-independence regulatory organ is of importance (see Suermondt 1953,1954). In this latter case, the delegation of regulatory powers to the ministers in question by law or by government regulation would be required. The Marriage Law is equivocal on this point. While it provides for implementing regulation by means of a government regulation (Peraturan Pemerintah) (art. 67), which might conceivably imply delegation of regulatory authority to a minister, there is, however, no government regulation dealing with the subject of mixed marriage. It is hence uncertain whether the ministers in question were at all competent to regulate this subject as they have done.

23 This decision is referred to in Kompas, letter of 12 April 1987, cited above, as a 'raker' decision, presumably meaning a decision of a working committee (rapat kerja). The actual wording could not be traced in time for it to be studied for the purposes of this essay. 24 The hierarchy of governmental regulations is a problematical issue. The overriding of a colonial Royal Decree that has retained its validity after Indonesian independence would require a Presidential Decision (Keputusan Presiden) or a Government Regu- lation (Peraturan Pemerintah), it must be assumed. It is certain that no ministerial decision can override such a colonial regulation.

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There is a good deal of formal unclarity in this area of law. There is an obvious need for legislation on mixed marriage that is more in tune with social reality in Indonesia. People of different religious backgrounds will continue to want to marry and will not be stopped by the difference in religion. The present law causes suffering.

4. Conclusion The Indonesian Marriage Law establishes marriage on a religious basis. This gives rise to complications in the case of mixed marriages between partners of different religions. There is no agreement on the precise interpretation of the Law in this respect. Little research has been done in this field, the existing publications on the subject being on the whole inconclusive. The most prominent authors, Prawirohamidjojo and Surianegara, agree that the colonial regulations allowing mixed marriages still apply. It would appear that art. 2(1) of the Marriage Law of 1974, establishing the religious basis of marriage in Indonesia, only refers to the application of religious law in areas where Indonesian state laws do not apply.25

ABBREVIATIONS USED

GHR Regeling op de Gemengde Huwelijken [Mixed Marriage Regulation] of 1896 Ldrd. Landraad RvJ Raad van Justitie T. Indisch Tijdschrift van het Recht

REFERENCES a. Monographs and Articles in Journals

Abdurrahman, and Riduan Syahrani, 1978, Masalah-masalah hukum perkawinan di In- donesia. Bandung: Alumni. Asmin, 1986, Status perkawinan antar agama ditinjau dari Undang-undang Perkawinan no. 111974. Jakarta: Dian Rakyat. Basuki, Zulfa Djoko, 1987, 'Perkawinan antar agama dewasa ini di Indonesia, ditinjau dari segi hukum antar tata hukum', Hukum dan Pembangunan 17-3:235-243.

25 After completion of the manuscript for this article, I came across a recent article with a bearing on the subject of mixed marriage by S. Gautama (Gautama 1987), one of the most eminent scholars of Indonesian law by any standards. As I could not include any reference to it in the text of this article, I would like to mention it here. The article explicitly supports the view that the colonial mixed marriage regulation still applies, as indeed I have contended. The author puts forward essentially two arguments in support of this view. The first is that, since mixed marriages in the sense of interreligious marriages are not regulated by the Marriage Law, art. 66, which refers to the colonial mixed marriage regulation, applies. The second is that this view is supported by the Mahkamah Agung case-law. In Gautama's article the problems of mixed marriage are better analysed than in practically any of the other publications I have consulted, and I wholeheartedly agree with its conclusions.

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Böhtlingk, F. R., 1953, 'Wat mag een regeringsverordening regelen?', Mededelingen van het Documentatiebureau voor Overzees Recht 3-12:134-139. Djamil Latif, H. M., 1982, Aneka hukum perceraian di Indonesia. Jakarta: Ghalia. Exel, A. L. van, 1953, 'Wetten, Koninklijke Besluiten, Ordonnanties en Regeringsveror- deningen', Ekonomi dan Keuangan 6:87-90. Gautama, S., 1987, 'Mahkamah Agung dan keanekaragaman hukum perdata', Hukum dan Pembangunan 17-2:163-169. Gouw Giok Siong, 1955, Segi-segi hukum peraturan perkawinan campuran. Jakarta: Per- cetakan Express. Hadjon, Ph. M., 1985, Perlindungan hukum bagirakyatdiIndonesia. Surabaya: Airlangga University Press. [Doctoral Thesis.] Hamzah, Amir, 1963, Nyanyi Sunyi. Kuala Lumpur: Bi-Karya Publication Limited. Harahap, Y., 1975, Hukum perkawinan nasional. Medan: Zahir. Hasselt, J. Ph. van, 1952, De botsingsbepalingen van de huwelijksordonnantie voor Chris- ten-Indonesiërs. Leiden: de Jong. Hazairiri, 1975, Tinjauan mengenai U.U. perkawinan nomor 111974 dan lampiran U.U. nomor 1/1974. Jakarta: Tinta Mas. Hoeve, J., 1932, 'Gemengde huwelijken', Indisch Tijdschrift van het Recht 135:451-455. Jafizham, T., 1982, 'Hukum perkawinan Islam dan masalah perkawinan campuran', Hukum dan Pembangunan 2-12:130-134. Katz, June S., and Ronald S. Katz, 1975, 'The new Indonesian marriage law: A mirror of Indonesia's political, cultural and legal systems', American Journal of Comparative Law 23:653-681. -, 1978, 'Legislating social change in a developing country: The new Indonesian marriage law revisited', American Journal of Comparative Law 26:309-320. Kollewijn, R. D., 1930, 'Gemengde huwelijken tussen Europese meisjes en Mohamme- daanse Indonesiërs', De Stuw 1/10:4-9. Lemaire, W. L. G., 1932, Overgang van godsdienst als probleem van het intergentielpri- vaatrecht. Batavia: Visser. -, 1933, 'Interlocaal en intergentiel privaatrechtelijke beschouwingen naar aanleiding van het nieuwe huwelijksrecht der christen-inlanders', Indisch Tijdschrift van het Recht 138:655-681. Marpaung, H., 1983, Masalah perceraian. Bandung: Tonis. Nuraja, S. Hawa, 1985, 'Pelaksanaan pasal 39-41 pasal-pasal 3 ayat (2) sampai pasal 5 dan pasal 7 (2) UU no. 1 tahun 1974 pada Pengadilan Agama Jakarta Utara tahun 1980-1982', Hukum dan Pembangunan 15-5:486-490. Poerbatin, Ny. D. F., 1985, 'Penerapan pasal 3, 4, 5 UU no. 1 tahun 1974 di Pengadilan Agama Jakarta Pusat', Hukum dan Pembangunan 15-5:481-485. Prasetya, R., 1983, Kedudukan mandiri dan pertanggungjawaban terbatas dalam perseroan terbatas. Surabaya: Airlangga University Press. [Doctoral Thesis.] Prawirohamidjojo, R. Soetojo, 1986, Pluralisme dalam perundang-undangan perkawinan di Indonesia. Surabaya: Airlangga University Press. [Doctoral Thesis.] Prins, J., 1977, De Indonesische huwelijkswet van 1974. Nijmegen: Het Instituut voor Volksrecht. Prins, W. F., 1938, 'Nederlander of inheemsch onderdaan - niet-Nederlander?', Indisch ' Tijdschrift van het Recht 147:741-753. Ramadhan, K. H., 1978, Keluarga Permana. Jakarta: Pustaka Jaya. Ramulyo, M. Idris, 1986, Tinjauan beberapa pasal undang-undang nomor 1 tahun 1974 dari segi hukum perkawinan Islam. Jakarta: Hillco. Rasjidi, L., 1982, Hukum perkawinan dan perceraian di Malaysia dan Indonesia. Bandung: Alumni. -, 1983, Alasan perceraian menurut UU no. 1 tahun 1974 tentang perkawinan. Bandung: Alumni. Rochijanto, H. H., 1985, 'Pelaksanaanpasal 39-41 (UUno. 1 tahun 1974) besertaperatur- an pelaksanaannya (pasal 14-36 P.P. 9 tahun 1975) pada Pengadilan Agama Jakarta

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Utara tahun 1980-1982', Hukum dan Pembangunan 15-5:474-485. Rusli, Marah, 1965, Sitti Nurbaya. Jakarta: Balai Pustaka. Saleh, K. Wantjik, 1980, Hukum perkawinan Indonesia, Cetakan ke-6. Jakarta: Ghalia. [First impression 1976.] Soemiyati, 1982, Hukum perkawinan islam dan undang-undang perkawinan. Yogyakarta: Liberty. Soerjopratiknjo.Hartono, 1983, Akibathukum dariperkawinan menurutsistem Burgerlijk Wetboek. Yogyakarta: Fakultas Hukum UGM. Soewondo, N., 1977, 'The Indonesian Marriage Law and its implementing regulation', Archipel 13:283-294. Subadio, M. Ulffah, 1981, Perjuangan untuk mencapai undang-undang perkawinan. Jakarta: Idayu. Suermondt, G. C 1953, 'Wetten, Koninklijke Besluiten, Ordonnantiën en Regeringsver- ordeningen'. Ekonomi dan Keuangan 6:471-481. -, 1954, 'Wijziging en intrekking van tijdens het voormalige nederlandse bewind vastge- stelde regelingen door organen van de Republik Indonesia', Mededelingen van het Documentatiebureau voor Overzees Recht 4-12:89-96. Surianegara, Dewi T. Djarot, 1986, La pluralité des statuts personnels dans Ie droit indo- nésien. Paris: Université de Paris I. [Doctoral Thesis.) Syahar, H. Saidus, 1976, Undang-undang perkawinan dan masalah pelaksanaannya ditinjau dari segi hukum Islam. Bandung: Alumni. Syahmin, A. K., 1986, 'Penyelundupan hukum lewat lembaga perkawinan campuran', Padjadjaran 1:56-66. b. Newspaper Articles

BeritaBuana 5 June 1987: 'Perkawinan antar agama'. Kompas 18 January 1987: 'Ada tanda-tanda lembaga perkawinan mulai berubah'. 19 January 1987: 'Dampak modernisasi, banyakkehamilandi luar nikah'. Letter to the Editor of 12 April 1987. Letter to the Editor of April 1987, precise date unknown. 27 April 1987: 'Hubungan sekssebelum nikah tindakan yangmenyesatkan'. 3 June 1987: 'Yurisprudensi untuk atasi masalah kawin antaragama'. Pelita 5 June 1987: UU no. 1/1974 menutup pintu perkawinan antar agama'. Tempo 1 November 1986: 'Laporan utama: Sulitnya kawin antar agama'. Terbit 1 April 1987: 'Konsultasi hukum: Izin perkawinan'.

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