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 This PDF-file was downloaded from http://www.kitlv-journals.nl Downloaded from Brill.com09/23/2021 05:30:37PM via free access S. POMPE 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. Downloaded from Brill.com09/23/2021 05:30:37PM via free access 260 S. Pompe 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 cohabi- tation 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 govern- ment. 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 pro- vision 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 con- nection. 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 argu- ments 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. ; Downloaded from Brill.com09/23/2021 05:30:37PM via free access Mixed Marriages in Indonesia 261 From a legal point of view, this situation is regrettable. The absence of unambiguous formal regulations in this field is encouraging the con- fusion 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 pre- vented, does not the absence of an unambiguous legal regulation of the subject affect the legal certainty? If, in fact, mixed marriages are con- cluded 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 publi- cations 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 (hereaf- ter 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. Downloaded from Brill.com09/23/2021 05:30:37PM via free access 262 S. Pompe 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 mar- riage stipulations, and there is no reference to any civil marriage cere- mony.8 The relationship between the religious marriage ceremony and the civil marriage ceremony is a deceptive and difficult subject. One import- ant 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.