In­done­sian court fail­ure to pro­tect chil­dren from lives of early mar­riage

The China Post - - COMMENTARY -

In­done­sia’s Con­sti­tu­tional Court on June 18 an­nounced its rul­ing on the 1974 Mar­riage Law, re­ject­ing re­quests to change the mar­riage­able age for girls from 16 to 18 and to make it pos­si­ble to le­gal­ize in­ter­faith mar­riages.

The le­gal mar­riage­able age for girls thus stands at 16 and cou­ples of dif­fer­ent faiths will likely re­main un­reg­is­tered by the state and so will their chil­dren.

On the mar­riage­able age for girls, plain­tiffs had pointed out the need to ad­just the age to 18 be­cause 16 years re­mained within the bracket of the def­i­ni­tion of a child in the laws on child pro­tec­tion, pornog­ra­phy, man­power and oth­ers.

As the de­feated plain­tiffs said, we must now strive harder to pre­vent child mar­riages by de­lay­ing mar­riages and preg­nan­cies through the 12-year com­pul­sory ed­u­ca­tion pro­gram.

The court, which has is­sued a few pro­gres­sive rul­ings re­gard­ing chil­dren, had raised dif­fer­ent in­ter­pre­ta­tions on the mar­riage­able age across dif­fer­ent faiths, ar­gu­ing that chang­ing the mar­riage­able age is part of the leg­is­la­ture’s au­thor­ity.

It added that progress in ar­eas such as nutri­tion and tech­nol­ogy may speed up a child’s sex­ual drive, which “should be chan­neled through le­gal mar­riage as ruled by re­li­gion, so that a child is not born out of wed­lock.”

The only woman on the nine­mem­ber panel, Maria Farida In­drati, dis­sented, cit­ing the dan­gers of child mar­riages, say­ing that “the un­der­stand­ing ... of hu­man rights has pro­gressed far be­yond the time when the Mar­riage Law was passed.”

Yet the court seemed more con­cerned to avoid the car­di­nal sin of al­ter­ing the Mar­riage Law, even at the risk of more child mar­riages and the vir­tual state pro­tec­tion of pe­dophiles.

Re­gard­ing in­ter­faith cou­ples, the plain­tiffs had re­quested that the clause in the Mar­riage Law stat­ing that a mar­riage is le­gal ac­cord­ing to re­li­gious rules be dropped, given the prob­lems gen­er­ated by this clause for cou­ples of dif­fer­ent be­liefs.

Many ag­o­nize for years over who should con­vert to the other’s faith —a vi­o­la­tion, the plain­tiffs said, of the con­sti­tu­tional guar­an­tees on free­dom of wor­ship and the right of each citizen to es­tab­lish fam­i­lies.

The plain­tiffs in­cluded law stu­dents who said that the Mar­riage Law should be ad­justed given the more re­formist 2006 law on pop­u­la­tion ad­min­is­tra­tion, which recog­nises mar­riages of dif­fer­ent faiths.

The court, how­ever, ruled that “re­li­gion de­ter­mines the va­lid­ity of mar­riage while the law de­ter­mines the va­lid­ity of ad­min­is­tra­tion...”

The plain­tiffs have tried their best in the in­ter­ests of chil­dren and cit­i­zens who fail to find hap­pi­ness be­cause of their dif­fer­ent faiths. An older gen­er­a­tion of In­done­sians might agree with re­li­gious lead­ers who stip­u­late that prospec­tive brides and bride­grooms should stick to spouses of the same faith to bet­ter en­sure fam­ily har­mony. But life is not like clockwork.

The court has up­held re­spect for re­li­gious be­liefs, but in do­ing so has failed to pro­tect chil­dren and pro­vide le­gal cer­tainty and the pos­si­bil­ity of hap­pi­ness to cit­i­zens in in­ter­faith unions. This is an ed­i­to­rial pub­lished by The Jakarta Post on June 25.

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