KOMPAS, 6 February 2018 – The legal aspect seems to be the weakest in efforts to prevent child marriage in the country. In practice, isbat nikah (a marriage conducted according to customary religious law) and the dispensasi nikah (marriage dispensation; an application to the religious court for permission to marry an underage partner) are two loopholes that can turn the illegal act of marrying a child, legal. Furthermore, both tacitly acknowledge the “legality” of non-state regulations that should thus be deemed illegal, with legal sanctions for violators.
Historically, the existence of non-state laws, including religious and customary laws, are inseparable from the wealth of laws that have existed in Indonesia long before the colonialists brought with them the concept of laws as a consequence of a modern state.
Colonial advisors such as Snouck Hurgronje or Islamic law expert Van den Berg assured that maintaining the customary and religious laws of a colonized people would prevent uprisings.
At the same time, the stance would help the colonial government gain support and acknowledgment for applying ethical policies to a colonized people. Therefore, legal pluralism emerged through recognizing the practice of religious and customary laws, especially in family matters, including marriages, inheritances and donations.
Legal domination and tyranny
During the New Order, advocacy continued for establishing customary and religious laws on an equal standing with state laws. This was especially relevant in relation to indigenous people who wanted to maintain their traditional laws to protect their communal right to customary lands. Activists fought for the implementation of legal pluralism to prevent the unilateral domination of state laws that might be abused to take over indigenous lands as concession areas.
The political nuances that underlined this movement might have been different from those during the colonial era. If legal pluralism was implemented during the colonial regime to tame the colonized population, it was used under the New Order to protect the lands of indigenous groups and tribes that were vulnerable to state occupation in the name of economic development.
However, in relation to family law, the state attempted to consolidate all marriage laws through the Marriage Law (Law No. 1/1974), and the Compilation of Islamic Laws (KHI) under Presidential Instruction No. 1/1991. Under these two regulations, all citizens, Muslims and non-Muslims alike, are required to abide by national laws. The regulations also affirm the authority of state laws above religious laws.
Different from agrarian issues in which activists fight for and defend legal pluralism for the protection of nature-dependent indigenous groups, providing space for customary and religious laws has never been a focal point of struggling for legal pluralism in family law. On the contrary, activists tend to agree on regulating family law through state laws.
In this context, Barry Hooker, an Australian professor of Islamic law, introduced the concept of big laws and small laws to differentiate the level of legal sources between state laws and religious laws (or fikih in Islam) in resolving family matters. For Hooker, what was important was that small laws must abide by big laws.
Such a mindset is manifested in practice through regulations that necessitate a legal hierarchy in which the 1945 Constitution and national laws must serve as the foundations of all derivative regulations. In such a hierarchy, religious and customary laws must not contradict state laws or other regulations that rank above them.
However, it seems that, in the discourse over legal pluralism, no one could imagine that communal, customary and religious laws would be powerless in the face of state laws that were established as a concept of the post-colonial modern state.
Recognizing legal pluralism, which originally aimed to provide recognition and protection for communal, customary and religious laws against the intimidation and oppression of state laws, could lead to legal domination or, at the very least, legal contestation. No one took into account the prerequisites necessary to create such a legal order.
Legal pluralism can only be implemented in a democratic and egalitarian society with equality in social relationships and one that relies on legal philosophy instead of mere personal beliefs. In a non-egalitarian and undemocratic society that does not believe in the principle of equality, legal pluralism can become tyranny. Small laws can be used to shackle bigger laws.
This is being prompted by legal contestations in which religious laws are prioritized over state laws, based on a belief in the sanctity of its source. This is reflected in justifying child marriage through the use of Islamic textual laws that are accepted as actual laws.
In order to resolve this issue, University of Indonesia professor Sulistyowati Irianto said that legal pluralism should be open to new and global regulations, including international conventions on human rights. Legal pluralism should also serve as a tool to correct customary laws when these are not in line with principles of justice.
Loose age boundary
Conventions on child rights and discrimination against women are stronger legal foundations in efforts to prohibit child marriage.
Islamic family law researcher Stjin van Huis of the Netherlands wrote in his research on religious courts in Cianjur and Bulukumba that, in relation to child marriage, judges can refer to social laws and norms in issuing dispensations as long as a minimum age restriction is enforced.
The problem is that Indonesia does not recognize a minimum age restriction for filing marriage dispensations, leading to judges relying mostly on their own discretion in marriage dispensation cases. Therefore, in cases of child marriage, the state seems to lack firmness in implementing age restrictions as stipulated in the Marriage Law. This shows that religious laws still have a significant influence on people – even beyond state laws. Perhaps the influence of religious laws is growing along with the expanding landscape of religious politics in Indonesia’s increasingly conservative public spaces.
As Michael Pelatz wrote in his book, Modern Islam, Religious Courts and Cultural Politics in Malaysia, family law and their implementation by religious courts are critical in helping to create a civil society that abides by national laws and individual rights. At the same time, these laws can free individuals – especially women – from the unjust primordial shackles of ethnicity, traditional customs and gender.
Coordinator of Empowerment Programme, Rumah Kitab