religious freedom vs. women's rights in indonesia: the case of mohammad insa

FAye yIk-WeI ChAn *

Religious Freedom vs. Women’s Rights in Indonesia:

The Case of Mohammad Insa

Foreword

Decision No.12/PUU-V/2007 was handed down by the Constitutional Courtof Indonesia (Mahkamah konstitusi Republik Indonesia, hereinafter theConstitutional Court) on 3 October 2007. 1 In it the Court dismissed apetitioner’s application for a judicial review of Law No.1 of 1974 onMarriage (hereinafter the 1974 Marriage Law), specifically Article 3(1),Article 3(2), Article 4(1), Article 4(2), Article 5(1), Article 9, Article 15, andArticle 24. The provisions in question are used by the state to regulate thecontracting of polygamous marriages in Indonesia.

The petitioner, Mohammad Insa, declared these provisions to be aviolation of his constitutional right to religious freedom, including thepractice of polygamy, which he and many other like-minded Muslimsbelieved to be an integral part of their faith. In his application, Insa referredto polygamy as ibadah, which means “devotional practice”. 2 He argued that:

Archipel 83, Paris, 2012, pp. 113-145

* The author is indebted to Professor Tim Lindsey and Professor Claudine Salmon for theirvaluable comments, and to the ALC/CILS for providing the facilities to support this research.The English-language Qur’anic verses in this article are cited from M.A.S. Abdel Haleem, trans.,The Qur’an: A new translation (Oxford: Oxford University Press, paperback ed., 2005). AllIndonesian-English translations were made by the author. Any errors remain the author’s own.

1. The original Decision is available from:<http://www.mahkamahkonstitusi.go.id/putusan_sidang.php>. Hereinafter ConstitutionalCourt Decision No.12/PUU-V/2007.

2. Ibadah can also be taken to mean “religious observance”, “religious duty” or “religiousobligation”. For the sake of consistency, ibadah is translated as “devotional practice” in this article.

. as an Indonesian citizen, he had the right to practise Islam, and thuspractise polygamy, because the fundamental right to practise one’sreligion is a basic human right which is guaranteed by the 1945Constitution of the Republic of Indonesia (hereinafter, the 1945Constitution) to all Indonesian citizens;

. the existence of the aforesaid provisions in the 1974 Marriage Law notonly violated his religious freedom and human rights, but alsocontravened the 1945 Constitution;

. the Constitutional Court should therefore declare the aforesaidprovisions to be in conflict with the 1945 Constitution, and thus do notpossess binding legal powers.

In his view, Muslims in Indonesia should be allowed to engage in polygamywithout any conditions attached, as a sign of the religious freedom andhuman rights which are enshrined in the 1945 Constitution. Indonesia is acountry which guarantees that every citizen is able to perform the devotionalpractices of their religion, which according to Insa, should include polygamyfor Muslims. 3

The Mohammad Insa case was chosen for this article because it is anexample of how personal interpretations of religious freedom and gender-biased (patriarchal) interpretations of Qur’anic verses, can challenge to therights of Indonesia’s Muslim women. The 1945 Constitution accorded thesame rights to all Indonesian citizens, both men and women, and Muslimwomen in 21st century Indonesian society are highly visible in the publicsphere with many in leadership positions. Nevertheless, they still experiencedisadvantages when compared to their male counterparts, particularly insecular and Islamic family laws, as well as syar’iah-influenced regional by-laws (Blackburn 2004; Doorn-Harder, 2006; Nurmila, 2008 & 2009; White,2006; White & Anshor, 2008).

The Constitutional Court of Indonesia

This Court was established by Law No.24 of 2003 on the ConstitutionalCourt (hereinafter the 2003 Constitutional Court Law). Its powers are set outin the following provisions of the Constitution of 1945:

. Article 24C(1): “The Constitutional Court has the authority to try cases atthe first and last instances, whereby its decision is final for reviewing laws inrelation to the Constitution, to decide on conflicts between state institutionswhose authority are given by the Constitution, to decide on the dissolutionof political parties, and to decide on disputes over general election results.”

114 Faye Yik-Wei Chan

Archipel 83, Paris, 2012

3. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.p].

. Article 24C(2): “The Constitutional Court is obliged to give its decisionon the conclusion of the People’s Representative Assembly 4 concerningallegations of transgressions by the President or Vice-President accordingto the Constitution.”

These provisions were inserted in 2001, during the third round of fouramendments to the 1945 Constitution, that were made annually from 1999until 2002. The Constitutional Court is the first court in Indonesia to begranted such powers in many decades (Butt, 2010: 280). Central to Insa’sapplication is the Court’s jurisdiction over the judicial review of legislation,in his case the 1974 Marriage Law. He had exercised his prerogative torequest such a review, which he based on Article 51(1)(a) of the 2003Constitutional Court Law. 5

The 1974 Marriage Law and Polygamy in Indonesia 6

When the Marriage Bill was first introduced in 1973 by the New Ordergovernment it stirred up a great deal of concern amongst conservativeMuslims. Not only did it propose to prohibit polygamy and unilateraldivorce altogether, it also sought to transfer all issues pertaining to marriage– including Islamic marriage and divorce – to the jurisdiction of the generalcourts. The government had several reasons for drafting this bill, including adesire to improve the social and legal status of Indonesian women, especiallyMuslim Indonesian women, and to reduce the potential of Islam as a sourceof political and legal authority (Butt, 2010: 287). 7 Following protests byMuslim groups, the bill was amended significantly. When the Marriage Lawwas finally passed in 1974, it preserved the jurisdiction of the PengadilanAgama (Religious Courts) over Muslim marriage law disputes. While it didnot prohibit polygamy altogether, it did make it legally difficult for any manwho wished to contract a polygamous marriage which is recognised by thestate (Butt, 2010: 287). (See Table 1 below for the relevant provisions fromthe 1974 Marriage Law.)

Polygamy is a broader term which refers to the practice of having morethan one spouse. (Blackburn 2004: 113; Butt, 2010: supra 31 at 287;

Religious Freedom vs. Women’s Rights in Indonesia 115


4. Dewan Perwakilan Rakyat, DPR.

5. Constitutional Court Decision No.12/PUU-V/2007 section 2.1.2.h. See Table 5 for the fulltext of Article 51(1)(a) of the 2003 Constitutional Court Law.

6. Excellent discussions on the 1974 Marriage Law and its precursors are found in Butt(2008), Cammack et al. (2008) and Katz & Katz (1975 & 1978). For detailed treatments ofthe polygamy debate in Indonesia throughout the 20th century and in more recent times, seeBlackburn (2004: 111-137) and Nurmila (2008 & 2009).

7. For in-depth treatment of the tensions between the state and Islam in Indonesia, see Butt(2008 & 2010).

Hoesterey 2008: supra 3 at 96). That which is commonly referred to as“polygamy” in Indonesia is “polygyny”, a marriage involving more than onewife simultaneously. 8 It is also conditional polygamy, regulated by the 1974Marriage Law and the Compilation of Islamic Law (kompilasi hukumIslam, KHI) (see Table 1 and Table 2). 9

Table 1

Law Provisions

No.1 of 1974 Article 2(1): “A marriage is considered on marriageon Marriage valid, if conducted in accordance with the rules of

the respective religion and beliefs of the parties.”

Article 2(2): “Every marriage is recorded in accordance with existing legislation.” 10

Article 3(1): “In principle, in a marriage a man can only have one wife, a wife can only have one husband.” 11

Article 3 (2): “The Court 12 can give permission to a man to marry more than one wife if it is so desired by the respective parties.” 13



8. This author adheres to the definition of polygamy as it is used in Indonesia, thus amarriage with more than one wife.

9. For more extensive discussions on polygamy and the 1974 Marriage Law, and marriagelaw reform in Indonesia, see Butt (2008 & 2010), Cammack et al. (2008) and Katz & Katz(1975 & 1978). See Butt (2008): 274 for a description of the Compilation of Islamic Law.

10. The elucidation of Article 2 reads: “In the formulation of Article 2 Paragraph (1), amarriage does not exist outside the rules of their respective religion and beliefs, pursuant tothe 1945 Constitution. That which is understood as the rules of their respective religion andbeliefs include the provisions in legislation which are valid for the group of their religion andbeliefs, insofar as these are not in conflict with, or are not otherwise specified in this law.”(emphasis the author’s)

11. The elucidation of Article 3(1) reads: “This law adheres to the principle of monogamy.”

12. The Religious Court (Nurmila, 2008: supra note 9 at 44).

13. The elucidation of Article 3(2) reads: “The court in giving a decision, in addition todetermining whether the aforesaid conditions in Articles 4 and 5 had been fulfilled, must alsoconsider whether the marriage law provisions concerning the prospective husband permit theexistence of polygamy.” (emphasis the author’s)Cf. Article 65(1) of this law which reads, “In the matter of a husband who intends to marrymore than one wife, pursuant to Article 3 Paragraph (2) of this Law, the following provisionswill take effect:

a. The husband is obliged to give the same guarantee of life’s necessities to all his wivesand children;

Article 4(1): “In cases where a husband is going to marry more than one wife as mentioned in Article 3 Paragraph (2) of this Law, he is obliged to file a petition to the Court of the district where he lives.” 14

Article 4(2): “The Court intended by the information of Paragraph (1) of this Article can onlygive permission to a husband who is going to marry more than one wife when:1. the wife is unable to fulfil her obligations as a wife;2. the wife is afflicted with a physical defect or an incurable disease;3. the wife is barren.” 15

Article 5(1): “In order to be able to file a petition with the Court as intended by Article 4 Paragraph (1) of this Law, the following conditions must be fulfilled :a. there must be agreement from the wife/wives;b. there must be the certainty that the husband has the means to guarantee the necessities of life for the wives and their children;c. there must be the guarantee that the husband will act fairly towards the wives and their children.” 16

Article 5(2): “The agreement which is intended by Paragraph (1) letter a of this Article is not required for a husband when it is not possible to obtain the



b. The second and subsequent wives do not have rights to the joint property whichalready existed prior to the marriages with the second or subsequent wives;

c. All the wives have equal rights to the joint property which came about after theirrespective marriages took place.”

14. Cf. Article 40 of Government Regulation No.9 of 1975 on the Implementation of LawNo.1 of 1974 on Marriage (hereinafter Government Regulation No.9/1975): “When a husbandintends to marry more than one wife, he is obliged to submit a written petition to the Court.”

15. Cf. Article 41(a) of Government Regulation No.9/1975: “The Court then investigateswhether or not there are any reasons which enable the husband to marry again, namely:

. The wife is unable to fulfil her obligations as a wife;

. The wife is afflicted with a physical defect or an incurable disease;

. The wife is barren.”

16. Cf. the following provisions of Government Regulation No.9/1975:

. Article 41(b): “The Court then investigates whether or not there is agreement from thewife, be it a verbal or written agreement, if that agreement is a verbal agreement, thatagreement must be pronounced in a court hearing.”

permission of his wife/wives and they are unable to be party in the agreement, or when there has been no word from his wife for at least two (2) years, or because of other reasons which require the evaluation of a Judge of the Court.”

Article 9: “An individual who is still bound by marriage ties to another person cannot marry again, except in the situations which are mentioned in Article 3 Paragraph (2) and Article 4 of this Law.”

Art. 15: “Any person who is still tied to one of the two parties by marriage, on the grounds that themarriage still exists, can prevent a new marriage, subject to the provisions in Article 3 Paragraph (2) and Article 4 of this Law.”

Art. 24: “Any person who is still bound to one of the parties by marriage and on the grounds that themarriage still exists, can petition for an annulment of the new marriage, subject to the provisions in Article 3 Paragraph (2) and Article 4 of this Law.”

Both Article 15 and Article 24 in the 1974 Marriage Law constitute legalgrounds for an existing wife (or wives) 17 to prevent the husband from takinganother wife. Under these provisions a Chief Judge of a Religious Court may notgive permission for a polygamous marriage – even if it is valid in accordancewith the regulations of Islam – if that particular marriage contravenes theprovisions of Article 3(1), Article 3(2), Article 4(1), Article 4(2), Article 5(1),Article 9, Article 15 and Article 24 in the 1974 Marriage Law. 18



. Article 41(c): “The Court then investigates whether or not the husband has the means toguarantee the necessities of life for the wives and children, by exhibiting (i) documentspertaining to the husband’s earnings which are signed by the workplace treasurer; or (ii)income tax documents; or (iii) other documents which can be accepted by the Court.”

.Elucidation of Article 41(c)(iii): “If the documents as intended by sub-sections (i) or (ii)cannot be obtained, another document can be arranged, that is, as long as the Court isable to accept it.”

. Article 41(d): “The Court then investigates whether or not there is the guarantee that thehusband will act fairly towards the wives and their children, with a statement or acommitment from the husband which is made in the form that is stipulated for it.”

17. The author adheres to Nurmila’s usage of the term “established wife”. See Nurmila(2009) generally.

18. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.2.g].

Table 2

Law Provisions

Compilation of Islamic Law Article 55(1): “Being simultaneously (kompilasi hukum Islam) married to more than one wife is limited to

four persons only.”

Article 55(2): “The main condition for marrying more than one wife, is that the husband must be able to act fairly towards the wives and their children.”

Article 55(3): “When the main condition as mentioned in Paragraph (2) cannot be fulfilled, the husband is prohibited from marrying more than one wife.”

Article 56(1): “A husband who wishes to marry more than one wife must obtain permission from the Religious Court.” 19

Article 56(2): “The filing of an application for permission, intended by Paragraph (1), is carried out in accordance with the procedure as stipulated in Chapter VIII of Government Regulation No.9 of 1975.”

Article 56(3): “Marriages which are carried out with the second, third or fourth wives, without the permission of the Religious Court, do not possess legal powers.”

Article 57: “The Religious Court can only give permission to a husband to marry morethan one wife when:1. the wife is unable to fulfil her obligations as a wife;2. the wife is afflicted with a physical defect or an incurable disease;3. the wife is barren.” 20



19. Cf. 1974 Marriage Law Article 4(1) and Government Regulation No.9/1975 Article 40(see above).

20. Cf. 1974 Marriage Law Article 4(2) and Government Regulation No.9/1975 Article 41(a)(see above).

Article 58(1): “Apart from the main condition which is mentioned in Article 55 Paragraph (2) for obtaining the permission of the Religious Court, the conditions stipulated by Article 5 of Law No.1 of 1974 must also be fulfilled, namely:. there must be agreement from the wife;. there must be the certainty that the . husband has the means to guarantee the . necessities of life for the wives and their children.” 21

Article 58(2): “Subject to the provision of Article 41 letter b in Government Regulation No.9 of 1975, the consent of the wife or wives can be provided in written or oral form, but even though the written consent already exists, this agreement is confirmed with the oral consent of the wife during a hearing at the Religious Court.” (emphasis the author’s)

Article 58(3): “The consent intended by Paragraph (1) letter a is not required for a husband when it is not possible to obtain theconsent of his wife or wives, and they cannot be party to the agreement, or if there has been no word from his wife or wives forat least 2 (two) years, or because of other reasons which require a Judge’s evaluation.” 22

Article 59: “In a situation where the wiferefused to give consent, and the petition for permission to marry more than one wife is based on one of the reasons stipulated by Article 55 Paragraph (2) and Article 57, the Religious Court can decide on giving



21. Cf. 1974 Marriage Law Article 5(1), and Government Regulation No.9/1975 Articles41(b), 41(c) & 41(d) and elucidation of Article 41(c)(iii) (see above).

22. Cf. 1974 Marriage Law Article 5(2) (see above). In these cases, the presiding judgewould decide – on a case by case basis – whether the husband is permitted to marry anotherwife.

permission, after examining and listening tothe wife concerned in a hearing of the Religious Court, and the wife or husband can lodge an appeal in regard to this decision.”

Article 63: “The prevention of a marriagecan be carried out by the husband or wife who is still bound in marriage to either the prospective wife or prospective husband who is about to get married.” 23

In addition to the 1974 Marriage Law and the Compilation of IslamicLaw, there is also Government Regulation No.9 of 1975 on theImplementation of Law No.1 of 1974 on Marriage, where the provisionsregulating polygamy are contained in Chapter VIII (Articles 40-44):“Marrying More Than One Wife”. Article 45(1) of this GovernmentRegulation imposes a maximum fine of 7,500 rupiah on the parties whoenter into a polygamous marriage without judicial consent, while anyRegistrar who abets such a marriage is sentenced to at least three months inprison or given a maximum fine of 7,500 rupiah. Furthermore, Article 279 ofthe Indonesian Code of Criminal Procedure (kitab Undang-undang AcaraPidana, KUHAP) imposes prison sentences of five to seven years on thosewho contract a polygamous marriage without judicial consent (Butt, 2008:271-272 supra note 15 at 272; Butt, 2010: 288).

The incidence of arbitrary polygamy, especially in Java, was significantlyreduced following the enactment of the 1974 Marriage Law, given thegenerally rigorous application of this statute by local Religious Court judges(Butt, 2008: 273; Cammack et al., 2008: 303; Katz & Katz, 1978: 311). 24

Moreover, the Religious Judiciary itself had undergone substantialoverhauling in the years following the implementation of this Law, includingthe qualifications of the presiding judges. Article 13(1) of Law No.7 of 1989on the Religious Judiciary stipulates that a judge of the Religious Court musthold an academic degree (as a syar’iah scholar or a law graduate with amastery of Islamic law). Cammack et al. pointed out that this requirement isa departure from the traditional pattern in which the judges only possessed a



23. Cf. 1974 Marriage Law Article 15 (see above).

24. The cases cited in Butt (2008) and Cammack et al. (2008) respectively involved husbandswho had remarried without the knowledge or consent of the first wife. The cases cited in Katz& Katz (1978) demonstrated the Court’s stringency in assessing the husband’s reasons forwanting another wife: one man cited his “prodigious sexual strength”, the other desired moredescendants even after his first wife had borne him nine children. In all of these cases, theCourt had ruled against the husband.

background in Islamic education but may not have been civil servants(Cammack et al., 2008: supra note 49 at 303).

Nevertheless, there still remains the question of how successful has thestate been at reining in arbitrary polygamy? To this day, unregisteredmarriages among Muslims are still prevalent across present-day Indonesiansociety. Notwithstanding the strict conditions, many polygamous marriagesare extra-judicial (not conducted through proper legal channels), and leavethe wives and children without any legal protection (Nurmila, 2008: 32;White & Anshor, 2008: 147). 25 Three high-profile cases in recent Indonesianhistory come to mind.

The first case, which took place in 1981, concerns Dewanto, a high-ranking official in Soeharto’s state secretariat (Sekretariat negara). Hissecond marriage to Rahmini (his former housemaid) – without his firstwife’s permission – was recognised under religious law, but not state law.When Dewanto was appointed as the head of the presidential palace,Rahmini insisted that she be publicly recognised as his wife. If theirmarriage was made known, it would have cost Dewanto his promotion, andso he had her murdered by members of the Family Mutual Help Association(Musyawarah keluarga Gotong Royong, MKGR) on 10 March 1981. For hispart in this crime, Dewanto was sentenced to ten years in prison. Themurderers each received a thirteen-year sentence (TempoInteraktif, 30January 1982).

According to Sunindyo and Suryakusuma, this particular incident mayhave been the impetus behind the request by Dharma Wanita (the civilservants wives’ association) for legislation to protect the wives of civilservants from arbitrary divorce and polygamy (Sunindyo, 1999: 152;Suryakusuma, 1996: 103-104; TempoInteraktif, 19 September 1981;TempoInteraktif, 30 January 1982). With the enactment of GovernmentRegulation No.10 of 1983 on the Permission for Marriage and Divorce ofCivil Servants (amended by Government Regulation No.45 of 1990), a civilservant who desired to contract a polygamous marriage must obtain hissuperior’s permission. 26

The second case concerns the charismatic preacher Kyai Haji AbdullahGymnastiar, better known as Aa Gym. At the height of his success, he had



25. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.2.g] & [2.1.6.2].In Indonesia, a marriage which is performed before the Islamic religious authorities, but isnot registered, is known as perkawinan siri. The legal force for such marriages is different tothose which are registered in accordance with existing legislation, when it comes to thequestion of heirs, children’s rights, and so forth. If the parents’ marriage was not registered,these children would be considered as illegitimate offspring under state law (Doorn-Harder,2006: 18).

26. For a detailed discussion of this government regulation in relation to the Dewanto caseand Dharma Wanita, see Suryakusuma (1996).

his own weekly television show with millions of viewers nationwide.Devoted fans in their thousands made pilgrimages to his Islamic school and“spiritual tourism complex” Daarut Tauhiid. In 2006, he was courted by anumber of political parties with the intention of having him run as their vice-presidential candidate for the 2009 elections but, in that same year, hisreputation and career suffered irreversible damage when he made it knownthat he had taken a second wife, Rini. He lost his television show andpending television contracts, his business ventures fell apart, he was nolonger invited to government events, and infotainment programmes andgossip magazines showed his female followers shredding his pictures.Although his first wife, Ninih, had apparently given her consent, the veryidea of Aa Gym taking another wife was abhorrent to his female fans. Hehad styled himself as the ideal monogamous husband, totally devoted toNinih. He even serenaded her during his televised sermons while she sat inthe front row. The public outcry against polygamy following the revelationof his second marriage, reinforced by hundreds of protest text messages,prompted the Indonesian President Susilo Bambang Yudhoyono to order areview of the 1974 Marriage Law. 27

The third case is that of Zaenal Ma’arif, who, in 2006, was the leader ofthe Islamic party Partai Bintang Reformasi (PBR) (Star Reform Party), andone of the chairmen of the People’s Representative Assembly (DewanPerwakilan Rakyat, DPR). On 21 December 2006, the day before he marriedhis second wife, Ma’arif formally informed the Indonesian parliament of hisintentions. At the time, his first wife, Siti Rohana, had not given her consent,although his adult children had come to terms with his decision. Shereportedly gave her blessing a few days later, after a meeting with Yenni, thesecond wife, who it was said, had made this personal visit in order to ask forSiti Rohana’s permission and forgiveness. In spite of the seemingly positiverapport between the two wives, the fallout of this polygamous marriage wasdisastrous for their husband’s political career. His party had hoped to garnera lot of female votes during the 2009 elections, and this new marriage wasseen by the party as both risky and self-serving. The party leadership wasworried that support for the party would decline in much the same way asthe substantial drop in support for Aa Gym following his second marriage.Ma’arif was sacked by the party and subsequently removed from his positionin the People’s Representative Assembly (Indonesia Matters, 2006;TempoInteraktif, 25 December 2006; TempoInteraktif, 29 December 2006).

Interestingly, no comment was ever made by the media as to whether thesecond marriages of Aa Gym and Zaenal Ma’arif had received judicialapproval, or whether they had been charged for criminal offences (pursuant



27. For a detailed treatment of the Aa Gym case, see Hoesterey (2008).

to the above-mentioned Article 279 of the Indonesian Code of CriminalProcedure). Given that no charges had been laid, and their first wives hadapparently consented (as stipulated by Article 5(1)(a) of the 1974 MarriageLaw), this author assumes that the second marriages had been judiciallyapproved, although this may not necessarily be the case as prosecutions forillegal polygamy remain rare.

Mohammad Insa is neither a state official nor a celebrity preacher. He isan entrepreneur with a law degree. His case only came to public attentionwhen he took it to the Constitutional Court. He was described in an Opinionpiece of The Jakarta Post (5 October 2007) as “a good citizen” because hehad gone through the proper legal channels (Religious Court, ReligiousAffairs Office) in an attempt to obtain judicial consent for his secondmarriage, rather than emulating countless other men who chose to obtainfalse marriage documents or had their polygamous marriages performed bylocal religious authorities. White and Anshor described Insa’s petition for thejudicial review as a way of testing the state’s restrictions on polygamy(White & Anshor, 2008: 147).

To date, the polemics of polygamy in Indonesia show no signs of abating.In February 2010, the Religious Affairs Ministry introduced a new Bill underwhich all religious marriages must be registered, particularly those which arenikah sirri (unregistered marriages performed by Islamic religiousauthorities). 28 According to existing laws and regulations, a marriage shouldbe registered:

. Article 2(2) of the 1974 Marriage Law: “Every marriage is recorded inaccordance with existing legislation.”

. Article 5(1) of the Compilation of Islamic Law: “In order that theprocedure of marriage for Muslim society is guaranteed, every marriagemust be registered.”

. Article 6(1) of the Compilation of Islamic Law: “In order to fulfil theprovisions of Article 5, every marriage must be conducted before andunder the supervision of a Registrar of Marriages.”

. Article 6(2) of the Compilation of Islamic Law: “A marriage which isconducted outside the supervision of a Registrar of Marriages does notpossess legal power.”

. Article 34(1) of Law No.23 of 2006 on Population Administration(hereinafter the 2006 Population Administration Law): “It is compulsoryfor the inhabitants to report a valid marriage based on the provisions of



28. The husbands in question did not register their other marriages, because they wanted toavoid the state’s restrictions on polygamy. At the time of writing, the Bill was expected to bedebated by the People’s Representative Assembly during the latter part of 2010.

legislation to the implementing agency at the location where the marriagetook place, at the very latest 60 (sixty) days after the marriage date.”

. Elucidation of Article 34(1) of the 2006 Population Administration Law:“… Marriages for Muslim inhabitants are registered by the DistrictReligious Affairs Office (kantor Urusan Agama kecamatan) inaccordance with the provisions of legislation.”

. Chapter II (Marriage Registration) in Government RegulationNo.9/1975 on the Implementation of the 1974 Marriage Law.

However, these provisions do not explicitly define an unregistered marriageas illegal. Such a marriage is simply invalid in the eyes of the state, and anychildren from the union in question would not be eligible for identity cards,public education and so forth. 29 The new Bill, if passed into law, would,however, make the non-registration of all religious marriages, whethermonogamous or polygamous, a criminal offence. Thus, it can be said that theissue of state restrictions on polygamy is likely to engage the Indonesianpublic for many years to come.

Marriage and polygamy in the Qur’an

The following table lists the Qur’anic verses on marriage and polygamy.Verses 3 and 129 of the Sura Al-nisa’ were cited in the submissions of thevarious parties who appeared before the Constitutional Court in theMohammad Insa case. Sura Al-nisa’ Verse 19 was also cited by thegovernment’s expert witness Prof. Dr. Hj. Huzaemah T. Yanggo. Sura Al-Ahzab Verse 50 was cited by the government, and Sura Al-Rum Verse 21 wascited by the Constitutional Court. 30

Table 3

Chapter (sura) & Verse (aya) Text

Sura Al-nisa’ Verse 1 “People, be mindful of your Lord, who created you from a single soul, and from it created its mate, and from the pair of them spread countless men and women far and wide; be mindful of God, in whose name you make requests of one another. Beware of severing ties of kinship: God is always watching over you.”



29. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.2.g], [2.1.3.h], [2.1.6.1],[2.1.6.2], [3.11.a] & [3.11.b].

30. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.5], [2.1.6], [2.2.1.3],[2.2.2.I.D], [2.2.2.I.E], [2.2.2.I.G], [2.2.2.III], [2.2.3], [2.4.2], [3.15.1] & [3.15.4].

Sura Al-nisa’ Verse 2 “Give orphans their property, do not replace[their] good things with bad, and do not consume their property with your own – a great sin.”

Sura Al-nisa’ Verse 3 “If you fear that you will not deal fairly with orphan girls, you may marry whichever [other] women seem good to you, two, three, or four. If you fear that you cannot be equitable [to them], then marry only one, or your slave(s); that is more likely to make you avoid bias.”

Sura Al-nisa’ Verse 19 “(…) nor should you treat your wives harshly (…)”

Sura Al-nisa’ Verse 129 “You will never be able to treat your wives with equal fairness, however much you maydesire to do so, but do not ignore one wife altogether, leaving her suspended [between marriage and divorce]. If you make amends and remain conscious of God, He is most forgiving and merciful.”

Sura Al-Ahzab Verse 50 “Prophet, We have made lawful for you the wives whose bride gift you have paid, and any slaves God has assigned to you through war, and the daughters of your uncles and aunts on your father’s and mother’s sides, 31 who migrated with you. Also, any believing woman who has offered herself tothe Prophet and whom the Prophet wishes to wed – this is only for you [Prophet] and not the rest of the believers: We know exactly what We have made obligatory for them concerning their wives and slave-girls – so you should not be blamed: God is mostforgiving, most merciful.”

Sura Al-Rum Verse 21 “Another of His signs is that He created spouses from among yourselves for you to live with in tranquillity: He ordained love and kindness between you. There truly are signs in this for those who reflect.”



31. Paternal and maternal female cousins.

Mainstream interpretations of Sura Al-nisa’ Verse 3, and in particular theliteral reading of the words “you may marry whichever [other] women seemgood to you, two, three, or four”, resulted in the understanding thatpolygamy is both permitted and recommended by the Qur’an, the primarysource of syar’iah. Indeed, Verse 3 can be described as the theologicalfoundation for the legality of polygamy in Islam, 32 and is used as such bypro-polygamy Muslim intellectuals (Sukidi, cited in White, 2006: 340).Hence, the commonly held belief amongst many Muslims in Indonesia (andelsewhere) that polygamy is a part of syar’iah. In the course of Nurmila’sresearch on polygamous marriages in Java, she often encountered thisstatement from her research participants. The men used it to justify theirpolygamy, while for the women, regardless of their personal feelings on thematter, it was commonly given as the reason for accepting their husband’sdecision to contract a polygamous marriage (Nurmila, 2008: 23).

Nevertheless, as contra-polygamy Muslim intellectuals will argue, acontextual reading of Sura Al-nisa’ Verse 3 leads to the understanding thatpolygamy is both discouraged and prohibited under Islam (Nurmila 2008:23; Sukidi, cited in White, 2006: 340-341). Contextual reading meanslooking at the social, cultural and historical context behind the divinerevelation of a Qur’anic verse (Nurmila, 2008: 23; Saeed, 2008: 214). Onthis argument, Sura Al-nisa’ Verse 3 was revealed to the ProphetMuhammad shortly after his army sustained a terrible defeat by the Qurayshat the Battle of Uhud. The practice of taking multiple wives was already anestablished tradition in pre-Islamic Saudi Arabia, whereas this Qur’anicverse legitimised polygamy specifically to take care of the widows ofnumerous Muslim warriors who had died in defence of Islam. 33 Verse 3limits the number of wives to four, and a Muslim man may only marry up tofour wives on the condition that he is able to make equal provisions for eachwife and their children (Horrie & Chippendale, 2003: 50-51). The concept ofequal provision, of acting in a just manner to each of the wives, is added byVerse 129 of the same Sura (Abduh, cited in Saeed, 2008: 210; Nurmila,2008: 24-25; Sukidi, cited in White, 2006: 340-341). Prominent Muslimfeminists – among them Nina Nurmila (a lecturer at the Faculty of IslamicEducation and Teaching at the State Islamic University in Bandung,Indonesia), Sinta Nuriyah Rahman (the wife of the late Indonesian President



32. Constitutional Court Decision No.12/PUU-V/2007 section [2.2.2.I.E].

33. Both the Indonesian government, in its testimony before the Constitutional Court, and theConstitutional Court during its deliberations of the testimonies from all parties, madereference to the Battle of Uhud as the legitimisation of polygamy for the protection ofwidows and orphans in that particular situation, but not as a licence for arbitrary polygamy(in 21st century Indonesia). Constitutional Court Decision No.12/PUU-V/2007 sections[2.2.2.I.D], [2.2.2.I.H] & [3.17].

Abdurrahman Wahid) and the African-American scholar Amina Wadud(who is well-known for her writings on Qur’anic exegis and gender) – havecalled for a more comprehensive approach to Verse 3, reading it inconjunction with both Verse 2 and Verse 129. Verse 2 was revealed becauseunscrupulous male guardians of wealthy female orphans had actedinappropriately, marrying the young girls themselves to take their inheritance(Nurmila, 2008: 24; Sukidi, cited in White, 2006: 340-341; Wadud, 1999:83; see also Osman, 2010).

Based on the context of revelation and the wording of verses 4:2-3 and 129, the verses canbe interpreted as being not about permission for polygamy, but about the importance ofbeing just toward powerless orphans. If male guardians were afraid of being unfair towardorphans, the Qur’an suggest they marry two, three or four women. However, if they wereafraid of being unjust to more than one wife, then they could only have one wife. Beingjust toward wives, the primary requirement for polygamy, is stated in verse 4:129 to beimpossible for men to achieve. Therefore, it can be understood that in effect polygamy isprohibited (Nurmila, 2008: 24). 34

The laws used by Mohammad Insa to substantiate his case

Insa cited the following provisions from the 1945 Constitution as comprisingconstitutional rights for all Indonesians.

Table 4

Law Provisions

The Constitution of the Republic Article 28B(1): “Every person has theof Indonesia of 1945 right to form a family and to continue (amended on 10 August 2002) one’s lineage through a valid

marriage.”

Article 28E(1): “Every person is free to embrace religion and to perform the devotional practices in accordancewith their religion, to choose education and instruction, to choose work, to choose citizenship, to chooseresidence in a territory of the state, and to leave it, as well as the right to return.”



34. On the Battle of Uhud as the historical context for the revelation of Sura Al-nisa’ Verse3, see also Doorn-Harder, 2006: 231. For more on the contextual reading of Qur’anic versesregarding women, see for example, Saeed, 2008: 13-15, 169-170, 210 & 213, and Wadud(1999) generally.

Article 28I(1): “The right to life, the right not to be tortured, the right to freedom of thought and conscience, the right to religion, the right not to beenslaved, the right to be acknowledged as a private person before the law, and the right not to be prosecuted on the basis of a law which is retroactively effective, are fundamental human rights which cannot be diminished under any circumstance.”

Article 28I(2): “Every person has the right to be free from treatment of a discriminative nature on any basis, and has the right to protection against that discriminative treatment.”

Article 29(1): “The State is based on God the Omnipotent.”

Article 29(2): “The State guarantees the freedom of every inhabitant toembrace their respective religion and to perform the devotional practices in accordance with their religion and beliefs.”

Insa declared that these provisions guaranteed his religious freedom andhuman rights. Therefore, as an Indonesian citizen whose religion is Islam, heshould be allowed to perform all manner of devotional practices related tohis faith, including polygamy. 35 In his opinion, polygamy is central to hisfaith as a good Muslim. He argued that the provisions in the 1974 MarriageLaw did not originate from the provisions of Islam, and were thus inviolation of Article 29(1) and Article(2) of the 1945 Constitution. 36

The following legal standing in the 2003 Constitutional Court Law wasclaimed by Insa, and duly challenged by the government in their testimonybefore the Constitutional Court (see below). 37



35. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.a].

36. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.2.b] & [2.1.3.a-f].

37. Constitutional Court Decision No.12/PUU-V/2007 section [2.2.2.II].

Table 5

Law Provisions

No.24 of 2003 Article 51(1)(a):on the Constitutional Court “The petitioner is the party who

believes that their constitutional rightsand/or authority have been adversely affected by the application of a law, that is to say: a. individual Indonesian citizens …”

Furthermore, He likened the curtailment of his right to engage inpolygamy as a “serious violation” of his human rights, similar in scale togenocide, arbitrary or extrajudicial killings, torture, forced disappearances,slavery and systematic discrimination. 38 He posited this particular argumenton the following provisions from the 1999 Human Rights Law.

Table 6

Law Provisions

Law No.39 of 1999 Article 1(1):on Human Rights “That which is understood as human

rights are a set of rights which are associated with the truth and existence of mankind as creatures of God the Almighty and represent His gift which should be respected, honoured and protected by state, law, government and every person, in the interest of respecting and protecting the dignity and value of mankind.”

Article 1(3): “That which is understood as discrimination is every restriction, harassment, or ostracism which is direct or indirect, based on the unfair treatment of people on the grounds of religion, tribe, race, ethnicity, group, class, social status, economic status, gender, language, political beliefs, which result in the



38. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.m] & [2.1.3.o].

reduction, deviation or eradication of the declaration, implementation or useof human rights and basic freedom in life, be it individually or collectively, in political, economic, legal, social, cultural domains, and in other aspects of life.”

Article 4: “The right to life, the right not to be tortured, the right to freedomof privacy, thought and conscience, the right to religion, the right not to beenslaved, the right to be acknowledged as a private person andequality before the law, and the right not to be prosecuted on the basis of a law which is retroactively effective are fundamental human rights which cannot be diminished under any circumstance by anyone.” 39

Article 10(1): “Every person has the right to form a family and to propagate by means of a valid marriage.” 40

Article 22(1): Every person is free to embrace their respective religion and to perform the devotional practices in accordance with their religion and beliefs.” 41

Article 22(2): “The State guarantees the freedom of every person to embrace their respective religion and beliefs.”

Article 74: “Not a single provision in this law can be taken to mean that anygovernment, party, group, or side is permitted to diminish, damage, or eradicate human rights or basic



39. Cf. Article 28I(2) of the 1945 Constitution.

40. Cf. Article 28B(1) of the 1945 Constitution.

41. Cf. Article 28E(1) of the 1945 Constitution.

freedoms which are stipulated by this law.”

Article 104(1): “In order to judge serious violations of human rights, theCourt of Human Rights was formed within the Court of the General Jurisdiction.”

The reasons behind Mohammad Insa’s petition

Insa declared that polygamy is permitted by “Islamic Marriage Law”, theexistence of which – in his opinion – is guaranteed by the 1945Constitution. 42 By “Islamic Marriage Law” he is referring to the Muslimmarriage law in fiqh books which allowed men to marry and repudiatewomen, and also practise polygamy against an existing wife’s will (Katz &Katz, 1975: 656; Nurmila, 2008: 28). This “marriage law” was derived frommainstream interpretations of Sura Al-nisa’ Verse 3 (Butt, 2008: 269;Cammack et al., 2008: 293; Nurmila, 2008: 28). Insa claimed that theprovisions on polygamy in the 1974 Marriage Law were in conflict with this“Islamic Marriage Law” and did not possess legally binding powers. 43

Despite the fact that the 1974 Marriage Law applies to all Indonesiancitizens, Insa argued that the provisions in Article 3(1), Article 3(2), Article4(1) and Article 4(2) were thus a form of unlawful state intervention inMuslim marriages, and discriminated against Muslims, because thosepolygamy provisions did not apply to Indonesian citizens who are adherentsof other religions. 44

He claimed that Article 5(1) 45 of the 1974 Marriage Law – whichauthorises the wife to provide the necessary permission – is a violation of hishuman rights which are guaranteed by Article 28B(1), Article 28E(1),Article 28I(1) and Article 28I(2) of the 1945 Constitution. 46 According tohis interpretation of these provisions, every resident in Indonesia is free tomarry however one chooses, be it a monogamous marriage or polygamy, solong as such a marriage complies with the requirements of the religionpractised by the parties in question. 47



42. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.a] & [2.1.3.f].

43. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.a], [2.1.3.f] & [2.1.3.l].

44. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.b], [2.1.3.g], [2.1.3.n]& [2.1.3.o]. These provisions in the 1974 Marriage Law apply to all Indonesian citizens,regardless of race and religion, but non-Muslims in Indonesia are less likely to engage inpolygamy as a “devotional practice” of their religion.

45. Cf. Compilation of Islamic Law Article 58(1) which refers to this provision.

46. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.2.c] & [2.1.3.g].

47. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.c].

Insa’s wife had refused to give her permission. As far as he wasconcerned, God did not require the established wife (or wives) to give thehusband permission to marry yet another wife. 48 It is interesting to note thathis entire application for the judicial review was centred on his rights. Therewas no mention of any consideration for the rights of his wife.

With regards to Article 9 of the 1974 Marriage Law, it was declared byInsa to be “detrimental to” (merugikan) him, because it prohibits a marriedperson from simultaneously engaging in another marriage, unless there areextenuating circumstances, such as those stipulated by Article 3(2) andArticle 4 of the 1974 Marriage Law. By reinforcing the principle ofmonogamy, Article 9 thus reduced Mohd. Insa’s prerogative to practisepolygamy. 49

As for Article 15 of the 1974 Marriage Law, Insa was of the opinion thatit was “extremely detrimental to” (sangat merugikan) his constitutionalrights, and the constitutional rights of all Muslims, because it enabled amarried person to prevent his/her spouse from marrying again if they are stillofficially married to each other. 50 According to his interpretation of theaforesaid constitutional rights, particularly the right to embrace a religionand perform all devotional practices relevant to that religion, polygamy is adevotional practice, a “pious deed” which benefits both the husband and the[new] wife:

“… one would have a new partner in life, who would be able to increase one’s zest forlife, and also represents a rich source of Pious deeds, leading even more women toproperly worship God the Omnipotent, 51 and distribute economic prosperity or prosperityin other forms. Not to mention, if the new wife has fatherless offspring, because theProphet Muhammad, may the blessings of God and peace be upon him, proposed thatorphans live within the family, rather than looking after and supporting them inorphanages.” 52 He even claimed that Muslim women who became second, third andfourth wives had been preordained by God for such roles. 53

Article 24 of the 1974 Marriage Law enables the established spouse topetition for an annulment of the new marriage, subject to the provisions inArticle 3(2) and Article 4 of this Law, a condition which effectively reducedInsa’s chances of engaging in polygamy. As far as he was concerned, a wifeshould not interfere in her husband’s affairs! To that effect, he even quotedfrom the following hadith which was narrated by Abu Hurairah: “A woman



48. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.c] & [2.1.3.h].

49. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.d] & [2.1.3.g].

50. Thus, Article 15 enabled Insa’s wife to prevent him – on legal grounds – from takinganother wife. See also Article 24.

51. He regarded polygamy as the path of salvation for women.

52. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.e] & [2.1.3.g].

53. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.o].

should not demand that her husband divorces her co-wife, so that all needsare satisfied, but rather, let the husband marry again, because in allseriousness, a wife’s position is that which has been preordained by God.” 54

Insa also referred to Item 4(e) in the General Elucidation of the 1974Marriage Law which reads: “Because the objective of marriage is to form afamily which is enduringly happy and prosperous, this Law adheres to theprinciple of making it difficult for a divorce to occur, there must be specificgrounds and it must take place in a Hearing of the Court.” 55 He argued thatthe lawmakers who drafted the 1974 Marriage Law had made it difficult forpeople to get divorced, and to engage in polygamy as a religiousobservance. 56 In his opinion, those lawmakers had succeeded, whetherintentionally or unintentionally, in turning polygamy from being a devotionalpractice into something which was no longer a sacred act. 57

To further validate his argument for polygamy, Insa cited from theIndonesian translation of an Arabic book entitled The Wisdom of Polygamyin Islam, in which the author blamed “feminist groups” in the Arab world fortrying to get polygamy abolished in order to curry favour with the West, thusshowing “their arrogance towards the Stipulations of God and theregulations of Islam.” Insa also cited the author’s claim that many Westernphilosophers and social experts had called for a return to polygamy, as the“best solution to solving social problems and the crisis of increasingnumbers of women.” 58

Prior to approaching the Religious Court (Pengadilan Agama) andReligious Affairs Office (kantor Urusan Agama, KUA) in person, Insa hadwritten to the People’s Representative Assembly (Dewan PerwakilanRakyat, DPR) (letter dated 25 August 2005) and to the President (letter dated2 November 2006) regarding the aforesaid provisions in the 1974 MarriageLaw. At the time, other than corresponding about this case, neither thePresident’s Office nor the People’s Representative Assembly appeared tohave taken this matter further. 59 Indeed, the latter’s official response wasonly delivered nearly two years later, during the hearing of 27 June 2007 atthe Constitutional Court. 60



54. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.f] & [2.1.3.g].

55. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.i].

56. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.3.i], [2.1.3.j], [2.1.3.k],[2.1.3.p] & [2.1.3.q].

57. Constitutional Court Decision No.12/PUU-V-2007 section [2.1.3.j].

58. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.r].

59. Copies of the correspondence were sent to Mohammad Insa. Constitutional CourtDecision No.12/PUU-V/2007 sections [2.1.2.f] & [2.1.5]. (To the best of this author’sknowledge, details of the correspondence were not made public.)

60. Constitutional Court Decision No.12/PUU-V/2007 section [2.3].

Given the apparent lack of concrete action from the highest levels ofgovernment to remove restrictions on polygamy as Insa requested, hedecided to exercise his rights as an Indonesian citizen and duly submitted hisapplication for the judicial review in April 2007 to the ConstitutionalCourt. 61 In the month that followed, he also made submissions – both inwriting and in person – to the Religious Court of South Jakarta (his place ofresidence) and the Religious Affairs Offices of Kebayoran Baru andPesanggrahan in South Jakarta for official permission to engage inpolygamy. He even travelled all the way to a town in Central Java, where hemade his case before the local Religious Affairs Office.

In each submission, Insa requested clarification as to whether he waspermitted to carry out polygamy, given that he already has a wife who :

1. is healthy and not disabled

2. is able to perform her wifely duties

3. has already given birth.

His intention was to contract a polygamous marriage which would bevalid under national law, even though his first wife had not given herconsent. 62

Similar responses were given by all the institutions he consulted. TheReligious Court could not sanction a polygamous marriage between Insa andanother woman, because he did not fulfil the conditions stipulated by the1974 Marriage Law regarding polygamy. The Religious Affairs Office(irrespective of its location) was not prepared to register a polygamousmarriage unless there was an official letter of permission from the ReligiousCourt.

When Insa first approached the Religious Court in South Jakarta on 21May 2007, the judge who received him explained that his petition would beexamined by a judge during a court hearing, irrespective of whether hewould be granted the necessary permission. For Insa, this procedure meantthat the Religious Court of South Jakarta had diminished his freedom toengage in polygamy as a devotional practice, on the grounds of the aforesaidprovisions from the 1974 Marriage Law. In other words, his prerogative tocontract a polygamous marriage, without needing anyone’s permission, hadbeen taken over by the Chief Judge of the Religious Court of South Jakarta.Compliance with the decision of the Chief Judge thus meant that there was



61. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.2.h].

62. Letter from Mohammad Insa to the Chief Judge of the Religious Court in South Jakarta,dated 22 May 2007, which made known the fact that Insa’s wife had disagreed with hisintention to engage in polygamy. Constitutional Court Decision No.12/PUU-V/2007 section[2.1.3.h].

no basis in which Insa could engage in polygamy. As for the insistence bythe Religious Affairs Office on permission from the Religious Court, Insaviewed that particular condition as a hindrance to his personal desire toperform the devotional practices of his religion, which, in his opinion,should include polygamy. 63

To support his petition before the Constitutional Court, Insa produced twoexpert witnesses at the hearing on 23 August 2007. Dr. Ahmad Sudirmanwas of the opinion that Islam did not stipulate that a husband is onlypermitted to engage in polygamy when his established wife is disabled orunable to fulfil her duties as a wife. Dr. Eggi Sudjana declared that theprinciple of monogamy endorsed by the 1974 Marriage Law was in conflictwith the principle of polygamy, which he contended is permitted by God. Heargued against the 1974 Marriage Law on the grounds that it:

. facilitated divorce, adultery, deception and prostitution;

. violated the human rights of those who are faithful to the Qur’an andTraditions (Sunnah);

. violated the human rights of children from unregistered polygamousmarriages because their births would not be legally recognised (childrenwithout birth certificates are not eligible for state schools). 64

The testimonies of the government and the People’s Representative

Assembly (Dewan Perwakilan Rakyat, DPR) before the Constitutional Court

The opening statement of the government’s testimony was presented at aConstitutional Court hearing on 27 June 2007 by the then Minister ofReligion, H.M. Maftuh Basuni. It set forth a number of issues.

Firstly, the fundamental rights enshrined in the 1945 Constitution are stillregulated by law, as stipulated by Article 28J(1): “Every person is obliged torespect the human rights of others in the order of life as a society, as a nationand as a state.” Moreover, when exercising his or her rights, the individual isstill expected to respect the rights of other people, and that means obeyingthe legal limitations as stipulated by Article 28J(2): “In exercising theirrights and freedom, every person is obliged to obey the restrictions which areestablished by law, with the sole purpose of guaranteeing recognition as wellas respect for the rights and freedom of other persons, and to fulfil demandswhich are fair, in accordance with moral considerations, religious values,security, and public order in a democratic society.” In other words, thehuman rights guaranteed by the 1945 Constitution are conditional. One



63. Constitutional Court Decision No.12/PUU-V/2007 section [2.1.3.h].

64. Constitutional Court Decision No.12/PUU-V/2007 sections [2.1.2.g], [2.1.3.h], [2.1.6.1],[2.1.6.2], [3.11.a] & [3.11.b].

cannot freely exercise one’s rights while disregarding the rights of otherpeople (such as Insa’s wife).

The government stated that, in line with Article 28J of the 1945Constitution, the 1974 Marriage Law does not contravene the 1945Constitution. Articles 3, 4, 5, 9, 15 and 24 may appear to restrict the rights ofindividuals who wish to freely engage in polygamy, but those provisions alsoprotect the rights of those who might otherwise be adversely affected by apolygamous marriage (namely, the established wife/wives and theiroffspring). 65

Secondly, polygamy is not a fundamental right. According to thegovernment, Article 28B(1) of the 1945 Constitution – the constitutionalright of the individual “to form a family and to continue one’s lineagethrough a valid marriage” – should not be interpreted as a licence to engagein polygamy. As far as the government was concerned, marrying more thanone wife is not a fundamental right (a prerogative). This particular“fundamental right” can only be exercised by the husband, when the statusof his established wife falls under any of the categories stipulated by Article4(2) of the 1974 Marriage Law. 66

Thirdly, Islam adheres to the principle of monogamy. The governmentinterpreted Sura Al-nisa’ Verse 3 as an affirmation of monogamy, and not ajustification of polygamy. The government then used Verse 129 of the sameSura to reinforce their argument about Verse 3. In the government’s opinion,these two verses together – Verse 129 reinforcing Verse 3, marrying one wiferather than being unable to treat all four wives fairly – show that Islamadheres to the principle of monogamy. The government concluded fromthese two verses that the principle of monogamy adhered to by the 1974Marriage Law is in line with the teachings of Islam. As far as thegovernment was concerned, the stipulations on polygamy in the 1974Marriage Law did not diminish the freedom of the individual to perform thedevotional practices of their particular religion, and thus did not contraveneArticle 28I and Article 29 of the 1945 Constitution. 67

Fourthly, although the 1974 Marriage Law is a secular law, it still takesIslamic values and the provisions of Islamic law (fiqh) into consideration.However, because it is a national law, it must assume a neutral position indealing with all the citizens of Indonesia, irrespective of their religion.Hence, it could not simply adopt the provisions of Islam and disregard the



65. Constitutional Court Decision No.12/PUU-V/2007 sections [2.2.1.1], [2.2.1.2],[2.2.2.I.A] & [2.2.2.III.B.2].

66. Constitutional Court Decision No.12/PUU-V/2007 section [2.2.1.2].

67. Constitutional Court Decision No.12/PUU-V/2007 sections [2.2.1.3], [2.2.2.I.E] &2.2.2.I.G].

other religions. This Law represents a maximum compromise between thereligions which are practised in Indonesia. The articles of the 1974 MarriageLaw which regulate polygamy do not contravene the 1945 Constitutionbecause the Marriage Law does not restrict the implementation of religiouslaw, it only restricts certain issues – such as polygamy – which, in thegovernment’s opinion, are supplementary to the religious law in question. 68

Lastly, the provisions in the 1974 Marriage Law are legally certain. Theseprovisions regulate the rights and obligations of husband and wife; therights, obligations and procedures involved in a polygamous marriage, andwhether or not a particular polygamous marriage is lawful. Articles 15 and24 can also prevent a husband from engaging in polygamy whenever helikes, with complete disregard for the welfare of his established wife (wives)and their offspring. 69

Furthermore, the government’s testimony reinforced the official ideal ofan Indonesian family, that of the keluarga sakinah, which was promoted bythe planned parenthood programme during the New Order era. The keluargasakinah is a small, happy and prosperous family founded on a monogamousmarriage with a maximum number of two children (Butt, 2008: 274-275).The testimony also highlighted the harsh reality for many Indonesian womenand children who are trapped in polygamous marriages or forced into sucharrangements, and the efforts of Indonesian Muslim feminists and NGOs toaddress the issue of domestic violence that occur in polygamousmarriages. 70

The government challenged Insa’s legal standing in this petition – whichhe based on Article 51(1) of the 2003 Constitutional Court Law – and hisclaim that the enactment of the 1974 Marriage Law had caused him to suffera loss of constitutional rights. In the government’s opinion, Insa did notsustain any “constitutional loss” as a consequence the 1974 Marriage Law,and thus his legal standing in this petition did not fulfil the stipulations ofArticle 51(1) of the 2003 Constitutional Court Law. 71

Not all religions in Indonesia permit polygamy, and the government hadto clarify its position on polygamy, hence, the provisions for regulating thistype of marriage. 72 The government maintained that the principle ofmonogamy in the 1974 Marriage Law is there to protect women (upholdtheir human rights) from the arbitrary actions of their husbands who desire tomarry more wives, and also protect the rights of any children in the existing





70. Constitutional Court Decision No.12/PUU-V/2007 sections [2.2.2.I] & [2.2.2.I.H].

71. Constitutional Court Decision No.12/PUU-V/2007 section [2.2.2.II].

72. Constitutional Court Decision No.12/PUU-V/2007 section [2.2.2.III.B.1.g].

marriage. 73 In short, the government will not hinder a married man fromengaging in polygamy, provided that he fulfils the stipulations of theaforesaid provisions in the 1974 Marriage Law.

The government called on Prof. Dr. M. Quiraish Shihab and Prof. Dr. Hj.Huzaemah T. Yanggo as its expert witnesses. Both testified that while theprinciple of marriage in Islamic teachings is monogamy, there is still apossibility for polygamy under certain conditions (thus, Verse 3 of the SuraAl-nisa’). 74

The written testimony of the People’s Representative Assembly was alsoread out at the aforesaid court hearing on 27 June 2007. It was delivered byHj. Nursyabani Katjasungkana, the proxy appointed by the People’sRepresentative Assembly.

According to the People’s Representative Assembly, while it is true thatInsa’s constitutional rights are guaranteed by the aforesaid articles from the1945 Constitution, the Constitution also restricts how those same rights areused – as stipulated by Article 28I(5) and Article 28J(2) of the Constitution –so as to ensure that the rights of others are also recognised. In the context ofmarriage, the rights of the wife, like the rights of all women, must also berespected, as guaranteed by Article 28J(2). 75

The People’s Representative Assembly further stated that the 1974Marriage Law acknowledges other religions and beliefs which recognise theprinciple of monogamy only for marriage, and by stipulating monogamy asits primary principle, this law also acknowledges that women and men haveequal standing, as stipulated in Article 27(1) of the 1945 Constitution, whichalso provides that every Indonesian citizen – without any exception – isobliged to uphold the law (existing laws and regulations). 76

As far as the People’s Representative Assembly was concerned, Article3(2), Article 4 and Article 5 of the 1974 Marriage Law already givesufficient leeway for a married man to engage in polygamy, while Articles 9,15 and 24 are there to ensure that the husband does not act in an arbitraryfashion (to ensure that if he engages in polygamy, he does so in a responsiblemanner, with due consideration for the welfare of his established wife/wivesand their offspring). 77



73. Constitutional Court Decision No.12/PUU-V/2007 sections [2.2.2.III.B.2.c] &[2.2.2.III.B.4.c].

74. Constitutional Court Decision No.12/PUU-V/2007 sections [2.2.3], [3.12], [3.15.3] &[3.15.4].



77. Constitutional Court Decision No.12/PUU-V/2007 sections [2.3.3.7], [2.3.3.8] &[2.3.3.9].

Testimonies by women’s rights advocates

A number of women’s rights advocacy groups also appeared before theConstitutional Court, to request the dismissal of Insa’s petition (White &Anshor, 2008: 148). These Indirectly Involved Parties (Pihak Terkait TidakLangsung) included the National Commission on Women (komnasPerempuan); the “Network of the Pro-Women Legislation Programme”(Jaringan kerja Program Legislasi Pro Perempuan, JKP3), and the NationalWomen’s Congress (kongres Wanita Indonesia, KOWANI). They submittedtheir own testimonies to the Constitutional Court.

The testimony by komnas Perempuan was delivered by theirchairwoman, Kamala Chandrakirana, at a hearing of the Constitutional Courton 23 August 2007. In their view, Insa had frequently cited Article 29 of the1945 Constitution as his constitutional right to engage in polygamy as adevotional practice of his religion, but the 1974 Marriage Law has its ownconstitutional foundation in Article 27 of the 1945 Constitution, whichstipulates that every citizen is obliged to uphold the law and government,without exception [emphasis the author’s].

komnas Perempuan also cited from deliberations conducted in 1973 bythe People’s Representative Assembly, during the formulation process of the1974 Marriage Law. The formulators acknowledged that provisions wereneeded to prevent the arbitrary occurrence of polygamy and divorce, and thepath taken by the court is to reduce the occurrence of polygamy anddivorce. 78

The testimony of JKP3 was presented at the aforesaid court hearing of 23August 2007 by their chairperson, Ratna Batara Munti. Contrary to Insa’sclaim of unconditional religious freedom, the JKP3 asserted that the right toreligious freedom is conditional, and is both a privilege and a responsibility.In other words, the existing legal restrictions are there to ensure that theindividual exercises his/her religious freedom in a responsible manner, thatdoes not infringe upon the rights of others. 79

Just as Insa had used religious experts to further his case, the JKP3 in turncited Islamic scholars who opposed polygamy and who interpreted Verses 3and 129 of the Sura Al-nisa’ accordingly. The JKP3 interpreted theseQuranic verses on polygamy as a gradual movement in Islam towardsmonogamy. They cited historical data which showed that polygamy wasactually a pre-Islamic custom on the Arab Peninsula and in other cultures aswell, whereas Islam had acted to restrict the practice of polygamy as aprocess of moving marriage towards the principle of monogamy. 80



78. Constitutional Court Decision No.12/PUU-V/2007 section [2.4.1].



The JKP3 highlighted statistical data gathered by the Women’s Legal AidFoundation (Legal Aid Association of Indonesian Women for Justice)(Lembaga Bantuan hukum Asosiasi Perempuan Indonesia untuk keadilan,LBH APIK), which demonstrated that the wives and children in polygamousmarriages often suffered various forms of abuse, as well as neglect,deprivation and abandonment. They viewed polygamy as being cruel anddiscriminatory towards women, a sexual double standard which expects thewife to remain faithful but not the husband, and a form of deception which isboth legitimised by the state (namely, the polygamy provisions in the 1974Marriage Law which authorises polygamy under certain conditions) and inthe Qur’an. 81

The testimony by KOWANI was presented at the same court hearing on23 August 2007. They stressed that cruelty, whether physical or mental (orboth) was often a direct result of polygamy, the husband coercing his currentwife into giving permission with threats against her and their children, evenphysical violence. They argued that the existing laws and regulationspertaining to marriage and family should be upheld, especially by those whoare married. They challenged Insa’s claim that his human rights had beenviolated by the 1974 Marriage Law’s provisions on polygamy. In their view,these provisions clarified the rights and obligations of the husband and wife,so that, if the couple do proceed with polygamy, it would be carried out in alegal manner. 82

The position taken by the Constitutional Court and its Final Verdict

In its judgement, the Constitutional Court found that polygamy already existedin many ancient cultures before the advent of Islam. The teachings of Islam –specifically the Qur’anic provisions on marriage and polygamy – were intendedto rein in the excesses of polygamy and protect women.83 The basic principleof marriage in Islam is still monogamy, as polygamy, though permitted byIslam, can only be carried out under certain conditions (Verses 3 and 129 of theSura Al-nisa’).84 The state, as the highest organisation in Indonesian society,has the authority and the duty to ensure – by means of existing laws andregulations – that a polygamous marriage is conducted fairly, thus, the wivesand children are accorded equal treatment by the husband/father. This is also inaccordance with the teachings of Islam, whereby the state (ulil amri) has theauthority to stipulate conditions for the practice of polygamy.85








The Court maintained that the preservation of keluarga sakinah isparamount, so the husband who wishes to engage in polygamy must firstconsider the feelings of his established wife, and also obtain her consent. 86

The Court also challenged Insa’s claims of the benefits of polygamy for themoral salvation of women and as a solution for the supposed excess numbersof women. 87 In the opinion of the Court, the conditions and proceduresstipulated by the 1974 Marriage Law’s provisions on polygamy are there toguarantee the rights of both the established wife/wives and the new wife.Those provisions were formulated to make sure that the husband carried outpolygamy in a fair manner. 88 After considering the arguments anddocuments presented by Insa, and the testimonies of the other parties, theCourt found as follows:

. The provisions in the 1974 Marriage Law that reinforce the principle ofmonogamy as the basis for marriage, and which permit the contracting ofpolygamous marriages under specific conditions, were not in conflictwith Islamic teachings.

. Article 3(1), Article 3(2), Article 4(1), Article 4(2), Article 5(1), Article 9,Article 15 and Article 24 of the 1974 Marriage Law do not violate the rightto form a family, the right to religious freedom and to perform thedevotional practices of one’s religion, and the right to be free from acts of adiscriminative nature, as stipulated by Article 28B(1), Article 28E(1),Article 28I(1), Article 28I(2), Article 29(1) and Article 29(2) of the 1945Constitution.

. The arguments postulated by Insa were groundless, to the extent that hisapplication for the judicial review should be dismissed.From this it can be said that the Court had accepted the government’ssubmissions almost in their entirety.

The Court duly handed down its decision on 3 October 2007, and Insa’spetition was formally dismissed, on the grounds that the basis of marriage inIslam is monogamy. The decision also stated that polygamy is about socialrelations between human beings (mu’amalah), and is not a devotionalpractice (ibadah). Therefore, the state has the right to regulate polygamy, sothat the achievement of sakinah (serenity, peace and happiness) remains theprimary goal of a marriage. Since polygamy is not a devotional practice, theexisting provisions on polygamy in the 1974 Marriage Law do not contradictIslamic teachings. Polygamy is also the primary cause for divorce. As for




87. Constitutional Court Decision No.12/PUU-V/2007 sections [3.16] & [3.17].


Insa’s claim that polygamy is the all-purpose solution for adultery,prostitution and the excess numbers of women over men, that was merelyconjecture on his part. 89

Conclusion

Insa was an individual who asserted his interpretation of religious freedomover that of the state’s, and yet he went to an agency of the state – theConstitutional Court – in order to prove his point. If the Court had grantedhis request for the judicial review, there would have been widespreadimplications, particularly for Muslim women. Instead, the Court upheld thatIslamic law is not simply a matter of private belief, but is determined bywhat the state interprets as “Islamic law”, especially when it has social andpolitical consequences.

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LegIsLATIon

Compilation of Islamic Law (1991)

The Constitution of the Republic of Indonesia of 1945 [amended on 10 August 2002]

Government Regulation No.9 of 1975 on the Implementation of Law No.1 of 1974 onMarriage

Government Regulation No.10 of 1983 on the Permission for Marriage and Divorce of CivilServants

Government Regulation No.45 of 1990 on Amendments to Government Regulation No.10 of1983 on the Permission for Marriage and Divorce of Civil Servants

Indonesian Code of Criminal Procedure

Law No.1 of 1974 on Marriage

Law No.7 of 1989 on the Religious Judiciary

Law No.39 of 1999 on Human Rights

Law No.24 of 2003 on the Constitutional Court

Law No.23 of 2006 on Population Administration



religious freedom vs. women's rights in indonesia: the case of mohammad insa

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