Opinion

Restricting or banning
polygamy, human rights
values must stand

Ridarson Galingging, Jakarta

Prompted by noted television Muslim preacher Aa Gym's controversial decision to take a younger and more beautiful second wife, the State Minister for Women's Empowerment Meutia Farida Hatta Swasono has initiated an amendment to the country's rules and regulations on polygamy.

Aa Gym is famous among women for promoting harmonious family values. It was his first wife and mother of seven children who affirmed the rumors, saying the polygamy was done with her consent, and that everything was fine. Acting as a witness in the second ""marriage"" conducted this past September was Miftah Faridl, chairman of the Bandung branch of the Indonesian Ulema Council.

It was not until the second marriage became public in this December that Aa Gym complied with government regulations requiring him to get a court order approving his intended polygamy. It was a clear violation of the polygamy regulations to seek approval after the ""marriage"" rather than before.

The court should not have given Aa Gym post-hoc permission to have a second wife because he did not comply with the 1974 Marriage Law and government regulation No. 9/1975 that allow divorce only if his first wife is barren, unable to perform her duties as a wife or have an incurable illness. Aa Gym presented the court with a fait accompli.

It is not yet clear whether Minister Meutia plans to impose a total ban on polygamy or just add more restrictions to the existing laws and regulations. What is certain is that her proposed amendment will apply to all civil servants, lawmakers, Cabinet ministers and other political appointees, governors, heads of districts, soldiers, and the police.

The existing laws and regulations on polygamy, as stipulated in the 1974 Marriage Law and government regulations No. 9/1975 and No. 45/1990, do not ban the practice, but rather make it more complicated by making it a non-private matter. The clear intent is to make sure men cannot quietly and even secretly take additional wives.

Thus a civil servant intending to become a polygamist is compelled to get his superior's approval and a court order. Members of the general public, like Aa Gym, only have to get the court order. All prospective polygamists are required to get the consent of the first wife and prove she is barren, or prove that she can't perform her duties as a wife or has an incurable illness.

If the rules on polygamy applying to civil servants are broken, sanctions can and have been applied. There are no sanctions that apply to polygamists in the general public, as was seen in Aa Gym's case.

An immediate and quite obvious problem with the law is that it applies with greater restrictions and consequences to government employees than to anyone else in society. Moral and ethical standards in the law should apply uniformly to all citizens, except in cases where there are reasonable justifications for whole groups of citizens to be treated differently (usually less harshly).

For instance, penalties for certain offenses committed by minor children are much lighter than the punishment for the same offenses committed by adults. But it is rare in law to single out one group, in this case civil servants, who have nothing in common except who their employer is -- and impose harsher penalties on them.

If the minister's plan is indeed to impose a total ban on polygamy for civil servants, what are the legal and political obstacles that stand in the way? Muslims in Indonesia are increasingly engaging in polygamy. Will there be uniformity in the law, so that a total ban imposed on civil servants would apply to everyone in the country? Does the government have the political will and courage to do this?

Progressive Muslims, especially women, have strongly backed the government's plan to amend the laws and regulations on polygamy. But strong opposition has arisen from religious conservatives and Islamic-oriented parties. They stake out two controversial claims. The first regards their interpretation of Islamic teachings in a way that favors polygamy, while the second posits that religious practices should trump national laws. Since polygamy is allowed under Islam, as they interpret it, secular laws should not interfere.

Many Muslim leaders and scholars in the country hold conservative views and interpretations of the Koran's passages that appear to justify polygamy. For them, sharia Islamic law allows a man to be married to four wives simultaneously.

Other Muslims have a quite different interpretation of the same passages, noting in particular that the Koran states that a man must treat all four wives equally. By arguing that it is beyond human ability to treat four wives equally, they claim that polygamy is implicitly forbidden.

If we look at actual practices in the Muslim world, only Tunisia and Turkey have banned polygamy. In 1956, Tunisia enacted the Tunisian Code of Personal Status which provides one year of imprisonment or a fine for a man to engage in polygamy.

Iraq prohibited polygamy in 1959 and specified imprisonment and fines for any violator. Due to strong opposition the law was revised in 1963 and the article prohibiting polygamy was removed. Syria enacted the Syrian Code of Personal Status restricting the right to Polygamy in 1953 by empowering a judge to refuse permission to a married man to marry another women if it is established that he is not in a position to support two wives.

In many cases in Indonesia, men who take second wives inflict psychological violence against their first wives and their families. Polygamists appear unable to put themselves in a wife's place and imagine how damaged or degraded they would feel if the religious laws were more equal and allowed wives to take second, third, or fourth husbands. Even the thought of it is too shocking for most men.

The Indonesian government, if it chooses to do so, has a very strong legal basis and human rights arguments to ban or at least to make very difficult the conduct of polygamy in the country. Vice President and Golkar chairman Jusuf Kalla threw his political support behind the amendment.

If it has the courage to the strict decision on the polygamy, the government will become more popular among the majority of Indonesian women, and the international human rights community.

The writer is an attorney, a lecturer in law at the Yarsi University in Jakarta and a doctoral candidate at the Northwestern University School of Law in Chicago.

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